author: Sognier, Chief Judge.

text:
    A90A2275, A90A2276.
    CONTRACTORS’ BUILDING SUPPLY, INC. et al. v. GWINNETT SASH & DOOR, INC. et al.; and vice versa.
    (403 SE2d 844)
   Sognier, Chief Judge.

Gwinnett Sash & Door, Inc. (“Sash & Door”) and Richard M. Troxel brought suit against Contractors’ Building Supply, Inc. and Robert Magbee on a claim of tortious interference with Sash & Door’s contractual relationships with its employees Edward Cox, Richard Broadnax, and Jimmy Chadwick. The defendants counterclaimed under Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986) and OCGA § 9-15-14. In Case No. A90A2275, we authorized the defendants’ interlocutory appeal from the denial of their motion for summary judgment on the plaintiffs’ claims, and in Case No. A90A2276 the plaintiffs cross appeal from the denial of their summary judgment motion on the counterclaim.

From 1974 until 1988, Sash & Door was engaged in the business of selling building materials and supplies to construction contractors. Richard Troxel was the president and sole shareholder of Sash & Door. Robert Magbee has worked for a number of years in the building supply business in the same geographic area. While employed by Magbee Brothers in 1981, Magbee began contemplating starting his own business. He discussed these plans with Edward Cox, who also was employed by Magbee Brothers at the time, and indicated that he would be interested in hiring Cox to work in such a venture. Within the next year or two, Cox began working for Sash & Door as head of its sales operations. Richard Broadnax was employed as operations manager at Sash & Door, and Jimmy Chadwick worked as a shop foreman. None had a written contract or specified term of employment. Sash & Door had three additional employees, one of whom was Troxel’s wife, who served as the company’s secretary and bookkeeper.

In 1987, Magbee acted on his plan to start a business, and became president and sole shareholder of Contractors’ Building Supply (“Building Supply”). In September 1987, he approached Cox and offered him a position with Building Supply, but Cox declined because of his concern about obtaining insurance to cover his wife’s pre-ex-isting medical condition. Cox then referred Magbee to Broadnax, who was hired by Building Supply in October. Chadwick, in turn, contacted Broadnax about working for Building Supply, and Broadnax hired him without Magbee’s involvement. Soon thereafter, Cox contacted Magbee and asked him to try to work out Cox’s insurance problem, and Cox began work for Building Supply in late December. Both Cox and Broadnax testified that they had been dissatisfied at Sash & Door, and that in the course of his recruitment of them Magbee made no negative statements concerning Sash & Door’s operations or its financial status.

After Cox and Broadnax left Sash & Door, many of their customers followed them to their new employer. Troxel testified that as a result, Sash & Door suffered such a serious decline in sales that it ceased operations at the end of the first quarter of 1988. He and his accountant testified that Sash & Door suffered a net loss after liquidation of $432,000, and that Troxel personally lost almost $58,000 in income.

1. We first note that we have jurisdiction over the cross appeal (Case No. A90A2276) pursuant to Marathon U. S. Realties v. Kalb, 244 Ga. 390, 392-393 (260 SE2d 85) (1979), which stands for the proposition that a cross appeal may be taken from the denial of a motion for summary judgment.

2. Building Supply and Magbee, appellants in Case No. A90A2275, enumerate as error the trial court’s denial of their motion for summary judgment on Sash & Door’s tortious interference claim, contending they pierced Sash & Door’s allegations as to essential elements of the claim. To establish a cause of action for tortious interference with contractual relations, a plaintiff must show that the defendant “(1) acted improperly and without privilege, (2) purposely and with malice with the intent to injure, (3) induced a third party or parties not to . . . continue a business relationship with the plaintiff, and (4) for which the plaintiff suffered some financial injury.” (Citations and punctuation omitted.) Nationwide Adu. &c. v. Thompson Recruitment &c., 183 Ga. App. 678, 679-680 (359 SE2d 737) (1987).

The privilege of fair competition protects the actions of one who establishes a business in close proximity to a competitor or who solicits a competitor’s at will employees provided the standards set forth in Restatement of Torts, § 768 are followed. American Bldgs. Co. v. Pascoe Bldg. Systems, 260 Ga. 346, 348 (2) (392 SE2d 860) (1990). Those standards are: “(1) the relation concerns a matter involved in the competition between the actor and the competitor; (2) the actor does not use improper means; (3) the actor does not intend thereby to create or continue an illegal restraint of competition; and (4) the actor’s purpose is at least in part to advance its interests in competition with the other. [Cit.]” Sofate of America v. Brown, 171 Ga. App. 39, 40 (318 SE2d 771) (1984). Improper means “generally involve predatory tactics such as physical violence, fraud or misrepresentation, defamation, use of confidential information, abusive civil suits, and unwarranted criminal prosecutions.” American Bldgs., supra at 349.

We find that the acts of Building Supply and Magbee fall within the scope of this privilege. Magbee and each of the employees who left Sash & Door testified that Magbee made no statements or representations concerning Sash & Door. Although there is some evidence that Cox contacted the customers he had serviced at Sash & Door, customer lists are not confidential information, and an employee is permitted to solicit his former customers on behalf of a new employer. Nager v. Lad ‘n Dad Slacks, 148 Ga. App. 401, 402 (1) (251 SE2d 330) (1978). The affidavit testimony of Magbee, Cox, Broadnax, and Chadwick rebutted Sash & Door’s allegations that there was a conspiracy to bring financial harm to it, as each testified that he intended only to advance his own career and business interests, Cox and Broadnax explained that they had been dissatisfied with Sash & Door’s management and compensation policies, and the pattern of contacts between the three men and Building Supply does not suggest the existence of a plan or scheme designed to impair Sash & Door’s financial position or induce breaches of employment contracts. See Orkin Exterminating Co. v. Martin Co., 240 Ga. 662 (242 SE2d 135) (1978); compare Architectural Mfg. Co. v. Airotec, Inc., 119 Ga. App. 245 (1) (166 SE2d 744) (1969). Sash & Door has presented no specific facts to rebut this testimony other than Troxel’s testimony that the contacts with the employees were made without his knowledge or consent, which does not place the conduct outside the privilege “to terminate . . . at-will employment, to engage in direct competition, to hire others who formerly worked for [another] employer, even to persuade them that [the competitor] offers better economic opportunity.” Airotec, supra at 250-251 (2).

While on motion for summary judgment the respondent should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences therefrom in favor of the respondent, Southern Business Machines &c. v. Norwest Fin. &c., 194 Ga. App. 253, 256 (390 SE2d 402) (1990), if the defendant-movant presents evidence to pierce an essential element of the claim, the plaintiff-respondent must respond with specific facts showing the existence of a genuine issue to be tried or suffer judgment against it. Richard A. Naso & Assoc. v. Diffusion, 194 Ga. App. 201, 204 (390 SE2d 106) (1990). Accordingly, Building Supply and Magbee having pierced an essential element of Sash & Door’s claim, they were entitled to summary judgment, see id. at 204-205, and the trial court erred by denying their motion.

Decided February 26, 1991

Rehearing denied March 12, 1991

Grizzard, Simons, Martin & Wills, Warren W. Wills, Jr., Dale C. Ray, Jr., Georgiana Rizk, for appellants.

E. Wycliffe Orr, Stewart, Melvin & House, J. Douglas Stewart, for appellees.

3. Building Supply and Magbee also challenge the denial of their summary judgment motion on Troxel’s individual claim for tortious interference. Pretermitting the question whether Troxel has standing to bring suit for alleged interference with the contractual relations of Sash & Door, we hold that the essential element of privilege also was pierced as to his claim for the reasons set forth in Division 2.

4. In Case No. A90A2276, Sash & Door and Troxel contend the trial court erred by denying their motion for summary judgment on the Yost counterclaim filed by Building Supply and Magbee. This court has established that a denial of a defendant’s motion for summary judgment on the main claim constitutes a binding determination that the claim did not lack substantial justification so as to render it frivolous, groundless, or vexatious, and as a result the defendant is not entitled to an award of damages under Yost or OCGA § 9-15-14. Felker v. Fenlason, 197 Ga. App. 476, 477 (2) (398 SE2d 754) (1990). In Colquitt v. Network Rental, 195 Ga. App. 244, 246 (2a) (393 SE2d 28) (1990), we applied this rule to affirm the denial of Yost and OCGA § 9-15-14 damages even though the trial court’s original denial of summary judgment had been reversed by the Supreme Court. The analysis in Colquitt is equally applicable here because, as was the case with the claim in Colquitt, the facts in each tortious interference claim are different and each case must be considered on its facts. Accordingly, we cannot say that Sash & Door and Troxel’s claim “suffer [ed] from such a complete absence of justiciable issues of law and fact that no court would accept it [cits.]” id., and thus we reverse the denial of their motion for summary judgment. See Felker, supra.

Judgments reversed.

McMurray, P. J., and Car ley, J., concur.

       We note that Pascoe cites both Orkin Exterminating Co. v. Martin Co., 240 Ga. 662, 667 (1) (242 SE2d 135) (1978), which adopted the definition set forth in the first edition of the Restatement, and E. D. Lacey Mills v. Keith, 183 Ga. App. 357, 363 (10) (359 SE2d 148) (1987), which followed the second edition of the Restatement. This difference is noteworthy because in the first edition subsection (c), which deals with restraint of trade, includes the element of intent, whereas in the second edition the privilege applies only if the action “ ‘does not create or continue an unlawful restraint of trade.’ ” E. D. Lacey, supra.


source: Caselaw Access Project

license: Public Domain

text:
    A90A2340.
    YELVERTON v. THE STATE.
    (403 SE2d 816)
   Sognier, Chief Judge.

Raymond Yelverton was convicted of child molestation and two counts of aggravated child molestation. He appeals.

The molestations involved acts committed by appellant on his daughter between August 1,1984 and July 31,1987. At trial, a woman who had dated appellant from November 1987 to February 1988 testified that appellant told her he had molested his daughter. The victim, 15 years old at the time of trial, testified at length detailing appellant’s fondling of her and two incidents involving oral sex. Her brother testified to observing appellant and the victim together in a bedroom with appellant’s hand down the front of the victim’s blouse.

1. Appellant contends the trial court erred by admitting testimony by Flossy Smith. She testified that she lived in appellant’s household for over a year, while she was 19 to 20 years old, and that in 1985 he attempted to have sexual relations with her. Smith testified that one night shortly after she had suffered a miscarriage, she awoke suddenly from sleep because appellant, who had entered her room, was touching her vagina. She testified that appellant left when she told him no. There was no evidence that Smith had given appellant reason to believe sexual contact with him would be welcomed. The evidence indicates that this incident occurred during the time the charged molestation of the victim began.

Appellant objected to this evidence at trial on the basis that appellant’s conduct with an adult woman had no relevance to the charged offenses, which involved appellant’s daughter when she was between the ages of nine and 13. “Evidence is relevant if it relates to the questions being tried by the jury, either directly or indirectly, tends to illustrate or explain the issue, or aids the jury in arriving at the truth.” (Citations and punctuation omitted.) Ponder v. State, 194 Ga. App. 446, 449 (7) (390 SE2d 869) (1990). In view of the fact that appellant’s daughter was legally incapable of giving consent to the charged offenses, see Drake v. State, 239 Ga. 232, 233 (236 SE2d 748) (1977) and that appellant’s sexual contact with Smith was without her consent, as it occurred while she was asleep, see Brown v. State, 138 Ga. 814 (1) (76 SE 379) (1912), we find this evidence was relevant to show appellant’s proclivity toward nonconsensual sexual contact. The trial court did not err by admitting it. See generally Ponder, supra.

Appellant also objected to this evidence based on his motion in limine in response to the State’s announcement that it would submit Smith’s testimony as evidence of a similar transaction. “Under well-settled principles of law, evidence of prior [transactions] is generally inadmissible unless the defendant has placed his character in issue. OCGA § 24-9-20 (b). A recognized exception to this rule is that evidence of prior independent [transactions] may be introduced to show motive, intent, plan or scheme, identity, course of conduct. [Cit.] This exception is liberally construed where sexual offenses are involved, evidence of prior sexual offenses being admissible to show the defendant’s lustful disposition. [Cits.] For evidence of prior [transactions] to be admissible for such purposes, two criteria must be met: (1) the defendant must be proven to have been the perpetrator of the prior [transaction], and (2) there must be sufficient similarity between the independent [transaction] and that being tried so that the proof of the former tends to prove the latter. [Cit.] Moreover, the relevance of such evidence to issues on trial must outweigh its prejudicial effect. [Cits.]” Smith v. State, 182 Ga. App. 740, 741 (356 SE2d 723) (1987).

The evidence adduced at trial established that appellant was the perpetrator of the similar transaction. As to the similarity between the prior incident and the charged crime, both involved nonconsen-sual sexual conduct related to younger females in appellant’s household, vulnerable to appellant’s action either because of age or sleep. The prior incident also occurred in the same time frame as the onset of the charged crimes. The fact that the prior incident involved a young woman, 19 to 20 years old, rather than another child nearer the victim’s age does not necessarily render the incident dissimilar. See Mackler v. State, 164 Ga. App. 874, 875-876 (2) (298 SE2d 589) (1982). Therefore, we find that the trial court’s admission of evidence of this prior sexual contact was not error. See Smith, supra at 742-743 (1).

2. Appellant contends the trial court erred by admitting into evidence a photograph taken at a nightclub, showing appellant surrounded by four adult women nude above the waist. Appellant was shown the photograph on cross-examination, identified and described it, and explained the circumstances under which the photograph was shot. The photograph was tendered by the State at the close of the trial, at which time appellant’s counsel objected to admission of the photograph on the basis that “[i]t has no bearing on this case on any issue that’s before the Court.”

First, we note that “[a]n objection to evidence on the ground that it is irrelevant, immaterial and prejudicial is entirely too vague and general to present any question for determination by the trial court,” (punctuation omitted), Hayes v. State, 189 Ga. App. 39, 40 (1) (b) (375 SE2d 114) (1988), so that the overruling of such an objection does not constitute reversible error. Id. Furthermore, the photograph admitted into evidence merely depicted that which was orally described without objection to the jury. Thus, even if the admission of the photograph was error, it was rendered harmless. See Doby v. State, 173 Ga. App. 348, 349-350 (4) (326 SE2d 506) (1985); Rushing v. State, 133 Ga. App. 434, 435 (2) (211 SE2d 389) (1974).

Appellant’s objection to this evidence, set forth above, clearly did not encompass his argument made for the first time on appeal that the photograph improperly placed his character into evidence. “It is well settled that a reason urged by enumeration of error on appeal which is different from that urged below will not be considered for the first time on appeal.” (Citations and punctuation omitted.) Iglesias v. State, 191 Ga. App. 403, 404 (381 SE2d 604) (1989).

Decided February 6, 1991

Rehearing denied March 12, 1991.

L. Clark Landrum, for appellant.

David E. Perry, District Attorney, A. Douglas Newsome, Joseph L. Chambers, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Carley, J., concur.


author: Andrews, Judge.

text:
    A91A0057.
    LITTLETON et al. v. OB-GYN ASSOCIATES OF ALBANY P.C. et al.
    (403 SE2d 837)
   Andrews, Judge.

This appeal is the result of remand to the trial court after OB-GYN Assoc. v. Littleton, 259 Ga. 663 (386 SE2d 146) (1989), which reversed Littleton v. OB-GYN Assoc. of Albany, 192 Ga. App. 634 (385 SE2d 743) (1989).

Mr. and Mrs. Littleton sued her obstetrician, his professional corporation and the hospital for alleged negligence in the delivery of their daughter, who died two days after her birth. In addition to a claim for the child’s wrongful death, Mrs. Littleton sought damages for her own physical injuries, mental suffering and emotional distress she claims to have suffered during the delivery, as a result of alleged medical negligence. On remand the trial court granted partial summary judgment to the defendants on Mrs. Littleton’s claim for her injuries because it found no evidence that she had suffered any physical injury as a result of the alleged negligence. The Littletons appeal from the grant of partial summary judgment.

In Littleton v. OB-GYN Assoc. of Albany, supra, we reversed the trial court’s previous grant of partial summary judgment against the mother’s claim for her injuries, and held that in addition to the wrongful death claim, the mother was entitled to pursue a separate claim for her own injuries suffered as a result of the medical negligence of appellees. The Supreme Court agreed that, “While Mrs. Lit-tleton is not able to sue for emotional distress as part of her wrongful death action for the death of her daughter, she may bring a claim based on malpractice resulting in injuries to her person. This claim may include a claim for compensation for any emotional distress which is a consequential damage resulting from those injuries.” OB-GYN Assoc. v. Littleton, supra at 664. The Supreme Court clarified the impact rule in Georgia by holding that “the impact which will support a claim for damages for emotional distress must result in a physical injury.” Id. at 666 (overruling the decision in Christy Bros. Circus v. Turnage, 38 Ga. App. 581 (144 SE 680) (1928)). Pursuant to the Supreme Court’s reversal this court remanded the case to consider whether there was evidence that the mother suffered an actionable physical injury. Littleton v. OB-GYN Assoc., 194 Ga. App. 787 (391 SE2d 806) (1990).

We now determine if the trial court correctly granted partial summary judgment to the defendants on the basis that Mrs. Littleton suffered no physical injuries. On remand the Littletons amended their complaint and filed supplemental answers to interrogatories, setting out the physical injuries claimed by Mrs. Littleton. We do not find that this subsequent detailing of the physical injuries constitutes testimony which intentionally contradicts statements previously given on this issue. The claim that Mrs. Littleton was also physically injured does not contradict previous assertions that she suffered mentally and emotionally. Accordingly, we find no merit in defendants’ argument that the claim of physical injury should be disregarded as self-contradictory. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986); Combs v. Adair Mortgage Co., 245 Ga. 296 (264 SE2d 226) (1980).

The evidence, viewed in favor of the Littletons as opponents to summary judgment, shows that during the delivery process the defendants negligently failed to diagnose and react appropriately to signs of fetal distress. Prior to delivery Mrs. Littleton was administered a powerful drug, Pitocin, which increased the frequency and strength of her contractions to induce labor. Mrs. Littleton continued for about three hours under the influence of Pitocin prior to the vaginal delivery of her daughter. The Littletons’ medical expert testified that, considering the signs of fetal distress, these procedures were below acceptable standards of medical care; that the administration of Pitocin should have been discontinued, and the baby should have been delivered as quickly as possible by Caesarian section rather than by vaginal delivery.

Nevertheless, defendants contend that Mrs. Littleton suffered no physical injury as a result of their alleged negligence since the medical procedures employed, including the administration of Pitocin, and the physical pain she endured, were no 'more than might be expected by any mother during vaginal child delivery. This argument overlooks the fact that the professional negligence alleged is not that the medical procedures used were improperly performed, but that they were inappropriate under the circumstances. Professional medical negligence may consist of negligent diagnosis resulting in properly performed but inappropriate treatment, as well as a lack of skill or care in applying appropriate treatment. Norton v. Hamilton, 92 Ga. App. 727, 731 (89 SE2d 809) (1955). Nor is the lack of any permanent injury to Mrs. Littleton a bar to recovery since an injury resulting from such negligence need not be permanent in order to justify the award of damages. Sam Finley, Inc. v. Russell, 75 Ga. App. 112, 117 (42 SE2d 452) (1947). The argument that Mrs. Littleton would have endured similar physical pain and suffering in any childbirth procedure, or that a Caesarian section would have been more physically invasive or more painful, does not destroy evidence of a causal connection between the defendants’ alleged negligence and the evidence of physical pain and suffering endured by Mrs. Littleton during the allegedly inappropriate medical procedures. See Beatty v. Morgan, 170 Ga. App. 661, 664 (317 SE2d 662) (1984).

Decided February 25, 1991

Rehearing denied March 12, 1991

Defendants further claim there is no expert testimony that the alleged medical negligence proximately caused an injury to Mrs. Lit-tleton. The Littletons’ expert stated that the administration of Pito-cin intensified the strength and frequency of Mrs. Littleton’s contractions in preparation for the vaginal delivery, and that the use of these procedures deviated' below acceptable standards of medical care. Except in plain and undisputed cases, it is within the province of the finder of fact to consider whether the negligence caused the injury. Horney v. Lawrence, 189 Ga. App. 376, 377-378 (375 SE2d 629) (1988). There was sufficient expert evidence from which a jury could reasonably find that the alleged medical negligence caused physical injury to Mrs. Littleton. Id. at 378. Evidence that Mrs. Littleton endured these painful procedures, which, if they were below acceptable standards of medical care, could not be considered part of a normal delivery, is sufficient to create a genuine issue of fact as to whether she suffered a physical injury as a result of the alleged negligence. See Coughlin v. George Washington Univ. Health Plan, 565 A2d 67 (D.C. App. 1989). The trial court erred by granting partial summary judgment in favor of defendants.

Judgment reversed.

Sognier, C. J., and McMurray, P. J., concur.

William S. Stone, for appellants.

Watson, Spence, Lowe & Chambless, G. Stuart Watson, Dawn G. Benson, Langley & Lee, C. Richard Langley, for appellees.

       We emphasize that any potential award of damages to Mrs. Littleton in the malpractice claim for her injuries is limited to compensation for any physical injury she suffered as a result of the alleged negligence, and any mental suffering or emotional distress she incurred as a consequence of her physical injuries. Any mental suffering or emotional distress she suffered as a result of injuries to her child is not compensable in this claim.


text:
    A91A0314.
    MAPP v. THE STATE.
    (403 SE2d 833)
   Andrews, Judge.

After a jury trial, in which he was represented by appointed counsel and convicted on two counts of obstruction of a law enforcement officer, Mapp brings this pro se appeal.

We address only Mapp’s contention that the trial court erred by not appointing counsel to represent him on appeal. Prior to and during the trial, Mapp was represented by appointed counsel. He was convicted and sentenced on January 31,1990, and while still incarcerated after the conviction, proceeded pro se to file a timely notice of appeal on February 6 and 7, 1990. On June 18, 1990, the court granted Mapp’s request for a free transcript, noting that the defendant “in the past has qualified for court-appointed counsel. . . .” After being released from prison on June 27, 1990, Mapp filed a written motion on July 3, 1990, seeking appointment of counsel to represent him on appeal. On July 17, 1990, the trial court entered an order on the motion finding that since Mapp had been released from prison it could no longer assume that he was indigent, and requiring that he prove his indigency to qualify for appointed counsel. The order reserved ruling on the motion, and ordered that Mapp “may file an affidavit of indigency” with the court and that “Defendant must furnish to the court his proof of indigency within ten days of receipt of this order.” The record contains no evidence of when Mapp received the order. On August 20, 1990, Mapp filed a document denominated “Affidavit of Indigency, Affidavit in Support of Request to Proceed In Forma Pauperis,” in which he requested that he be allowed to proceed without payment of fees and costs on appeal because of his “medical condition and . . . poverty.” On October 25, 1990, the court ordered the clerk to transmit the appeal to this court. That same day Mapp filed a “Motion for Consideration of Affidavit of Indigency by the Court” acknowledging the late filing of his affidavit of indigency and alleging that it was an oversight. On November 6, 1990, the court entered an order denying Mapp’s motion for appointed counsel, finding it untimely “because the Defendant’s appeal has already transmitted to the Court of Appeals.” The record is silent as to whether any hearings were conducted with respect to any of the foregoing motions.

Decided February 22, 1991

Rehearing denied March 12, 1991.

James E. Mapp, pro se.

“Defendants in criminal cases have both a federal and a state constitutional right to be represented by counsel or, in the alternative, to represent themselves. However, it is only indigent defendants for whom the trial court must appoint counsel.” Burnett v. State, 182 Ga. App. 539, 540 (356 SE2d 231) (1987). “This right extends to every indigent accused who indicates his desire to appeal.” McAuliffe v. Rutledge, 231 Ga. 1, 3 (200 SE2d 100) (1973). The burden of proving his indigency, which must be proved to show he was denied counsel, rests with Mapp. Bostick v. Ricketts, 236 Ga. 304, 306 (223 SE2d 686) (1976).

Although Mapp claims he is indigent and entitled to appointed counsel, there is a lack of any evidence in the present record upon which to base a determination of indigency. The mere fact that Mapp was released from prison after the trial is not alone enough to support a finding that his status has changed from indigent to non-indigent. The determination of indigency calls for the exercise of discretion based upon consideration of relevant criteria of indigency. See generally OCGA Title 17, Chapter 12, Article 1, implemented by Uniform Superior Court Rule (USCR) 29; OCGA Title 17, Chapter 12, Article 2, governed by the Guidelines of the Georgia Indigent Defense Council for the Operation of Local Indigent Defense Programs (approved by the Georgia Supreme Court October 4, 1989). Of course, if the lack of information upon which to base a determination of indigency was caused by Mapp he would have no right to complain. However, it is not clear from the record when Mapp received the court’s order that he provide proof of indigency; whether the court considered Mapp’s proof of indigency; or whether the court found that it could not determine indigency due to Mapp’s failure or refusal to provide the necessary proof of indigency. Accordingly, we must remand the case for a hearing to determine whether or not Mapp is indigent.

We therefore dismiss this appeal without prejudice, and remand the case to the trial court for a determination of indigency, and appointment of appellate counsel, if required. Upon completion of this procedure the defendant shall have the right to file an out-of-time appeal.

Appeal dismissed and case remanded.

Sognier, C. J., and Mc-Murray, P. J., concur.

Robert F. Mumford, District Attorney, Cheryl F. Custer, Assistant District Attorney, for appellee.

       The record is silent on whether Mapp was informed of his right to appeal and right to counsel on appeal. Mapp makes no allegations with respect to whether he was so informed.


author: Cooper, Judge.

text:
    A90A1576.
    THOMAS v. THE STATE.
    (404 SE2d 315)
   Cooper, Judge.

Craig Thomas was indicted and tried for malice murder. The jury found him guilty of voluntary manslaughter and he appeals, asserting 16 enumerations of error.

Evidence presented at trial showed that on May 12, 1989, appellant and his girl friend, the victim, had been together drinking beer and liquor from approximately ten in the morning until midnight. At about 7:30 that evening they had gone to appellant’s mother’s house where appellant lived. While appellant socialized with family members, his girl friend retired to the bedroom to drink and watch television. Several hours later, appellant’s girl friend was discovered unconscious on the bed and after police arrived, was pronounced dead. The medical examiner who performed the autopsy testified that he found contusions and bruises on the victim’s face and neck as well as abrasions and contusions on the back of the left shoulder, abdomen and thigh. He further testified that the cause of death was internal bleeding caused by blunt force to the head and neck, and that those injuries could have been inflicted on the victim several hours before her death. Appellant was subsequently arrested and charged with murder. In his statement to the police, he said that after arriving at his mother’s house, his girl friend went to the bedroom; that later that night he went into the bedroom to get a bottle of whiskey and saw his girl friend sitting upright on the bed; and that when he returned to the bedroom several minutes later, he found her lying on her back on the bed with blood coming from her mouth. Appellant denied having argued with the victim that day but admitted that on previous occasions he had twisted the victim’s arm and had also pushed and slapped her. Various members of the victim’s family testified that on prior occasions they had seen appellant punch the victim in the face, beat her with a shoe, kick her, stomp on her and threaten to kill her. The victim’s mother stated that her daughter had not previously suffered a head injury.

1. Appellant contends the trial court erred in refusing to let him impeach several of the victim’s family members. Appellant sought to impeach the testimony of the victim’s family by showing that on several occasions, more than two years before her death, one of her brothers had called the police when he was threatened by another brother and that this brother had also hit the victim with a stick in the presence of their mother. We recognize that “[t]he right of a criminal defendant to impeach the witnesses against him by presenting evidence contrary to theirs is an invaluable one.” Smith v. State, 190 Ga. App. 6, 8 (2) (378 SE2d 349) (1989). However, the evidence proffered by appellant in the instant case was not of sufficient relevance for its exclusion to constitute harmful error. “Although ‘a witness may be impeached by disproving the facts testified to by him,’ [cit.], a witness may not be impeached based upon a discrepancy relating to a wholly immaterial matter. [Cit.]” Brown v. State, 260 Ga. 153, 156 (4) (391 SE2d 108) (1990). Accord Carson v. State, 192 Ga. App. 52 (2) (383 SE2d 619) (1989). Accordingly, the trial court did not err in its ruling.

2. Appellant enumerates as error the denial of his motion in limine seeking the exclusion of testimony concerning his alleged prior beatings of the victim. Appellant argues that the evidence was “similar transactions” evidence which required the State to comply with the notice requirements of Rule 31.3 of the Uniform Rules of Superior Court. We disagree. The appellate courts “ ‘have often held that evidence of prior difficulties between an accused and the victim is admissible to illustrate the accused’s motive, intent, or bent of mind toward the victim. [Cits.]’ [Cit.]” Cannon v. State, 257 Ga. 475, 478 (3) (360 SE2d 592) (1987). In a murder prosecution, testimony of observed arguments and physical violence is “admissible as evidence of the relationship between the defendant and the victim. [Cit.]” Rotino v. State, 259 Ga. 295 (2) (380 SE2d 261) (1989).

3. Appellant contends that the portion of his statement to police in which he admitted having slapped the victim and twisted her arm was improperly allowed into evidence because it was irrelevant and placed his character in evidence. We do not agree. Appellant’s statements relating to his treatment of the victim were illustrative of prior difficulties between him and the victim and, as discussed in Division 2, such evidence is relevant and admissible to shed light on the state of feelings between them and to show motive. “ ‘Evidence which is otherwise admissible is not rendered inadmissible because it incidentally places the defendant’s character in issue.’ [Cit.]” Williams v. State, 259 Ga. 495 (2) (c) (384 SE2d 654) (1989), citing Walraven v. State, 250 Ga. 401, 408 (297 SE2d 278) (1982).

4. Appellant contends that the trial court erred in failing to charge or give a limiting instruction on prior difficulty or similar transaction evidence. “It is axiomatic that where evidence has been admitted for a limited purpose ‘it is not error for the court to fail to instruct the jury to limit its consideration to the one purpose for which it is admissible, in the absence of a request to so instruct the jury.’ [Cits.]” Rayner v. State, 190 Ga. App. 746 (380 SE2d 342) (1989). We do not find that the failure to give this charge, in the absence of a request, was “clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence.” Laney v. State, 184 Ga. App. 463 (2) (361 SE2d 841) (1987).

5. In his third enumeration of error, appellant contends that the trial court erred in denying his motion for mistrial on the ground that the court’s charge was repetitive and contained an improper inference of appellant’s guilt. The trial transcript does not support appellant’s argument. The judge explained that appellant denied his guilt and fully charged on the principles of reasonable doubt, presumption of innocence and the State’s burden of proof, telling the jury that if they did not believe appellant was guilty of any of the offenses or had a reasonable doubt, they should acquit him. The court concluded by instructing the jury that it wanted to “emphasize” that anything it did or said during the trial did not “intimate, hint or suggest which of the parties should prevail. . . .” “ ‘A mere repetition of a principle of law, while unnecessary, will not work a reversal unless it appears from the charge as a whole that there was such undue emphasis as to result in an unfair statement of the law in relation to the defendant’s rights. (Cit.)’ . . . ‘When the charge is read as a whole, we cannot say that it confused or misled the jury or in any manner resulted in an unfair statement of the law as it relates to defendant.’ [Cit.]” Brown v. State, 182 Ga. App. 682 (1) (356 SE2d 663) (1987).

6. In his fourth enumeration of error, appellant complains that the trial court erred in refusing to order the State to produce arrest and conviction records of certain witnesses. The prosecutor stated in his place that one of these witnesses was currently serving a jail term and he had heard that the other two might have a record, but he had no “hard copies or prints or anything as such.” The State is not deemed to be in possession of such criminal records and “ ‘does not “suppress” evidence by refusing to conduct a search for it, even though the evidence may be more accessible to the [S]tate than to the defense.’ [Cit.]” Keller v. State, 253 Ga. 512 (2) (322 SE2d 243) (1984).

7. Appellant’s sixth enumeration of error, that the trial judge improperly expressed an opinion when he stated that the phrase “positive witness” found in OCGA § 24-4-7 was “unfortunate language,” is without merit. The judge instructed the jury that this meant a witness who testified positively rather than negatively to a fact. This statutory language currently contained in OCGA § 24-4-7 has long been judicially recognized as “inaptly stated,” (see Great American Indem. Co. v. Oxford, 68 Ga. App. 884 (1) (24 SE2d 726) (1943)), and we find nothing improper about the judge’s comment.

8. Appellant’s eighth enumeration of error is that the trial court erred in refusing to permit his mother to respond to a question about whether she would have known if a fight had occurred in her house on the evening in question. We find no harm in not allowing the witness to answer the question since she testified almost immediately after-wards that she would have heard it [fighting] if it had gone on.

9. In his ninth enumeration of error, appellant contends that the court erred in allowing the victim’s sister-in-law to testify on direct examination that the victim told the witness the victim was tired of appellant hitting the victim. Appellant objected after the witness made the statement and the trial court sustained the objection. Appellant’s motion for mistrial was subsequently denied. We find no harm in the admission of this testimony in light of appellant’s statement to the police that he had hit the victim before and the testimony from other witnesses that appellant had hit the victim on previous occasions. Ellis v. State, 181 Ga. App, 630 (3) (353 SE2d 822) (1987).

10. The trial court did not improperly comment on the evidence by instructing the jury that the medical examiner was an expert witness, thus invading the jury’s province as exclusive finder of fact. Rather, the judge correctly stated that the expert’s opinion was entitled only to such weight as the jury thought it was entitled, and that the jury was not bound by the expert’s opinion. Such a charge was approved in Jones v. State, 189 Ga. App. 232 (1) (375 SE2d 648) (1988), although the case was reversed because the trial court went further to add his personal opinion as to the expert status of the witness and the credibility of his testimony.

11. The trial judge charged the jury that their verdict must be unanimous and that they should all participate in the deliberations in a businesslike manner with that idea in mind. The judge further stated that it did not matter how long the deliberations took and that the jury should not “get the impression that the court is saying to you that before you can take a vote or do anything you have to go in the jury room, have a great two or three hour discussion.” We find no error with the court’s charge; therefore, appellant’s eleventh enumeration of error is without merit.

12. The trial court did not improperly charge the jury on voluntary intoxication, as both appellant and other witnesses testified that he had been drinking heavily on the day in question. A charge on the| subject was proper regardless of whether his intoxication was raised I as an issue or defense. McKenzie v. State, 249 Ga. 582 (2) (292 SE2d| 692) (1982).

13. In his thirteenth enumeration of error, appellant argues that! the charges on voluntary manslaughter and the alternative count ofl felony murder, given over his objection that there was no evidence ofl a fight indicating heat or passion or the use of a deadly instrument to! justify an aggravated assault, constitute reversible error. He further! argues that the indictment did not specifically allege a felony. At the conclusion of the court’s charge, the judge asked if there were any objections and appellant’s counsel responded that he would reserve objections. In spite of this reservation of objections, appellant’s counsel proceeded to object to the charge on the ground that it improperly intimated that appellant was guilty of a crime. This was the only objection made by appellant and we addressed it in Division 5. “ ‘If the trial court asks whether or not there are any objections to the charge, counsel must either state his objections or reserve his right to object on motion for new trial or on appeal.’ [Cit.] An appellant cannot elect to object at trial to some of the charges and reserve his right to object to additional charges later. When asked if he has any objections by the trial co.urt, appellant either must make all of his objections immediately or else he must reserve his right to object until later. He cannot do both. [Cit.]” Laster v. State, 196 Ga. App. 854 (2) (397 SE2d 191) (1990). Accordingly, we find that appellant has waived his right to object to the alleged improper charge.

14. There was no error in the refusal of the trial court to give appellant’s requested charge on mere suspicion. This principle was thoroughly covered by the court’s charges on reasonable doubt and the State’s burden of proof, and thus an instruction in the exact language requested was not necessary. Casas v. State, 193 Ga. App. 53, 54 (387 SE2d 20) (1989).

15. Appellant was not entitled to a directed verdict on the ground that there was a fatal variance between the allegata and the probata. The indictment for malice murder alleged that the victim was killed by being struck with a “bludgeon object” unknown to the grand jurors. The medical examiner testified that although he could not specifically identify the instrument with which the victim was beaten, in his opinion the intracranial bleeding which caused her death resulted from a blunt force trauma to the head and neck. “A directed verdict is appropriate only where there is no evidence to support a verdict to the contrary. [Cits.]” Hood v. State, 193 Ga. App. 701, 702 (1) (389 SE2d 264) (1989).

16. There was evidence that appellant was with the victim all day and had argued with her. There was also evidence that appellant had beaten the victim on previous occasions. Appellant had no explanation for the victim’s injuries. Appellant’s motion for new trial on the general grounds was properly denied as the evidence adduced at trial was sufficient for a rational trier of fact to find him guilty of voluntary manslaughter beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.

Decided March 12, 1991.

Jonathan J. Wade, for appellant.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Joseph J. Drolet, Joseph F. Burford, Assistant District Attorneys, for appellee.


author: McMurray, Presiding Judge.

text:
    A91A0378.
    AUSTIN v. THE STATE.
    (404 SE2d 477)
    Decided March 12, 1991.

      Douglas R. Daum, for appellant.

      Louise T. Hornsby, Solicitor, for appellee.
   McMurray, Presiding Judge.

Defendant Austin appeals his conviction of the offense of speeding. Held:

Judgment was entered in the City Court of Atlanta on October 8, 1990. Defendant’s notice of appeal was filed on the 31st day thereafter, November 8, 1990. No motion for an out-of-time appeal was filed.

Defendant’s appeal must be dismissed due to the failure to comply with OCGA § 5-6-38 (a). Clay v. State, 194 Ga. App. 354 (391 SE2d 143).

Appeal dismissed.

Sognier, C. J., and Andrews, J., concur.


text:
    A90A1605.
    A90A1606.
    A90A1607.
    A90A1680.
    A90A1681.
    WATKINS v. M & M CLAYS, INC. NIX v. M & M CLAYS, INC. NIX et al. v. M & M CLAYS, INC. M & M CLAYS, INC. v. BURNEY et al. COWART v. M & M CLAYS, INC.
    (404 SE2d 141)
   Andrews, Judge.

These five related cases had their genesis in the 1987 filing of a Wilkinson County complaint by Pearl Burney (appellee in A90A1680) alleging that M & M Clays, Inc. (appellant in A90A1680; appellee in the other four cases) had trespassed upon her property for the purpose of mining kaolin from 1963 until 1971, without her permission or knowledge and without remuneration to her.

M & M answered, contending that Burney’s complaint was barred by the applicable statute of limitation and asserting a counterclaim for abusive litigation under Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986). Two days later, M & M filed a “Third Party Complaint” naming Watkins, a Houston County resident (appellant in A90A1605 and appellee in A90A1680) and Burney as defendants and alleging a conspiracy to commit abusive litigation.

In 1987, the trial court denied M & M’s motion for summary judgment on Burney’s claim relying on the “discovery rule” set out in Lumberman’s Mut. &c. Co. v. Patillo Constr. Co., 254 Ga. 461 (330 SE2d 344) (1985). In 1988, that case was overruled by Corporation of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365 (368 SE2d 732) (1988). The trial court then vacated its previous order and awarded summary judgment to M & M based on the statute of limitation defense.

M & M’s Yost claim was then tried before a jury which returned a verdict in favor of Burney but against Watkins in the amount of $1 in nominal damages, $25,000 in special damages, and $75,000 in punitive damages. M & M then filed a motion pursuant to OCGA § 9-15-14 for attorney fees and expenses of litigation against Watkins and “one or more or all of the attorneys of record therein for [Burney] or [Watkins].” Included were attorneys Nix (appellant in A90A1606 and A90A1607), Watkins, Cowart (appellant in A90A1681), Warren and Evans. The trial court granted the motion against-only Watkins, Nix and Cowart.

The three have appealed this order, consolidating these appeals with the main appeal by Watkins from the Yost verdict, as authorized by Haggard v. Bd. of Regents, 257 Ga. 524 (360 SE2d 566) (1987). M & M has filed a cross-appeal from the trial court’s refusal to rule on its motion for new trial on the general grounds after the notices of appeal were filed.

The brief of M & M contains numerous factual representations as to what occurred at the trial. No transcript was filed by any of the parties to the appeal. M & M did not exercise its rights under OCGA § 5-6-42 to pay for and provide the transcript for purposes of the appeal. This court will not consider unsupported factual assertions made in briefs. Howell Mill/Collier Assoc. v. Pennypacker’s, 194 Ga. App. 169, 171 (2) (390 SE2d 257) (1990).

Case No. A90A1605

1. We consider first Watkins’ appeal from the Yost verdict. The judgment must be reversed on at least two bases.

(a) First, in response to the “third party claim,” Watkins filed defenses based on lack of personal jurisdiction and improper venue.

Art. VI, Sec. II, Par. IV of the 1983 Georgia Constitution provides that “[s]uits against . . . joint tort-feasors . . . residing in different counties may be tried in either county.” The only basis upon which the Wilkinson County court could have acquired jurisdiction over Watkins was by his joinder with Burney as a joint tort-feasor.

“The only time the defense of lack of jurisdiction over the person of the nonresident [defendant] because of . . . nonresidency would be valid ... is in the event of a judgment in favor of the resident joint defendant. . . . [Cit.]” Lansky v. Goldstein, 136 Ga. App. 607, 608 (2) (222 SE2d 62) (1975). Crawford v. Randle, 191 Ga. App. 112, 114 (1) (381 SE2d 77) (1989). Once the verdict was returned in favor of Bur-ney, Wilkinson County’s jurisdiction over Watkins ceased. Smith v. United Ins. Co., 169 Ga. App. 751, 753 (2) (315 SE2d 265) (1984).

The remaining option, the Uniform Transfer Rules, 251 Ga. 893 et seq., was not exercised. Crawford, supra at 116 (2). Therefore, the Yost judgment was void as to Watkins for lack of personal jurisdiction.

(b) Secondly, in defining the new tort, Yost made it available only against “parties” to the underlying litigation. Yost, supra at 96 (13); see Vogtle v. Coleman, 259 Ga. 115, 119 (3) (376 SE2d 861) (1989).

The Civil Practice Act provides only for the following pleadings: complaint, answer, counterclaim, third-party complaint and third-party answer. OCGA § 9-11-7. Third-party practice allows a defend-! ant or a plaintiff/defendant in counterclaim to bring in as a party one! “who is or may be liable to him for all or part of the . . . claim! against him.” OCGA § 9-11-14. |

Here, Watkins was not a defendant or plaintiff and there is ncl indication in the third-party complaint as to any basis for believing! Watkins could in any way be responsible to M & M for damages ill might owe Burney. Third-party practice may not be used by a del fendant such as M & M to impose direct liability upon the third! party defendant instead of secondary liability as required by the statute. McCormick v. Rissanen, 177 Ga. App. 623 (340 SE2d 268) (1986)

Therefore, there was no Yost claim available to M & M againsi Watkins.

Case No. A90A1606

2. In this appeal, Nix, former attorney of record for Burney and Watkins’ attorney during the Yost claim trial, seeks to appeal the judgment entered in the Yost trial. That judgment, however, does not name Nix as a party. Nix, not being aggrieved by that judgment, has no right to except thereto. Cooper Motor Lines v. B. C. Truck Lines, 215 Ga. 195 (1) (109 SE2d 689) (1959). Therefore, this appeal is dismissed.

Case Nos. A90A1605, A90A1607 & A90A1681

3. These three appeals by Watkins, Cowart and Nix are from the order imposing OCGA § 9-15-14 attorney fees and expenses upon them.

(a) As to Watkins, since he was not a party to the underlying claim nor was he an attorney for a party, the court had no authority under that section to impose these fees and expenses on him. Therefore, the order imposing these upon him is reversed.

(b) Burney’s complaint was filed on January 26, 1987, and the only attorney’s name on it was Warren’s. After the Yost counterclaim was filed in February, Nix appeared as counsel on Burney’s Answer to the Counterclaim. Nix withdrew from the case on March 8, 1988, after [which Evans took on her representation. With the exception of his [withdrawal from the case on June 10, 1987, Cowart’s name does not appear in the record.

The premise of M & M’s § 9-15-14 motion and the order granting it was that the claim asserted on behalf of Burney lacked substantial justification and was one with respect to which there existed such a complete absence of law and fact that it could not be reasonably be-a court would accept it. It was not based upon Nix’s represen-ation of Watkins on the Yost claim.

The jury in the Yost trial, by returning a verdict for Burney, later educed to judgment, rejected this contention with regard to her un-lerlying claim. This determination thereafter bound the parties and their privies. OCGA §§ 9-12-40; 9-12-42; Roberts v. Porter, Davis &c., 193 Ga. App. 898, 900 (1) (389 SE2d 361) (1989).

Also, the court’s denial of M & M’s summary judgment motion nemised on the statute of limitation defense precludes the conclusion hat the position taken by Burney under the discovery rule lacked nerit. Colquitt v. Network Rental, 195 Ga. App. 244, 246 (2 b) (393 SE2d 28) (1990); Bouchard v. Fowler, 193 Ga. App. 697, 698 (388 SE2d 874) (1989); Biosphere Indus. v. Oxford Chemicals, 190 Ga. App. 613, 614 (379 SE2d 555) (1989).

Therefore, the imposition of attorney fees and costs upon Nix and Cowart was improper and that order is vacated. Coker v. Mosley, 259 Ga. 781, 782 (2 c) (387 SE2d 135) (1990).

Decided February 28, 1991

Rehearing denied March 14, 1991.

Franklin R. Nix, for Watkins and Nix.

Dickens & Associates, G. L. Dickens, Jr., for M & M Clays.

Roosevelt Warren, W. Allen Evans, for Burney.

Edwin S. Varner, for Cowart.

Case No. A90A1680

4. Finally, M & M appeals the trial court’s denial of its motion for new trial on the general grounds. The denial was based on the court’s erroneous conclusion that it could not consider the motion because it was filed after the notices of appeal. Housing Auth. of Atlanta v. Geter, 252 Ga. 196, 197 (312 SE2d 309) (1984). This case is remanded for hearing on that motion.

Appeal dismissed in Case No. A90A1606; judgments reversed in Case Nos. A90A1605, A90A1607, and A90A1681; judgment reversed and case remanded in Case No. A90A1680.

Pope and Beasley, JJ., concur.

       No transcript was filed and the record does not affirmatively reveal that Watkins is an ittorney. Assuming that he was, there is no indication that he ever appeared in the proceed-ngs representing Burney.

       Watkins’ OCGA § 9-15-14 fees and expenses will be addressed with those of the other attorneys.

       After April 3, 1989, under OCGA § 51-7-80 et seq., the statutory abusive litigation claim, claims are not limited to “parties,” but may be made against any person who activelj initiates, continues, or procures abusive proceedings.


author: Banke, Presiding Judge.

text:
    A90A2062.
    BRAND BANKING COMPANY v. ROOSMAN et al.
    (404 SE2d 286)
   Banke, Presiding Judge.

The appellant, Brand Banking Company, brought suit against the appellees, Tom Roosman and Nash Chevrolet, seeking to recover the balance owing under two promissory notes executed by Roosman plus punitive damages for alleged fraud on the part of both defendants. The case was tried before a jury. Roosman did not file an answer or appear at trial, and a judgment was returned against him on both counts, with damages and attorney fees for the alleged fraud being set by the jury at $34,000. The jury returned a verdict in favor of Nasi Chevrolet, and the case is before us on appeal from the denial of the bank’s motion for new trial.

Roosman submitted a credit application to Nash Chevrolet tc qualify for the purchase of a new automobile costing approximate^ $14,600. He was advised by the dealership’s credit manager that its lender, First Atlanta Bank, would approve a loan for only half tha amount, meaning that he (Roosman) would be required to make ¿ cash downpayment of approximately $7,300 in order to acquire the vehicle. Roosman then applied to the appellant bank for a $7,300 automobile loan, representing to the branch manager that he had already paid a cash deposit on the vehicle in the amount of $7,300 and needed to borrow the remaining $7,300. The appellant’s manager approved a three-year loan in the amount of $7,300 and then turned the matter over to the bank’s loan processor with instructions to advise the dealership to list the appellant on the certificate of title as the holder of the primary security interest on the vehicle. The appellant’s loan processor testified that she thereafter telephoned the dealership, asked for the person “handling the loan for Tom Roosman,” and was connected with a man (whom she could not identify by name) to whom she gave the bank’s “lien holder number.” Roosman was subsequently issued a $7,300 check by the appellant, made payable to and later negotiated by Nash Chevrolet.

Roosman failed to make the first payment on the loan when it came due; and when the appellant’s manager sought to repossess the car, he learned that the appellant had not received the certificate of title to the vehicle. Following repeated phone calls to Nash Chevrolet, the appellant ultimately learned that First Atlanta had loaned Roos-man $7,349.38 to purchase the car and was listed on the certificate of title as holder of the first security interest. The appellant thereafter purchased an assignment of Roosman’s First Atlanta note for $7,473.21 and repossessed the vehicle. The appellant alleged that by its actions, Nash Chevrolet had fraudulently led it to believe that it would be listed on the certificate of title as the holder of the first security interest. Held:

1. The appellant contends that the trial court erred in refusing to admit the deposition of appellee Roosman, who, as previously indicated, failed to appear at trial. Under OCGA § 9-11-32 (a) (2), “[t]he deposition of a party . . . may be used by an adverse party for any (purpose.” It follows that the trial court erred in refusing to admit the deposition. However, we conclude the error was harmless under the circumstances of this case. See generally North Ga. Feed &c. Co. v. Ultra-Life Labs., 118 Ga. App. 149 (1) (162 SE2d 803) (1968). Although the appellant contends that the deposition would have established that Nash Chevrolet was aware of Roosman’s assurances to the bank manager that the bank would be listed on the title certificate as the holder of the first security interest in the vehicle, Roosman’s testimony in this regard was merely that the manager had asked him to “get the title to him, to Brand Bank,” and that he had responded by telling the manager, “As far as I am concerned, you are getting the title to the car.” While Roosman further testified that it was his understanding that the bank’s loan processor had received telephone verification from Nash Chevrolet that the bank would “get the title,” it is apparent that he was not actually present when this telephone conversation took place. Thus, his deposition testimony had no probative value on the issue of what communications occurred between the appellant and Nash Chevrolet, nor is there anything in his deposition which would suggest that Nash Chevrolet was a party to any misrepresentations he may have made to the appellant.

Decided February 27, 1991

Rehearing denied March 14, 1991

Pruitt & Britt, Glyndon C. Pruitt, for appellant.

John F. Doran, Jr., for appellees.

2. The appellant contends that the trial court erred in granting a partial directed verdict to Nash Chevrolet with respect to its claim for compensatory damages and in instructing the jury with respect to that ruling. The appellant had sought $14,649.38 in damages from the dealership as compensation for the “economic loss” it had allegedly suffered as a result of Roosman’s default on the two promissory notes. The trial court’s ruling was apparently predicated on a finding that the evidence was insufficient to establish the amount of damages the bank had suffered as a result of the default because there was no showing of the value of the vehicle at the time of its repossession. We agree that there was no basis upon which the jury could have calculated with reasonable certainty the amount of damages sustained by the appellant as a result of the alleged fraud, and we further observe that the appellant was under no circumstances entitled to be compensated both for the loan which it had made to Roosman and for the loan which First Atlanta Bank had made to him.

3. The appellant contends that the trial court erred in refusing to give its requested charge on the principles of agency. “The requested charge not given by the trial court was covered generally by the charge as given. Therefore, its refusal was not error.” James v. Vinson, 244 Ga. 429 (260 SE2d 337) (1979).

4. The trial court did not err in denying the appellant’s motion for new trial on the general grounds, inasmuch as the jury was clearly authorized to determine from the evidence that Nash Chevrolet had neither made any misrepresentation to the appellant nor been a party to any misrepresentation which may have been made by Roosman. See generally Eckerd’s Columbia, Inc. v. Moore, 155 Ga. App. 4, 5 (270 SE2d 249) (1980).

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A90A2113.
    HOLMAN v. BURGESS.
    (404 SE2d 144)
   Banke, Presiding Judge.

The appellee sued the appellant, her former landlord, seeking to recover “general and special damages” in the amount of $250,000 plus punitive damages in the amount of $500,000, based on allegations that he had trespassed on the rented premises and converted or destroyed certain items of personal property belonging to her. In connection with her claim for punitive damages, the appellee served the appellant with a request for production of certain financial records relating to his worldly circumstances, including the following: All of his income tax returns filed from 1986 through 1989, either individually or jointly with others; paycheck stubs or other documents showing his income employment from 1986 to the present; records of any bank checking and savings accounts maintained by him either individually or jointly with others; all records evidencing his ownership of property interests, either individually or jointly with others, “including reversionary interests, notes, corporate agreements, partnership agreements, profit sharing statements, pension plan statements and savings account passbooks”; any warranty deeds, quitclaim deeds and security deeds naming him as grantee or grantor, individually or jointly with others, with respect to any property in which he had any interest or equity; all automobile tag registration certificates naming him as owner, either individually or jointly with others; all stock certificates, bond certificates, and mutual fund certificates “and any other evidence of ownership of any interest in any corporation, fund or trust fund,” either individually or jointly with others; copies of any intangible tax returns filed by him, either individually or jointly with others, for the years 1986 through 1989; the contents of any safe deposit boxes maintained by him, either individually or jointly with others, as of the date of the service of the complaint; any “personal financial and/or net worth statements” submitted by him to any bank from 1986 to the present; all documents and/or letters received by ihim from 1986 to the present “from any real estate agent, attorney, (accountant, bank officer, stock broker, or any other person,” notifying ■him of his interest in any corporation, trust, reversionary interest, or in any real or personal property”; all insurance policies on his life; and all “evidence of income from and interest in Social Security, retirement plans and pensions.”

The applicant objected to this request for production on the grounds that it sought information which was “irrelevant and immaterial to the issues in th[e] case” and was intended to “harass, burden )r otherwise embarrass [him] both prior to and during the trial.” However, the trial court granted a motion by the appellee to compel ’esponses to it. The case is currently before us on interlocutory appeal from that ruling. Held:

In concluding that the requested items were discoverable, the trial court relied on footnote 13 of Hospital Auth. of Gwinnett County v. Jones, 259 Ga. 759, 764 (386 SE2d 120) (1989), wherein the Supreme Court stated that “[u]nder the [Tort Reform Act of 1987], Ga. L. 1987, p. 915, evidence of the financial circumstances of the defendant may be admissible” on the issue of punitive damages. Prior to the enactment of the Tort Reform Act of 1987, juries were not allowed to consider evidence of the defendant’s financial worth in assessing punitive damages for deterrence pursuant to OCGA § 51-12-5 but were allowed to consider such evidence in tort actions filed pursuant to OCGA § 51-12-6, “in which the entire injury is to the peace, happiness, or feeling of the plaintiff.” See Bob Maddox Dodge v. McKie, 155 Ga. App. 263, 264 (3) (270 SE2d 690) (1980); Hodges v. Youmans, 129 Ga. App. 481, 486 (200 SE2d 157) (1973). The reason such evidence was admissible in actions filed pursuant to OCGA § 51-12-6 was that this Code section specified that “the worldly circumstances of the parties” was a factor to be weighed in such actions. However, the 1987 Act deleted this language and rewrote § 51-12-6 to specify that punitive damages are not recoverable in such actions. Ga. L. 1987, pp. 919-920.

The 1987 Act also created a new OCGA § 51-12-5.1, governing the assessment of punitive damages in tort actions generally. That Code section provides, in pertinent part, as follows: “(c) Punitive damages shall be awarded not as compensation to a plaintiff but solely to punish, penalize, or deter a defendant, (d) (1) An award of punitive damages must be specifically prayed for in a complaint. In any case in which punitive damages are claimed, the trier of fact shall first resolve from the evidence produced at trial whether an award of punitive damages shall be made. This finding shall be made specially through an appropriate form of verdict, along with the other required findings. (2) If it is found that punitive damages are to be awarded, the trial shall immediately be recommenced in order to receive such evidence as is relevant to a decision regarding what amount of damages will be sufficient to deter, penalize, or punish the defendant in light of the circumstances of the case. It shall then be the duty of the trier of fact to set the amount to be awarded. . . .” (Emphasis supplied.)

In footnote 13 of Hospital Auth. of Gwinnett County v. Jones, supra, the Supreme Court expanded upon this language as follows: “Since the standard for measuring damages is judicially created, . . . we recommend that trial courts, even under the new statute, . . . consider charging the jury on the factors appropriate to the verdict. Such factors may include: (1) the nature and egregiousness of the defendant’s conduct; (2) the extent and duration of the defendant’s wrongdoing and the possibility of its recurrence; (3) the intent of the defendant in committing the wrong; (4) the profitability of the defendant’s wrongdoing; (5) the amount of actual damages awarded; (6) previous awards of punitive damages against the defendant; (7) potential or prior criminal sanctions against the defendant based upon the same wrongful acts; and (8) any other pertinent circumstances. [Cit.] Under the new law, Ga. L. 1987, p. 915, evidence of the financial circumstances of the defendant may be admissible.” (Emphasis supplied.) Id. at 764.

Since evidence of the defendant’s financial circumstances “may” be admissible under the 1987 statute after a jury has determined that punitive damages are to be awarded, it necessarily follows that evidence of the defendant’s financial condition “may” be discoverable by the plaintiff in cases where punitive damages are sought. See generally OCGA § 9-11-26 (b) (1). However, the potential for abuse created by such a discovery right is obvious. Indeed, it is conceivable that an unscrupulous plaintiff might use the threat of such discovery to extort an unwarranted settlement from a defendant. Recognizing the potential for such abuse, this court has previously indicated that a trial court may refuse to enforce such a discovery request where it appears “more calculated to burden the [defendants] than ... to lead to admissible evidence.” Mitzner v. Hyman, 175 Ga. App. 311, 313 (333 SE2d 182) (1985). That concern obviously is present in the present case, since a more intrusive and burdensome discovery request than the one filed by the appellee is scarcely imaginable.

In balancing the plaintiff’s right of discovery against the defendant’s right to privacy in such cases, the majority of those jurisdictions which has considered the issue has been unwilling to permit discovery of the defendant’s financial condition based on the plaintiff’s mere allegation that he is liable for punitive damages but has instead required the plaintiff to make a prima facie showing of the facts giving rise to such liability. See Gierman v. Toman, 185 A2d 241, 244 (N.J. Super. 1962); Rupert v. Sellers, 368 NYS2d 904 (App. Div. 1975); Cox v. Theus, 569 P2d 447 (Okla. 1977); Leidholt v. Dist. Ct. of Denver, 619 P2d 768 (Colo. 1980); Campen v. Stone, 635 P2d 1121, 1132 (Wyo. 1981); Bryan v. Thos. Best & Sons, 453 A2d 107 (Del. 1982); Larriva v. Montiel, 691 P2d 735, 738 (Ariz. 1984). See generally Anno.: Necessity of Determination or Showing of Liability for Punitive Damages Before Discovery or Reception of Evidence of Defendant’s Wealth, 32 ALR4th 432. Moreover, even in those jurisdictions where no absolute requirement has been imposed to this effect, it has been held that the trial courts nevertheless have the authority to consider whether an evidentiary basis exists for the punitive damage claim before compelling responses to such discovery. See Tennant v. Charlton, 377 S2d 1169 (Fla. 1979); Cobb v. Super. Ct. of Los Angeles County, 160 Cal. Rptr. 561 (Cal. App. 1979). Also, it has been held almost uniformly that where pre-trial discovery of the defendant’s financial resources is authorized, the scope of such should be restricted to the extent necessary to prevent an unreasonable intrusion into the defendant’s privacy. See Rupert v. Sellers, supra, 368 NYS2d at 913; Leidholt v. Dist. Ct. of Denver, supra, 619 P2d at 771-772; Gierman v. Toman, supra, 185 A2d at 244; Cobb v. Super. Ct. of Los Angeles County, 160 Cal. Rptr., supra. Accord Borenstein v. Blumenfeld, 151 Ga. App. 420, 421 (260 SE2d 377) (1979) (holding, in a case where punitive damages were not at issue but where the appellant’s financial condition was nevertheless arguably relevant, that the interests of justice did not require the appellant to produce his federal income tax returns).

Decided March 4, 1991

Rehearing denied March 14, 1991

Newton, Smith, Durden & Kaufold, Wilson R. Smith, for appellant.

Lissner, Killian, Cunningham & Zacker, Robert P. Killian, Alan P. Layne, for appellee.

In accordance with the pronounced trend established by the foregoing authorities, we hold that the appellee in this case was not entitled to discover information concerning the appellant’s personal financial resources absent an evidentiary showing (by affidavit, discovery responses, or otherwise) that a factual basis existed for her punitive damage claim. Additionally, we hold that the request for production submitted by the appellee in this case was so manifestly burdensome and oppressive that the trial court would not have been authorized to compel responses to it even had such an evidentiary showing been made.

Judgment reversed.

Birdsong, P. J., and Cooper, J., concur.


author: Beasley, Judge.

text:
    A90A2161.
    KUCHENMEISTER et al. v. THE STATE.
    (403 SE2d 847)
   Beasley, Judge.

Jerome and Glenda Kuchenmeister, husband and wife, were tried jointly and convicted of arson in the first degree.

1. Appellants both enumerate as error, because it placed Jerome Kuchenmeister’s character in issue, the admission into evidence that Jerome had beaten his children.

The principal State’s witnesses were Glenda’s daughter Audrey Cannon, Audrey’s husband Gary, and David Young.

Audrey Cannon testified as follows: Her mother was trying unsuccessfully to sell a residence she owned. She was complaining about being unable to make mortgage and utility payments. In October 1985, Audrey overheard appellants and David Young talking about burning the house down. Prior to the fire, Glenda instructed Audrey to get her things out of the house, which she did.

At approximately 3:30 a.m. on October 18, the fire department responded to a fire at the house. The fire marshal testified that arson was suspected. An investigation was conducted and was initially closed due to insufficient evidence.

Gary Cannon testified that after the fire, Jerome admitted to him that he had started it and had gotten away with it by making it look like an electrical shortage.

David Young testified that appellants asked him to burn the house down in return for a share of the insurance proceeds. On the evening of October 17, he said Jerome left various flammable objects in the pantry of the house and, pursuant to his instructions, Young went to the house in the early morning hours of October 18 and ignited the fire.

On August 31, 1987, when Audrey and Gary Cannon were living in a trailer behind appellants’ home, a heated argument between Audrey and her mother occurred. Testimony concerning the details surrounding this altercation is conflicting, but it is undisputed that Jerome became embroiled. Tempers flared; Audrey picked up a knife; Jerome picked up a pair of scissors; death threats were made.

Audrey testified that after the argument her sister, Tammy Kemp, told her that her mother was so upset with Audrey that she had told the fire marshal that Audrey had burned the house down. Shortly thereafter, Audrey persuaded David Young to admit his involvement in the arson to the fire marshal, which he did. Young pleaded guilty and testified against the Kuchenmeisters at trial.

The prosecuting attorney cross-examined Glenda about Jerome’s involvement in the argument between Audrey and herself. He asked whether Jerome had a violent temper, and she responded that he did not. When he began asking about Jerome’s children, defense counsel objected.

In a bench conference, the prosecuting attorney stated that Jerome had beaten his children so badly that they were put in foster homes by DFCS. The State argued that this was relevant to show that Jerome was the aggressor in the argument between Glenda and Audrey. He also argued that it would establish the circumstances leading to Audrey’s reporting Jerome and Glenda to the fire marshal.

The court ruled that the State could question the witness about lets toward the children showing Jerome’s bad temper but not about any proceedings instituted against Jerome by the DFCS. Defense counsel objected, stating: “The question of Mr. Kuchenmeister’s temper is not relevant, and it is not material to the charge of arson. It has no bearing on the charge of arson, and the only relevancy of the events of the 31st of August are what may have motivated Audrey to go to [the fire marshal] after two years.” The State then questioned Glenda briefly about Jerome’s violent temper as manifested in severe beatings to the children.

Audrey Cannon was called by the State as a rebuttal witness. Over objection, she testified: In August 1987, Jerome’s children had been staying with her. Appellants “were real ill and hateful to the kids,” although Jerome was the more hateful. “A lot of times it was just yelling at the kids when it was unnecessary. Other times it was whipping them to the extent that they would have bruises or blood up under the skin or that type of thing.” On the evening of August 31, the children stayed with Audrey. The following day, her mother told Audrey that if she did not return the children, she was going to charge Audrey and Gary with kidnapping. When Audrey told the children she was taking them home, they became hysterical. Audrey took the children to the DFCS. Glenda swore out kidnapping warrants, which were dismissed by the magistrate.

Defendant moved for a mistrial after Audrey testified that the children had bruises or blood up under their skin. The court denied the motion for mistrial but stated that curative instructions would be given to the jury. It further advised: “I will ask you for your input on what those curative instructions should be, if you want it mentioned. If you prefer that it be left as it is and nothing further said to the jury, I will do that too.”

The general character of the defendant is irrelevant and immaterial unless he chooses to place his character in issue. Askew v. State 135 Ga. App. 56, 57 (1) (217 SE2d 385) (1975); OCGA § 24-2-2. Yet, other crimes committed, by the defendant may be admitted for the purpose of illustrating such things as motive, plan, scheme, bent oi mind, and course of conduct. Hicks v. State, 232 Ga. 393, 397 (207 SE2d 30) (1974). Nevertheless, even where these independent grounds for the admission of evidence of other crimes are present, the prejudice it creates must be outweighed by the relevance of the evidence to the issues at trial. Id. In this case, acts of cruelty to childrer by the defendant have no relevance whatsoever to the issues on trial The citation to Carroll v. State, 155 Ga. App. 514, 515 (1) (271 SE2c 650) (1980), is inappropriate because it and the cases cited therein are inapplicable. They hold that where the veracity of a witness has been placed in issue, the witness may testify that the defendan threatened the witness, thereby influencing or seeking to influence the witness’ pretrial statements or testimony at trial.

Decided February 26, 1991

Rehearing denied March 14, 1991

Edward W. Clary, Chandelle T. Summer, for appellants.

C. Andrew Fuller, District Attorney, William M. Brownell, Jr., Assistant District Attorney, for appellee.

However, where 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. Stanley v. State, 250 Ga. 3 (2) (295 SE2d 315) (1982). Appellant expressly declined the trial court’s offer to give cautionary instructions to the jury and stated that he would stand on his motion for mistrial. In this case, we cannot say that, as a matter of law, the giving of cautionary instructions would have been inadequate so that a mistrial was demanded. See Givens v. State, 184 Ga. App. 498, 499 (2) (361 SE2d 830) (1987); Griffin v. State, 251 Ga. 431, 433 (5) (306 SE2d 283) (1983).

The complained-of evidence is that Jerome beat the children. Even if a mistrial was granted as to Jerome, it would not affect the status of Glenda. Howell v. State, 164 Ga. App. 321 (1) (296 SE2d 367) (1982).

2. Glenda Kuchenmeister contends that a new trial, sought by motion and based upon newly discovered evidence, was required.

In the motion for new trial, appellants stated that it had come to their attention after the trial that Audrey’s paternal grandmother, a 75-year-old woman living in Hall County, stated she had overhead Audrey and Gary discussing plans to frame appellants for burning the house.

Appellant did not obtain the woman’s affidavit nor account for its absence. Thus there is no concrete indication as to what the newly discovered evidence would be, if a new trial were had. The trial court did not err in overruling the motion for new trial. See Timberlake v. State, 246 Ga. 488, 491 (271 SE2d 792) (1980); OCGA § 5-5-23.

Judgment affirmed.

Pope and Andrews, JJ., concur.


text:
    A90A2257.
    JOHNSON v. THE STATE.
    (404 SE2d 139)
   Beasley, Judge.

Appellant was convicted of four counts of rape, two counts of kidnapping, four counts of robbery by intimidation, two counts of aggravated assault, and one count of criminal attempt to commit rape. There were four female victims on four separate occasions occurring over a six-month period of time. Appellant enumerates as error the denial of new trial, to which he claims he was entitled as a matter of law because of ineffective assistance of trial counsel, under the Sixth and Fourteenth Amendments to the United States Constitution.

The course of the trial is necessary to a consideration of the asserted error.

The offenses were committed in the same geographical area, at or close to a certain store. Each victim testified that the perpetrator was approximately 6’ to 6’2” tall, weighed approximately 190 to 220 pounds, and wore a ski mask. Each victim was raped and then robbed. Culpepper and Deloach did not see the face of their attacker and could not positively identify him. Boler and Lewis did see the face, and each identified Johnson as her attacker.

Defense counsel did not cross-examine Culpepper or Deloach.

After Boler testified on direct examination that she had identified appellant after viewing a line-up, defense counsel established on cross-examination that she had initially identified another individual in the line-up, although she later determined that appellant was the rapist. Counsel also established no fingerprint analysis had been made of Boler’s pocketbook or of doorknobs and other furniture in her house, items which the assailant had touched.

Counsel extensively cross-examined Lewis as to her opportunity for viewing her assailant and her identification at the line-up.

A law enforcement officer and a police investigator testified that Boler and Lewis both identified appellant as their assailant in lineups.

On cross-examination of the officer, counsel established that there was a notation in his incident report that Lewis had not identified appellant. He also established that Boler had picked out appellant and another individual named Walker whom the officer did not investigate.

In cross-examining the investigator, counsel elicited testimony that the officer was standing in the back of the room when Lewis identified appellant, explaining the notation in the incident report. However, the investigator had not made a written report and his testimony was based on recollection. Counsel also established that no legible fingerprints were found at the crime scenes and that Walker had also been a suspect. Cross-examination of this witness also revealed a statement appellant gave to the police in which he continually stated he was innocent and offered to take a lie detector test.

A State Crime Laboratory criminologist testified that a microscopic comparison of known pubic hairs taken from appellant and unknown pubic combings taken from Culpepper, Deloach, and Boler were indistinguishable, and that all of the combings exhibited a certain hair disease.

Counsel asked the witness whether the unknown hair samples could have been Walker’s; the witness responded that Walker’s hair samples had been examined and they were dissimilar. Counsel did establish that hair samples are not as accurate as fingerprints, that Caucasian hair samples taken from appellant’s clothing were inconsistent with hair samples taken from the victims; that there was no fiber evidence; that fragments of Negroid limb or body hair taken from Boler’s clothing had similarities and dissimilarities to appellant’s hair samples; that DNA testing was not performed.

Appellant bases his ineffective assistance claim on the following omissions on trial counsel’s part. He failed to call the woman with whom he lived as an alibi witness after an objection was made by the State and it was established that this witness had been watching the trial on a television monitor outside the courtroom. He only filed four pretrial motions: a demand for appellant’s statements, a demand for scientific reports, a demand for a list of witnesses, and a Brady motion; the State filed a list of witnesses, but there is no response in the record to the other motions. No motion for bond appears of record. Counsel did not file a demand for speedy trial, even though appellant had requested that such a demand be filed. Counsel did not move to suppress evidence. Counsel did not call available character witnesses. Counsel did not move to sever the offenses against the different victims. One count of the indictment names no victim, and no demurrer was filed. Counsel did not file any written requests for jury charges.

A hearing was held on appellant’s ineffective-assistance claim. Only appellant, and not trial counsel, testified at this hearing.

“ ‘The bench mark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ Strickland v. Washington, [466 U. S. 668] (104 SC 2052, 80 LE2d 674) (1984). In order to prevail on an ineffectiveness claim, a convicted defendant must show (1) ‘that counsel’s performance was deficient,’ i.e., that counsel’s performance was not reasonable under all the circumstances, and (2) that this ‘deficient performance prejudiced the defense,’ i.e., that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ [466 U. S. at 687, 694]. ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ Ibid.” Ford v. State, 255 Ga. 81, 85 (8) (335 SE2d 567) (1985); Richardson v. State, 189 Ga. App. 113, 114 (375 SE2d 59) (1988).

Appellant has made no showing that the omissions charged to trial counsel were not reasonable under all the circumstances, i.e., that they constituted deficient performance. Nor does he show how he was harmed by any of the allegedly erroneous omissions, i.e., that, but for the noted omissions, there is a reasonable probability that the outcome of the trial would have been different.

Decided February 27, 1991

Rehearing denied March 14, 1991

Terry T. Everett, for appellant.

Edward D. Lukemire, District Attorney, Shelley S. Howard, Assistant District Attorney, for appellee.

“No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Any such set of rules would . . . restrict the wide latitude counsel must have in making tactical decisions.” Strickland v. Washington, 466 U. S. at 688, supra. “Judicial scrutiny of counsel’s performance must be highly deferential. . . . There are countless ways to provide effective assistance in any given case.” Id. “[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Id. at 690. “[A] court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.” Id. at 695.

Judgment affirmed.

Pope and Andrews, JJ., concur.


text:
    A90A2287.
    HUDSON v. GAINES.
    (403 SE2d 852)
   Beasley, Judge.

Gaines sued Hudson, seeking damages for breach of express and implied warranties of good title to two vehicles which Hudson sold to Gaines.

Seller Hudson purchased the two dump trucks in 1975. He obtained license tags and state safety inspection stickers and paid the county ad valorem taxes. In 1984, Hudson contracted to sell the vehicles to Gaines for a purchase price of $7,500 apiece. He was unable to produce certificates of title and stated that they had been missing following a burglary of his office.

Under the provisions of OCGA § 40-3-28, Hudson obtained motor vehicle certificates of title under surety bonds, which were then issued to Gaines. They contain the following disclaimer: “This title was issued on the basis of a surety bond and may be subject to undisclosed liens, security interests salvage, odometer reading discrepancy or other conditions.”

Hudson delivered the vehicles to Gaines in June 1984, reducing the purchase price by $1,000 because of needed repairs. The following May, law enforcement officials confiscated the vehicles from Gaines on the ground they had been stolen.

Gaines claimed damages in the amount of $31,525.01. This amount was based on the purchase price of the vehicles, expenditures for repairs, and interest paid on purchase-money loans. He submitted evidence of damages for loss of hire also.

Defendant Hudson filed third-party complaints against Meadows Motors, Inc., and Safeco Insurance Company of America, alleging that he had obtained title to the vehicles through Meadows and that title had been bonded by Meadows and Safeco. He dismissed the third-party complaint against Meadows without prejudice. At the conclusion of trial, the court directed a verdict in favor of Safeco.

The jury was unable to reach a verdict and the case was submitted to the trial judge. He concluded that in selling these vehicles, seller Hudson gave buyer Gaines an implied warranty of title under OCGA § 11-2-312 as well as “an express representation as to warranty of title.” He further concluded that Gaines gave Hudson notice of the breach within a reasonable time, as required by OCGA § 11-2-607. Judgment was entered for Gaines in the amount of $14,036.

1. Appellant contends that since certificates of title with the noted disclaimer were issued to appellee pursuant to OCGA § 40-3-28, the buyer obtained no implied or express warranties of title, as a matter of law.

OCGA § 40-3-28 states that where the state revenue commissioner is not satisfied as to the ownership of a vehicle, the commissioner may register, the vehicle but shall “as a condition of issuing a certificate of title, require the applicant to file with the commissioner a bond . . . executed by the applicant and by a bonding, surety, or insurance company. , . . The bond shall be in an amount equal to the value of the vehicle as determined by the .commissioner and payable to the commissioner for the benefit of any prior owner . . . and any subsequent purchaser of the .vehicle . . . against any expense, loss, or damage, by reason of the issuance of the certificate of title of the vehicle or on account of any defect in or undisclosed security interest upon the right, title, and interest of the applicant in and to the vehicle. The commissioner shall have a right of action to recover on the bond for any breach of its conditions, but the aggregate liability of the surety to all persons shall not exceed the amount of the bond. The bond shall expire at the end of four years unless the commissioner has been notified of a breach of a condition of the bond.”

OCGA § 40-3-28 is based on § 11 of the Uniform Motor Vehicle Certificate of Title and Anti-Theft Act. The purpose of OCGA § 40-3-28 appears to be to shield the State from any potential liability for failure to discover and disclose title defects in issuing automobile certificates of title. See generally Bill Moore Motor Homes v. Arizona, 629 P2d 1025 (Ariz. 1981). However, it has been held that although the Uniform Act governs the time of transfer of car ownership for purposes of determining insurance coverage and ownership liability in a personal injury action, “the Uniform Commercial Code governs ‘as between the parties’ with respect to their rights and liabilities under the law of sales.” Knutson v. Mueller, 228 NW2d 342, 346 (2) (Wis. 1975). “Article two of the Uniform Commercial Code applies to ‘transactions in goods,’ and thus is generally applicable to problems arising from transactions involving transfer of automobile ownership.” Id. at 346.

Implied warranties of title under the UCC are governed by OCGA § 11-2-312. “[T]here is in a contract for sale a warranty by the seller that . . . [t]he title conveyed shall be good, and its transfer rightful.” OCGA § 11-2-312 (1) (a). “A warranty . . . will be excluded or modified only by specific language or by circumstances which give the buyer reason to know that the person selling does not claim title in himself or that he is purporting to sell only such right or title as he or a third person may have.” OCGA § 11-2-312 (2).

Express warranties are governed by OCGA § 11-2-313, which provides that “[e]xpress warranties by the seller are created as follows: Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.” OCGA § 11-2-313 (1) (a).

We hold that the issuance of certificates of title pursuant to OCGA § 40-3-28 did not, as a matter of law, negate the existence of express or implied warranties which the seller gave the purchaser in the course of their dealings.

2. Hudson contends that buyer Gaines’ failure to give notice to Hudson of his breach-of-warranty claims prior to filing the original suit, approximately eight months after the vehicles had been seized, mandate a dismissal of both the original and renewal actions as a matter of law.

A condition precedent to filing suit under Article 2 of the UCC is that “[t]he buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy.” OCGA § 11-2-607 (3) (a). Notice of breach serves two distinct purposes, as noted in Oden & Sims Used Cars v. Thurman, 165 Ga. App. 500, 501 (1) (301 SE2d 673) (1983): first, it opens the way for settlement negotiations between the parties; second, it minimizes the possibility of prejudice by giving the seller ample opportunity to cure the defect, investigate the claim, or reduce damages at an early stage. See also OCGA § 11-2-714 (1).

Appellant has not shown that the court erred in ruling in effect that he had been given adequate notice of breach of warranty as contemplated by the statute. Service of the original suit, made eight months after confiscation, removed the vehicles from control of either party, was reasonable notice in the circumstances of this case.

Decided February 27, 1991

Rehearing denied March 14, 1991.

Hull, Towill, Norman & Barrett, David E. Hudson, for appellant.

3. Finally, Hudson contends that plaintiff Gaines failed to prove damages in accordance with OCGA § 11-2-714 (2). It provides: “The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.”

Hudson’s position is that although buyer Gaines submitted proof of the value of goods “as warranted,” which Hudson concedes is the same as what the purchase price was, Gaines submitted no proof of the value of the goods “accepted.” Hudson argues that the value when accepted was not zero because the buyer was to have use of them for ten or 11 months. That is, they were not of “no value,” but their value was as trucks which Gaines would have for this period of time.

Buyer Gaines counters that OCGA § 11-2-714 (2) allows the recovery of damages in an amount different from the disparity in special circumstances. He argues that the value to him was in fact zero because he was precluded by law from acquiring ownership. OCGA § 11-2-714 (3) also allows the recovery of incidental and consequential damages under OCGA § 11-2-715 “[i]n a proper case.”

Plaintiff proved not only the price paid and the lending bank’s appraisal of value but also that what he accepted were stolen trucks for which he owed an interest-bearing note to the bank. We cannot say that the undifferentiated damages awarded “as the foreseeable and logical consequence of the breach,” using the court’s words, were not authorized by those two laws. See Murdock v. Godwin, 154 Ga. App. 824, 825 (4), (6) (269 SE2d 905) (1980).

Judgment affirmed.

Pope and Andrews, JJ., concur.

Hagler, Hyles & Badcock, Richard C. Hagler, for appellee.

       4 Anderson, Uniform Commercial Code, § 2-724:26, pp. 490-491 (1983), states that breach of warranty of title situations should not be “forced” into the scope of ACC § 2-714 (2). See, instead, OCGA § 11-2-711 (1); Solomon Refrigeration v. Osburn, 148 Ga. App. 772, 776 (3) (252 SE2d 686) (1979); Jacobs v. Metro Chrysler Plymouth, 125 Ga. App. 462, 467-469 (2) (188 SE2d 250) (1972); and Brown v. Moore, 103 Ga. App. Ill (2) (118 SE2d 591) (1961).