author: Deen, Presiding Judge.

text:
    A89A0127.
    VOLUME TIRE COMPANY v. O’CONNER.
    (378 SE2d 415)
   Deen, Presiding Judge.

The appellant, Volume Tire Company, brought this suit on an open account against All-Star Tire Company (All-Star), and against Don O’Conner as personal guarantor. This appeal follows the trial court’s grant of summary judgment for O’Conner.

Decided February 9, 1989.

Arthur L. Phillips, for appellant.

Richard A. Epps, for appellee.

In January 1987 All-Star purchased on credit some tires from the appellant. The credit application indicates All-Star as the purchaser and identifies the corporate officers, including O’Conner as president. O’Conner signed the application, which contains a promise to pay the monthly account in exchange for the appellant’s extending credit, but he did not indicate his corporate capacity. In an affidavit submitted in support of his motion for summary judgment, O’Conner stated that he signed the credit application and dealt with the appellant only in his corporate capacity, and that he had never been requested by appellant to guarantee payment personally. Countering this evidence was the affidavit of the appellant’s vice-president and secretary/treasurer, who averred that in negotiating the sale the appellant had insisted that O’Conner personally guarantee payment or it would not extend credit to All-Star for the purchase. Held-.

1. “Where there is a written contract, not under seal and not containing a so-called integration or ‘entire agreement’ clause, parol is admissible to show the capacity in which one signed such agreement. [Cits.]” Evans v. Smithdeal, 143 Ga. App. 287, 289-90 (238 SE2d 278) (1977). The affidavit of the appellant’s vice-president and secretary/ treasurer sufficed to create an issue of fact over the capacity in which O’Conner executed the credit application and agreement to pay the account. Summary judgment for O’Conner was inappropriate.

2. O’Conner’s motion for imposition of a penalty for frivolous appeal, pursuant to Rule 26 (b) of the Rules of the Court of Appeals, is denied.

Judgment reversed.

Birdsong and Benham, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    A89A0352.
    HENDERSON v. THE STATE.
    (378 SE2d 530)
   Deen, Presiding Judge.

The appellant, Aaron Henderson, was convicted of burglary. On appeal, his sole contention is that the trial court erred in admitting evidence of a similar offense.

The evidence showed that during the night of May 6, 1988, Henderson broke into the second floor window of the Thomas County Courthouse. Once inside he forced open the door to the drug squad office and ransacked that office. Some money and controlled substances were taken. A crowbar was left at the scene, as well as a baseball-type cap bearing the logo of the Southern Sand Company, which had once employed Henderson.

Decided February 9, 1989.

Whitehurst, Cohen & Blackburn, Arthur J. Shelfer, Jr., for appellant.

James E. Hardy, Assistant District Attorney, for appellee.

The evidence of a similar offense admitted by the trial court concerned a 1985 burglary of the Southern Sand Company, for which Henderson pled guilty. In that burglary, Henderson entered the premises at night by breaking out a window with a brick, and took some checks which he forged and cashed.

“[0]nce the identity of the defendant as the perpetrator of the similar transaction has been shown, and the extrinsic offense and the offense charged are sufficiently similar so that proof of the former tends to prove the latter, such evidence is admissible to show identity, motive, plan, scheme, bent of mind, and course of conduct. [Cit.]” Flournoy v. State, 186 Ga. App. 774 (368 SE2d 538) (1988). Under the above criteria, the evidence of the 1985 burglary conviction was admissible in this case.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A0389.
    SEABOLT v. THE STATE.
    (378 SE2d 416)
   Deen, Presiding Judge.

The appellant, Jerome Seabolt, was convicted of obstruction of a law enforcement officer, possession of a firearm by a convicted felon, and possessing marijuana in violation of the Georgia Controlled Substances Act. On appeal, his sole contention is that his appointed trial counsel provided ineffective assistance. Seabolt’s trial counsel filed a motion for new trial asserting only the general grounds before he was replaced by Seabolt’s appellate counsel. Appellate counsel filed no amended motion for new trial, but asserted ineffective assistance of trial counsel for the first time on appeal. Under these circumstances, this case must be remanded to the trial court for a hearing and appropriate findings on this claim. Hightower v. State, 189 Ga. App. 553 (376 SE2d 717) (1988).

Case remanded with direction.

Birdsong and Benham, JJ., concur.

Decided February 9, 1989.

Michael S. Weldon, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.


text:
    A89A0398.
    ISBELL v. THE STATE.
    (378 SE2d 529)
   Deen, Presiding Judge.

Alvin Wayne Isbell was convicted of terroristic threats and acts, obstruction of a police officer, and public drunkenness.

1. Isbell first contends that the trial court erred in granting the State’s motion to permit evidence of similar transactions to be introduced at trial because the notice that the State gave him did not conform with Superior Court Rule 31.3.

The transcript reveals that appellant made no objection to this issue at the hearing on the motion. Objections to the notice requirements of the Uniform Superior Court Rules must be raised in the trial court and not for the first time on appeal. Cohn v. State, 186 Ga. App. 816 (368 SE2d 572) (1988).

2. The trial court did not err in granting the State’s motion to allow similar transactions to be introduced into evidence.

The evidence showed that the sheriff’s office received a report that a man was lying in a county road. When the sheriff and a deputy investigated, they found Isbell and a dog lying in the road. Appellant smelled of alcohol and appeared to be intoxicated. When Isbell was arrested, he set the dog on the sheriff and fled to a nearby house. The sheriff and deputy followed him, caught and handcuffed him. While they were walking to the patrol car, Isbell fought with them, and kicked the sixty-nine-year-old sheriff in the legs and face, fracturing his nose and inflicting an injury to his face which required stitches. The sheriff obtained a rope from the house, tied Isbell’s feet and put him in the back seat of the patrol car with the assistance of the deputy and others. All during the incident, Isbell cursed the sheriff and deputy and threatened to kill them.

As the State anticipated that appellant would attempt to portray the fight as being unique and caused by the sheriff’s actions, it sought to introduce evidence of similar instances of crimes against police officers (including the sheriff who arrested him in this case) while he was intoxicated.

We find that the conditions for admissibility were established: (1) the defendant was the perpetrator of the independent crime; and (2) there was a sufficient similarity or connection between the independent crime and the offense charged so that the former tended to prove the latter. French v. State, 237 Ga. 620 (229 SE2d 410) (1976). The evidence was offered to establish Isbell’s motive, intent, bent of mind, and to show this is a typical way in which appellant deals with the police and, in particular, with Sheriff English as one of the prior offenses involved a similar altercation with him. See Walraven v. State, 250 Ga. 401 (297 SE2d 278) (1982); Sherrod v. State, 157 Ga. App. 351 (277 SE2d 335) (1981)..

Decided February 9, 1989.

Jimmy D. Plunkett, for appellant.

Ronnie A. Wheeler, Assistant District Attorney, for appellee.

3. Appellant’s argument that he was subjected to double jeopardy because he was tried for both terroristic threats and acts and obstruction of an officer must also fail as neither is included in the other as a matter of law or fact. The two offenses involved proof of distinct essential elements. Compare OCGA §§ 16-11-37 and 16-10-24. See also Martin v. State, 185 Ga. App. 145 (363 SE2d 765) (1987). Threatening to murder a law enforcement officer is not an essential element of obstruction of that officer and vice versa. The threats were of murder, and the obstruction consisted of acts of violence which included kicking the sheriff in the leg and face.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


author: Beasley, Judge.

text:
    77175.
    SMITH v. THE STATE.
    (378 SE2d 493)
   Beasley, Judge.

Defendant directly appeals the denial of his plea of double jeopardy. See Patterson v. State, 248 Ga. 875 (287 SE2d 7) (1982); McCannon v. State, 252 Ga. 515 (315 SE2d 413) (1984).

Defendant was arrested for driving with a suspended license and three counts of violation of the controlled substances act. He was charged by an accusation for the traffic offense and separately indicted for the drug violations. When the traffic offense was scheduled for trial it was the responsibility of Hearn, an assistant district attorney who had begun his job only the month before. After Hearn plea-bargained, defendant pled guilty to driving without a license and was sentenced. Hearn was then informed that the drug charges were on the trial calendar the following week.

Defendant filed a plea in bar based upon OCGA § 16-1-7 (b), which the trial court denied after a hearing. Defendant argues, as he did below, that the times and dates on the arrest warrants show that all charges arose out of the same transaction; that both the accusation and the indictment were handled by the district attorney’s office; that defendant filed defensive motions served under OCGA § 17-1-1, including a motion to quash the indictment which raised the issue and gave notice that the charges in the accusation and the indictment both arose out of the same conduct or transaction.

The State urges that the accusation and the indictment were maintained in separate fijes; that Hearn denies actual knowledge and there is nothing to show that he knew of the indictment until after the plea to the accusation was entered.

OCGA § 16-1-7 (b) provides: “If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution.” Baker v. State, 257 Ga. 567 (361 SE2d 808) (1987), Powe v. State, 257 Ga. 563 (361 SE2d 811) (1987), and Farmer v. State, 184 Ga. App. 851, 852 (363 SE2d 62) (1987), hold that the requirements of the code section, that all offenses arising from the same conduct be tried together, apply “only to such crimes which are actually known to the prosecuting officer actually handling the proceedings.”

A prosecution is commenced “with the return of the indictment or the filing of the accusation.” OCGA § 16-1-3 (14). Here the accusation and the indictment bear the name of the district attorney. The warrants as to each show that the other charges were known. The filing of the accusation first and the return of the indictment some months later commenced the prosecution as to each charge. When the prosecution as to the defendant’s conduct on the occasion of the offenses began, he was the “proper prosecuting officer.” These documents constitute conclusive circumstantial evidence that the district attorney had actual knowledge of all the offenses arising from the same conduct and the pendency of both prosecutions, Patellis v. Tanner, 197 Ga. 471, 477 (4) (29 SE2d 419) (1944), Roebuck v. Payne, 109 Ga. App. 525, 527 (3) (136 SE2d 399) (1964), and National Life &c. Ins. Co. v. Fischel, 62 Ga. App. 645, 646 (1) (9 SE2d 192) (1940), but chose to proceed separately as to each. When the first prosecution reached the trial stage and jeopardy set in, the bar dropped. Cochran v. State, 176 Ga. App. 58, 60 (335 SE2d 165) (1985). The two cases were not a problem; the two separate dispositional proceedings were. OCGA § 16-1-7 (b) is a procedural double jeopardy provision which is “designed to protect an accused against the harassment of multiple prosecutions arising from the same conduct.” Waites v. State, 238 Ga. 683, 684 (235 SE2d 4) (1977). Thus, the prosecuting officer must avoid jeopardy from attaching as to the less than all charges arising out of defendant’s “same conduct” where, at the time he commences the prosecution by filing an accusation or achieving return of an indictment, he actually knows of the other charges.

Decided January 26, 1989

Rehearing denied February 10, 1989

Virgil L. Brown, for appellant.

W. Fletcher Sams, District Attorney, Sharon Law, Assistant District Attorney, for appellee.

The fact that Hearn, an assistant district attorney, who got assigned after the cases were commenced, did not know of the other offenses when he disposed of the accusation, begs the question. He was not the prosecuting officer at the prosecution’s commencement.

Because the offenses were actually known to the officer actually handling the proceedings at the outset, it was error to overrule the double jeopardy motion.

Judgment reversed.

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


author: Pope, Judge.

text:
    77362.
    BANK SOUTH, N. A. v. TATE.
    (378 SE2d 486)
   Pope, Judge.

The issue presented in this interlocutory appeal is whether a person served with process intended for another and who answers denying he is the intended defendant and who also counterclaims for malicious use of process can maintain the counterclaim. Appellant Bank South argues that such a person is a non-party to the action and cannot maintain a counterclaim. The trial court disagreed and denied appellant’s motion to dismiss.

Appellant filed an action in Clayton County for non-payment of a Mastercard account against William T. Tate, Jr. (the intended defendant). Service was returned by the sheriff’s department with the notation that the intended defendant could not be found in the jurisdiction. Appellant then requested that service by second original be made at a DeKalb County address. On September 21, 1987, the sheriff’s office served William Tate, the appellee here, at the address provided by appellant. This address was and had been appellee’s home, and the intended defendant, William T. Tate, Jr., had never lived there. The next day, appellee contacted appellant’s attorney and two days later appellant’s attorney wrote a letter to appellee advising him that he was not the man intended to be served and that he did not need to file an answer to the complaint. However, appellant took no other action to dismiss appellee from the suit. On October 8, 1987, appellee filed his answer and counterclaim for malicious abuse of process. Appellant then filed its “Motion to Dismiss and Strike the Non-Party’s Answer and Counterclaim.” After a hearing, the trial court denied the motion. Held:

The key factor in resolving the issue on appeal is whether appellee can be considered a party to this action. While the court makes no judgment on the merits of appellee’s claim against appellant, there can be no doubt that appellee has the right to bring such a claim. The question is whether that claim can be maintained in the present case.

“Georgia law broadly defines a ‘party’ to include one who is directly interested in the subject matter of the litigation, has the right to adduce testimony, to cross-examine witnesses, to control the proceedings, and to appeal from the judgment. [Cits.]” Wilkins v. Dept. of Human Resources, 255 Ga. 230, 235 (337 SE2d 20) (1985). Appellant argues that this precludes appellee from this action because he is not the person appellant intended to sue. However, this misses the point that appellee became involuntarily interested in this litigation the moment he was served. Even though appellant told appellee he need not answer because he was not the party intended, appellant took no other action to have the court remove the command to appear and answer inherent in the summons served by the sheriff. This left appellee in an ambiguous position.

One served with legal process ignores the summons at his own risk. Miller v. U. S. Shelter Corp., 179 Ga. App. 469 (3) (347 SE2d 251) (1986); W. T. Rawleigh Co. v. Watts, 68 Ga. App. 786, 789 (24 SE2d 213) (1943). Had appellee not answered, he risked a change of heart by appellant and the possibility of a default judgment being entered against him. Thus, appellee took the only prudent action available and answered. We hold that appellee became a party to the suit upon service, although an unintended party by the plaintiff-appellant. Appellant could have moved the court to quash the service immediately upon learning of the error, or it could have dismissed the action pursuant to OCGA § 9-11-41. Appellant also could have moved the court to drop the unintended party pursuant to OCGA § 9-11-15. However, it did none of these, and appellee is a party and thus has the right to assert his counterclaim. The trial court can easily avoid any confusion between the counterclaim and the main action by ordering a separate trial of the counterclaim pursuant to OCGA § 9-11-42 (b).

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.

Decided January 23, 1989

Rehearing denied February 10, 1989

Boyce, Thompson & O’Brien, Peter F. Boyce, Albert F. Nasuti, for appellant.

Weiner, Dwyer & Yancey, J. Matthew Dwyer, Jr., Thomas C. Dempsey, for appellee.


author: McMurray, Presiding Judge.

text:
    77394.
    WELSH v. DEPARTMENT OF CORRECTIONS et al.
    (378 SE2d 238)
    Decided January 30, 1989
    Rehearing denied February 10, 1989.

      Gary A. Bacon, for appellant.

      Michael J. Bowers, Attorney General, Michael E. Hobbs, Assistant Attorney General, for appellees.
   McMurray, Presiding Judge.

After full and careful consideration of the record, and in light of the recent decision reached by the Supreme Court in City of East Point v. Smith, 258 Ga. 111 (365 SE2d 432) (reversing Smith v. City of East Point, 183 Ga. App. 659 (359 SE2d 692)), we conclude that the application for a discretionary appeal was improvidently granted. Accordingly, the appeal is dismissed.

Appeal dismissed.

Pope and Benham, JJ., concur.


text:
    77789.
    WILSON v. WHEELER’S, INC.
    (378 SE2d 498)
   McMurray, Presiding Judge.

Plaintiff Wilson brought an action against Wheeler’s, Inc. (“Wheeler’s”) and alleged that defendant maliciously prosecuted her for issuing a bad check. Wheeler’s denied the material allegations of the complaint and moved for summary judgment. The undisputed facts are as follows:

On July 24, 1985, plaintiff Wilson and her husband opened a joint checking account at the First National Bank of Atlanta (bank). The bank issued to Mr. and Mrs. Wilson several “COUNTER CHECK[S]” with the Wilsons’ account number preprinted at the bottom of each check. A series of boxes appear above the preprinted account number and above the boxes there are directions to “FILL IN ACCOUNT NUMBER.”

On August 3, 1985, Mrs. Wilson went to “Wheeler’s Building Materials Store” and purchased “two pieces of trellis and some timbers to use in landscaping her back yard.” Mrs. Wilson gave the “cashier” a “COUNTER CHECK” for $22.52 and informed the “cashier” that the instrument was “a counter check on her new account.” (An erroneous account number is written in the boxes on the “COUNTER CHECK” above the preprinted account number.) The “cashier” examined Mrs. Wilson’s driver’s license and printed on the back of the “COUNTER CHECK” plaintiff’s birthday, her Social Security number and the following address: “3335 Hunting Lodge Rd. Marietta.” (The Wilsons then resided at 3335 Hunter’s Lodge Road in Marietta, Georgia.)

On August 6, 1985, the bank returned Mrs. Wilson’s “COUNTER CHECK” to Wheeler’s with the notations, “NOT PROCESSED” and “UNABLE TO LOCATE.” On August 20, 1985, Wheeler’s posted, via “certified mail,” a “dishonored check notice” to Mrs. Wilson. The notice was “returned to [Wheeler’s] marked both ‘unclaimed’ and ‘addressess (sic) unknown.’ ”

On September 18, 1985, Joe Lowrey presented his affidavit in the Magistrate Court of Cobb County, Georgia and deposed “that Betty L. Wilson (hereinafter called the accused) did ... on the 3rd day of August, in the year 1985, in Cobb County, Georgia, commit the offense of Bad check (Misdemeanor) violating O.C.G.A. Section 16-9-20, for that the said accused did unlawfully make and draw upon First Atlanta, a certain check, dated Aug. 3, 1985, payable to the order of Wheelers [sic], for the sum of $22.52, signed Betty L. Wilson, and uttered and delivered the same to Wheeler’s, 1300 Canton Hwy. Marietta, Ga. in exchange for a present consideration as a check of its full face value, then and there knowing that accused did not have an account with the bank at the time the check was delivered.” Mr. Lowrey further deposed that he executed his affidavit so “that a warrant may issue for the arrest of the accused.” In response, a magistrate issued a “CRIMINAL WARRANT” for the arrest of plaintiff, listing her address as “3335 Hunting Lodge Rd. Marietta, Georgia.”

On October 10, 1988, a Cobb County sheriff’s deputy went to the Wilsons’ home at 3335 Hunter’s Lodge Road in Marietta, Georgia and, at about 1:00 that afternoon, plaintiff’s son called his mother at work and “put [the deputy] on the line. . . .” (Plaintiff deposed in her affidavit that she did not receive Wheeler’s notice of certified mail and that this call was the first time she became “aware of any problem with the check to Wheeler’s . . . .”) Mrs. Wilson promised the deputy sheriff that she would “turn herself in to the Cobb County Sheriff’s Office and jail that afternoon between 4:30 and 5:00.”

Mrs. Wilson immediately contacted her husband .and he contacted “a person in the warrant office” at the Cobb County Sheriff’s Department. “As a result of that conversation [, Mr. Wilson] called Wheeler’s on Canton Road, asking to speak with the Manager.” He was informed by a Wheeler’s employee “that the Manager could not speak with him then because he was in a meeting.” Mr. Wilson “then proceeded to the Wheeler [sic] business place and upon arriving at about 3:00 p.m. asked to speak with the Manager . . . .” He was again informed “that the Manager was in a meeting.” Mr. Wilson “gave his business card with his home phone number to [the employee and requested] that the Manager please call him as soon as possible, that he needed to speak with him . . . regarding a warrant that Wheeler’s had issued for his wife.” Mr. Wilson went home, but he received no call from Wheeler’s.

At about 4:30 that afternoon, Mr. Wilson contacted his wife at her place of employment and made arrangements to meet her at the Cobb County Sheriff’s Office. Mrs. Wilson arrived at the sheriff’s office at about 5:00 p.m. and she was there arrested and later released after her husband posted a $300 bond. Mrs. Wilson was subsequently charged, via accusation, for issuing a bad check to Wheeler’s.

On February 21, 1986, an assistant solicitor of the State Court of Cobb County, Georgia recommended that the charge against Mrs. Wilson not be further prosecuted. On a form styled “NOLLE PROSEQUI,” the assistant solicitor stated that Mrs. Wilson “had opened a new bank account. The check in question was a counter-check with [Mrs. Wilson’s] account number on it. The check was returned for the reason—unable to locate. [Mrs. Wilson] received no notice.” On February 24, 1986, the State Court of Cobb County consented to the State’s recommendation not to further prosecute Mrs. Wilson. From this evidence, the trial court granted Wheeler’s motion for summary judgment. This appeal followed. Held:

1. “A criminal prosecution which is carried on maliciously and without any probable cause and which causes damage to the person prosecuted shall give him a cause of action.” OCGA § 51-7-40. “In malicious prosecution actions ‘(w)ant of probable cause is a question for the jury, under the direction of the court. The question of probable cause is a mixed question of law and fact. Whether the circumstances alleged to show probable cause existed is a matter of fact, to be determined by the jury, but whether they amount to probable cause is a question of law for the court.’ Hearn v. Batchelor, 47 Ga. App. 213, 214 (170 SE 203) (1933); see Day Realty Associates v. McMillan, 247 Ga. 561 (277 SE2d 663) (1981). The material facts in [the case sub judice are] essentially undisputed. Therefore, whether or not probable cause existed was for determination by the court. Ayala v. Sherrer, 135 Ga. App. 431, 434 (218 SE2d 84) (1975).” Melton v. La Calamito, 158 Ga. App. 820, 822 (2 b), 823 (282 SE2d 393).

From this perspective, we observe that “ “[i]n actions for malicious prosecution, the question is, not whether the plaintiff [Mrs. Wilson] was guilty, but whether the defendant [Wheeler’s] had reasonable cause to so believe—whether the circumstances were such as to create in the mind of the defendant a reasonable belief that there was probable cause for the prosecution. (Cit.) Probable cause is defined to be the existence of such facts and circumstances as would excite the belief in a reasonable mind, that the person charged was guilty of the crime for which he was prosecuted.” ’ Tanner-Brice Co. v. Barrs, 55 Ga. App. 453 (2) (190 SE 676) (1937). ‘While (probable cause) need not approach absolute certainty as to the facts, and it is not inconsistent with a considerable element of doubt, it must be more than mere conjecture or unfounded suspicion. Beyond this, the belief must be supported by appearances known to the defendant at the time [emphasis supplied]. . . . The appearances must be such as to lead a reasonable man to set the criminal proceeding in motion. The defendant is not necessarily required to verify his information, where it appears to be reliable; but where a reasonable man would investigate further before beginning the prosecution, he may be liable for failure to do so [emphasis supplied]. All such factors as the reliability of the source, the availability of further information and the difficulty of obtaining it, the reputation of the accused, and his opportunity to offer an explanation, and the apparent necessity of prompt action, are to be considered in determining whether it was reasonable to act without verification.’ Prosser, [Law of Torts § 119] at 842.” Melton v. LaCalamito, 158 Ga. App. 820, 822 (2 b), 823, 824, supra.

Before initiating the prosecution against Mrs. Wilson, Wheeler’s had received Mrs. Wilson’s “COUNTER CHECK” from the bank with the notations, “NOT PROCESSED” and “UNABLE TO LOCATE.” Also, Wheeler’s “dishonored check notice” had been returned and marked, “unclaimed” and “addressess (sic) unknown.” We cannot say these circumstances alone demand a determination that probable cause existed as a matter of law for Mrs. Wilson’s arrest.

“ ‘While a prosecutor need not be fully satisfied of the truth of the charge that he makes in his affidavit, and is not required to have a sufficient statement of fact to guarantee a conviction, nevertheless, where slight diligence would have brought to his attention facts which would have shown conclusively that there could be no conviction, whether or not he is guilty of malicious prosecution is a question of fact to be determined by the jury.’ Auld v. Colonial Stores, 76 Ga. App. 329 (3) (c) (45 SE2d 827) (1947).” Voliton v. Piggly Wiggly, 161 Ga. App. 813, 814 (288 SE2d 924). The circumstances of the case sub judice authorize a finding that “slight diligence” by Wheeler’s would have revealed Mrs. Wilson’s intentions in drawing the “COUNTER CHECK.” In this regard, the evidence showed that the Wilsons were easily accessible in that they had resided at the same Cobb County address for over five years prior to the incident which forms the basis of this action. In fact, the Wilsons’ home was only “five to six miles” from Wheeler’s place of business. Further, the evidence shows that the Wilsons are thoroughly law-abiding citizens who have successfully raised three children, “the eldest of which has graduated from college and is in the United States Navy, the middle son is a student at Norfork State College and the youngest is a tenth (10th) grader in the Cobb County School System.” The record also shows that Mr. Wilson “is the Regional Sales Manager for the Gillette Safety Razor Company . . .” and that Mrs. Wilson is employed as “a Histologist at Kennestone Medical Center.” Most persuasively, however, is evidence showing that the Wilsons contemporaneously resolved a similar misunderstanding with a local department store after the Wilsons’ bank returned a “COUNTER CHECK” that was drawn on the same account to the department store with the notation, “UNABLE TO LOCATE.” (A notation on the face of the “COUNTER CHECK” that was returned to the department store indicates that a store representative “phoned” Mrs. Wilson after the “COUNTER CHECK” was returned unpaid.) Moreover, evidence showing that Wheeler’s failed to respond to Mr. Wilson’s inquiries prior to his wife’s arrest raises genuine issues of material fact as to whether Wheeler’s acted maliciously in failing to investigate before resorting to criminal prosecution. Sanfrantello v. Sears, Roebuck & Co., 118 Ga. App. 205 (1) (163 SE2d 256). Consequently, the trial court erroneously concluded that the evidence demanded a determination that probable cause existed for Mrs. Wilson’s arrest.

2. Next, we turn to Wheeler’s contention that it is immune from prosecution under OCGA § 16-9-20 (h). This Code subsection provides, in pertinent part, as follows: “Any party holding a worthless check or instrument and giving notice in substantially similar form to that provided in subparagraph (a) (2) (B) of this Code section shall be immune from civil liability for the giving of such notice and for proceeding as required under the forms of such notice; provided, however, that, if any person shall be arrested or prosecuted for violation of this Code section and payment of any check, draft, or order for the payment of money shall have been refused because the maker or drawer had no account with the bank or other depository on which such instrument was drawn, the one causing the arrest or prosecution shall be deemed to have acted with reasonable or probable cause even though he or it has not mailed the written notice or waited for the ten-day period to elapse.”

The language of this Code subsection is inapplicable for two reasons. First, the evidence is conflicting as to whether Mrs. Wilson received notice of Wheeler’s “dishonored check notice” and there is no evidence that Mrs. Wilson received “notice in substantially similar form to that provided in subparagraph (a) (2) (B) of [OCGA § 16-9-20].” OCGA § 16-9-20 (h). Secondly, the notation “UNABLE TO LOCATE” is not conclusive evidence that Mrs. Wilson “had no account with the bank ... on which [the returned] instrument was drawn . . . .” OCGA § 16-9-20 (h). (In fact, the undisputed evidence shows that the Wilsons had a solvent checking account at the bank with the same account number as is preprinted on the “COUNTER CHECK” that was returned to Wheeler’s. See Voliton v. Piggly Wiggly, 161 Ga. App. 813, 814, supra.) Consequently, since Wheeler’s is not immune under OCGA § 16-9-20 (h) and since a genuine issue of material fact remains as to whether Wheeler’s acted reasonably in prosecuting Mrs. Wilson, the trial court erred in granting Wheeler’s motion for summary judgment.

Decided January 30, 1989

Rehearing denied February 10, 1989

Duard R. McDonald, for appellant.

Barry V. Smith, for appellee.

Judgment reversed.

Pope and Benham, JJ., concur.


author: Banke, Presiding Judge.

text:
    A89A0183.
    MATHIS et al. v. BERRIEN COUNTY SCHOOL DISTRICT et al.
    (378 SE2d 505)
   Banke, Presiding Judge.

Acting on behalf of their minor son, Chris, the appellants filed suit against their school district, the school superintendent, their son’s teacher, and his school principal seeking to recover for physical and psychological injuries allegedly sustained by the child as the result of corporal punishment administered by the teacher. The trial court granted summary judgment to the appellee-defendants, concluding as a matter of law that the punishment administered to the child was not so excessive or severe as to be unlawful. This appeal followed.

Chris was a 13-year-old student in the fifth grade at Ray City Elementary School in Berrien County. His teacher, Peggy Lloyd, testified that she had been having disciplinary problems with him on the day in question and had sent him to the “time-out” area of the classroom on three occasions. Under Lloyd’s punishment policy, which was posted in her classroom, a student who received three “time-outs” during the school day was also to receive corporal punishment. Lloyd escorted Chris across the hallway to carry out the punishment, which was to consist of three “licks” with a wooden paddle approximately 24 inches long, six inches wide, and one inch thick. In accordance with school and state policy, another faculty member was present to witness the paddling. After receiving the first two licks, Chris initially refused to take the third, whereupon he was informed by Lloyd that if he did not cooperate he would be sent to the principal’s office. He then agreed to cooperate. A fourth lick was ultimately added to punish him for his belligerence. In accordance with school policy, Chris was then sent to the principal’s office with a corporal punishment slip completed by Lloyd and signed by the witness. Thereafter, he returned to his classroom.

After Chris got home from school, his mother took him to a doctor, who testified that he observed superficial bruises on the child’s buttocks. The child was then taken to the sheriff, who photographed the bruises. When Chris was re-examined by his physician 10 days later, the bruises had disappeared. Approximately two years after the incident, Chris was examined by a psychologist, who diagnosed him as suffering from “post-traumatic stress disorder.” Held:

In Ingraham v. Wright, 430 U. S. 651 (97 SC 1401, 51 LE2d 711) (1977), the United States Supreme Court held that the prohibition against cruel and unusual punishment appearing in the Eighth Amendment to the United States Constitution does not apply to disciplinary paddling of public school students. Corporal punishment of students in Georgia is expressly permitted by statute, provided it is not excessive in degree or severity and is administered in good faith by a teacher or school principal for disciplinary reasons. See OCGA § 20-2-730 et seq.

In support of their contention that the evidence in this case authorized the trial court’s grant of summary judgment in their favor, the appellee-defendants rely on this court’s decision in Maddox v. Boutwell, 176 Ga. App. 492 (336 SE2d 599) (1985). There, the plaintiff submitted evidence showing that his child had sustained “severe bruises” on his buttocks and thigh upon being hit four times with a wooden paddle 24 inches long, five inches wide, and one-fourth to one-half inch thick. We held that the defendants were nevertheless entitled to summary judgment based on affidavits from various witnesses establishing that the child had exhibited a “total absence of any objective manifestations of injury” during or immediately following the incident. Id. at 493.

In the case before us, as in Maddox, the appellee-defendants submitted affidavits from various individuals who had observed Chris during and after the administration of the punishment. Lloyd averred that upon Chris’ return to the classroom after the punishment and for the remainder of the day, he had exhibited no signs of discomfort. The principal averred that when he had talked with Chris immediately after the incident, the child had not complained that the punishment was excessive nor indicated that he was in pain. The sheriff similarly averred that Chris had “showed no visible sign of being in pain.” Finally, the assistant school superintendent stated that Chris was playing and laughing and demonstrating no visible signs of distress or pain when he saw him the day following the incident.

Decided February 1, 1989

Rehearing denied February 10, 1989

Russell & Herrera, D. Lynn Russell, Ann J. Herrera, for appellants.

Harben & Hartley, Phillip L. Hartley, Perry, Moore & Studstill, William S. Perry, for appellees.

Here, as in Maddox, we hold that the evidence submitted by the appellee-defendants was sufficient to negate the existence of any material issue of fact. The appellants’ evidence established merely that the paddling had been painful and had resulted in bruises to the child’s buttocks. We held in Maddox that such evidence was not sufficient to create a material issue of fact, inasmuch as “it is to be anticipated that corporal punishment will produce pain and the potential for bruising.” Id. at 493-94. Accordingly, we hold that the record in the present case similarly supports the trial court’s conclusion that the punishment was not so excessive or severe as to be in violation of state law or the rules of the local school board.

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A0503.
    PARKER v. BELLAMY-LUNDA-DAWSON.
    (378 SE2d 502)
   Beasley, Judge.

Plaintiff Parker files this direct appeal from the trial court’s denial of his motion to set aside final judgment following the grant of summary judgment in favor of defendant Bellamy-Lunda-Dawson Construction Company (BLD). BLD moves to dismiss the appeal on the basis that Parker failed to petition this Court for leave to appeal under OCGA § 5-6-35 (a) (8) and Court of Appeals Rule 40 (8).

Parker filed suit against BLD, the general contractor for construction on a portion of interstate near the Capital Avenue exit ramp, alleging that BLD caused the excavation of a large hole at the end of a portion of the roadway and negligently left the hole unlighted, unprotected, and without any warning barricades, causing the driver of Parker’s bus to drive into the excavated area. Parker sought damages for lost revenue and income from operation of the bus, plus punitive damages.

Decided January 30, 1989

Rehearing denied February 10, 1989

George P. Graves, for appellant.

Alston & Bird, James F. Owens, for appellee.

The trial court granted BLD’s motion for summary judgment and entered final judgment. See OCGA §§ 9-11-56; 9-11-54. Parker did not appeal the order but instead filed a “Motion to Set Aside Judgment and for a New Trial” pursuant to OCGA § 9-11-60. In an amended notice of appeal, Parker seeks to appeal only the refusal to set aside the judgment. The trial court made no express ruling on the new trial aspect of Parker’s motion.

The denial of a motion to set aside a judgment pursuant to OCGA § 9-11-60 is expressly a matter of discretionary appeal under OCGA § 5-6-35 (a) (8). See also Court of Appeals Rule 40 (8). A different result does not occur merely because Parker’s motion also sought a new trial.

“Because the judgment is one of law and does not involve the factual resolution of a jury verdict, it has been held repeatedly that a motion for new trial is not the proper vehicle to obtain a re-examination of the legal conclusions solely involved in a grant of summary judgment. [Cits.]” Sands v. Lamar Properties, 159 Ga. App. 718, 721 (285 SE2d 24) (1981). Even if a motion for new trial was not inappropriate and the trial court’s ruling in effect denied the motion for new trial as well, Parker cannot circumvent the discretionary application procedure by filing a direct appeal of the denial of the motion for new trial that included the denial of the motion to set aside. State Farm &c. Ins. Co. v. Yancey, 258 Ga. 802 (375 SE2d 39) (1989).

Appellee BLD’s motion to dismiss the appeal is granted.

Appeal dismissed.

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


author: Birdsong, Judge.

text:
    77494.
    McCOY v. THE STATE.
    (378 SE2d 888)
   Birdsong, Judge.

Appellant Leon McCoy appeals his conviction of armed robbery. On October 28, 1987, at approximately 3:15 or 3:20 p.m., a black male later identified as the appellant, entered the Video Junction store. The clerk on duty saw him enter. At that time other customers were in the store, and appellant walked around and inquired about store membership. He was told that it required three forms of identification and he informed the clerk that he did not have it. Appellant said that he had a friend who was a member, but he declined to give the clerk his friend’s name. Appellant then walked around the store some more, picked up a movie, and talked about it. When he came to the adult movie section, appellant asked the clerk for a piece of paper on which to jot the names of movies. The clerk gave him a piece of cash register tape. The appellant appeared to be writing movie names on the tape. Only one other customer remained in the store. When that customer left, appellant walked behind the counter carrying a butcher knife, and demanded that the clerk give him the store’s money. Upon seeing the knife the clerk momentarily froze, whereupon the appellant knocked her to the floor. The clerk then arose and gave the appellant the money from the cash register. The appellant lifted up the cash register tray and removed a $5 bill from among the checks which were underneath the tray. The appellant took over $100, according to the clerk, including loose change in quarters, dimes, and nickels. He also took rolls of coins, which the clerk believed to be rolls of pennies; and, the bills taken were in denominations of 20s, 10s, 5s, and Is. The appellant grabbed the clerk by the arm and ordered her to go into the back room; however, she declined to go apparently for fear of being hurt. Appellant then struck the clerk again, knocking her underneath the counter. At this point the clerk feigned unconsciousness, and appellant departed the store. After the lapse of a few minutes, the clerk arose and called the police. She gave a description of appellant to the police over the phone. Patrolman Weaver responded to the call and entered the store. He found the clerk “very upset,” and he talked to her, “calmed her down,” obtained more information from her, and “put it over the radio.” The clerk described the offender as being a black male with a scraggly beard who was wearing blue jeans, a light blue shirt, a blue jacket, and grey shoes.

A short time after 3:26 p.m., Detective Faulk observed a black male standing in front of a trailer at the Cozy Court Trailer Park. When the subject spotted the police car, he began to run. Detective Faulk and Patrolman Rachels pursued the fleeing subject; Faulk fired a warning shot. The appellant stopped and was apprehended by the two officers. The appellant was wearing a blue shirt, blue jeans and grey shoes when apprehended; he did not have a blue jacket in his possession. A subsequent search of appellant revealed that he was carrying about $128. After appellant was taken to the station, a roll of nickels and a roll of pennies were found underneath the patrol car seat in which appellant had been sitting. The total money found in-eluded a roll of pennies, a roll of dimes, a roll of nickels, $41 in $1 bills, loose change, and approximately $70 in $5 and $10 bills.

After his apprehension, and approximately ten minutes after the incident was reported, appellant was driven to the Video Junction store. A police officer entered the store and informed the clerk that they “had a gentleman out in the car and could [she] come outside to see if it was [the perpetrator of the crime], and to identify him.” The clerk also was asked “[i]s this the one that could have robbed you.” Although the car window was rolled up, the clerk saw the appellant and did not “exhibit any hesitation in her identification” of him as the perpetrator of the robbery. The clerk observed that, except for the blue jacket, appellant was wearing the same clothing he had worn during the robbery, including the grey shoes.

The appellant testified that he did not commit , the robbery and asserted an alibi defense. His sister and her son testified in corroboration of his alibi claim. Appellant’s alibi was that he was at home in his sister’s house doing his ironing and other personal chores at the time of the robbery. Appellant claims he subsequently left the apartment to go to the grocery store and was arrested, and that he was carrying cash as he had recently cashed his paycheck. Held:

1. Review of the transcript “reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that appellant was guilty of [the offense] charged.” Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Appellant asserts that the trial court erred in denying his motion for directed verdict, as his conviction of armed robbery (using a knife) and his acquittal of aggravated assault (with a knife) constituted an inconsistent verdict.

The inconsistent verdict rule in criminal cases has been abolished in this state. Milam v. State, 255 Ga. 560 (2) (341 SE2d 216); Robinson v. State, 257 Ga. 194 (3) (357 SE2d 74). This assertion is without merit.

3. Appellant asserts that the trial court erred in refusing to grant a mistrial or to strike the eyewitness testimony from the record, as the eyewitness’ testimony, in which she identified appellant as the perpetrator of the offense, was impermissibly tainted by suggestive and improper police conduct. We disagree.

In determining whether a due process violation occurred in the conduct of the pretrial confrontation between the eyewitness and the appellant, the test is whether the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Selbo v. State, 186 Ga. App. 779, 781 (368 SE2d 548); compare Pack v. State, 182 Ga. App. 618, 619 (356 SE2d 557). In this determination, the following factors will be considered: (a) opportunity to view the defendant at the time of the offense (the witness had a substantial period of time in which not only to view but also to converse with appellant, and the offense occurred in the afternoon); (b) the witness’ degree of attention (the witness exhibited an extremely high degree of attention as reflected by her detailed testimony as to the appellant’s conduct in the store); (c) the accuracy of the witness’ prior description (the description of appellant particularly in regard to his clothing was very accurate); (d) the level of certainty demonstrated (the witness made her pretrial identification of appellant without exhibiting any hesitation, and at trial the witness testified that there was no doubt in her mind that it was appellant in the store); and, (e) the length of time between the crime and the identification (in this case an unusually short period of time elapsed before identification). See generally Pack, supra. Thus, we find that there exists no substantial likelihood of irreparable pretrial misidentification of appellant.

Moreover, notwithstanding any taint in pretrial identification procedures, the witness’ in-court identification may still be admitted if it has an “independent origin” from the illegal identification procedures involved. Selbo, supra at 780; Foster v. State, 156 Ga. App. 672 (2) (275 SE2d 745). Considering the totality of the circumstances, we find the eyewitness’ identification had such an independent origin.

4. In questioning the eyewitness regarding the type of weapon used by the assailant, the prosecutor used and openly displayed in the jury’s presence a knife which was neither used in nor similar to the knife used in the robbery. The knife was not introduced in evidence. Appellant asserts that the trial court erred in allowing this procedure, as the risk of prejudice outweighed the probative value, if any, that the knife displayed would have.

The facts of this case differ from those in Walker v. State, 186 Ga. App. 61 (2) (366 SE2d 400). However, the resulting error was harmless, as the evidence of guilt was so overwhelming “it is ‘highly probable that the error did not contribute to the judgment.’ ” Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869).

5. Appellant asserts that the trial court erred when it refused to grant a mistrial in view of alleged improper questioning and comments by the prosecutor regarding appellant’s right to remain silent.

The argument of counsel is not contained in the trial record, neither has any apparent attempt been made, under OCGA § 5-6-41, to supplement or otherwise preserve the dialogue at issue. Normally, such a deficiency could preclude review of this enumeration of error. However, the record does disclose the following comment by the prosecutor, “[appellant] testified that [the police] had to go into his wallet to find out where he lived and I said that was his privilege and that he had the right to remain silent.” The record also reflects that after making a motion for mistrial appellant’s counsel requested that the court “give us a directed verdict of acquittal in his case,” and that it was this latter motion that was denied by the court.

We are satisfied from the posture of the trial record that appellant voluntarily abandoned his motion for mistrial and substituted therefor a motion for directed verdict of acquittal. It was not error to deny the motion for directed verdict of acquittal. “It is only when the evidence demands a verdict of ‘not guilty’ that it is error for the trial court to refuse to grant a motion for a directed verdict of acquittal.” Payne v. State, 184 Ga. App. 366 (1) (361 SE2d 666). The evidence in the case sub judice is not in this posture. See Division 1.

Moreover, assuming arguendo appellant had not abandoned his motion for mistrial, we are convinced that the argument made in the jury’s presence did not contain a clear comment on the defendant’s decision to remain silent, and thus did not generate error. Compare Jordan v. State, 239 Ga. 526 (3) (238 SE2d 69) and Mitchell v. State, 226 Ga. 450 (4) (175 SE2d 545). Further, even if error of constitutional magnitude had occurred, we find that it would be harmless beyond a reasonable doubt in light of the overwhelming evidence of appellant’s guilt. See Palmer v. State, 186 Ga. App. 892, 897 (369 SE2d 38), and cases cited therein.

6. Appellant’s enumerations of error numbers 1 through 4 concern the introduction in evidence of certain photographs allegedly depicting the money taken during the robbery and either found on the accused or under the seat in the police car on which appellant was seated after his apprehension. We find these enumerations to be without merit.

a. Appellant asserts an improper foundation was laid for the introduction of the photographs. As a general rule, “ ‘[bjefore a photograph may be introduced in evidence, it must be authenticated by a showing that it is a fair and truthful representation of what it purports to depict. [Cit.] “The quantum of evidence required to sufficiently identify photographs as true and accurate representations of what they purport to depict is. a matter to be left within the discretion of the trial court.” ’ ” Turner v. State, 181 Ga. App. 531 (353 SE2d 13). Appellant has failed to show any abuse of discretion on the part of the trial judge in this regard.

Assuming without deciding that the money in question constituted evidence of a fungible nature generally requiring, as a condition to its admission in evidence, that the State “show a chain of custody which is adequate to preserve the identity of the evidence,” Kelly v. State, 182 Ga. App. 7 (2) (354 SE2d 647), we find that such a chain has been established. When chain of custody is required, “the burden is on the prosecution ‘to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution.’ [Cit.] However, the State need not negate all possibility of tampering, and ‘need only establish reasonable assurance of the identity’ of the confiscated evidence.” Kelly, supra at 9; see Tillery v. State, 188 Ga. App. 320 (1) (372 SE2d 851); Tyson v. State, 184 Ga. App. 309 (2) (361 SE2d 386). The State met its burden, by introduction of direct and circumstantial evidence, of showing with reasonable certainty that the photographs were of the same money taken from the accused or found in the police car and that there had been no tampering or substitution. Therefore, the photographs were properly admitted.

b. Appellant asserts that the admission of the photographs violated the provisions of OCGA § 17-5-50, regarding the disposition of seized property. We find this enumeration of error to be without merit. Subsections (a), (b), (d), and (e) of OCGA § 17-5-50, on their face, show that these provisions do not establish any procedural prerequisites to the admission into evidence of any photographs of any stolen, embezzled, or otherwise unlawfully obtained property that is or was in the custody of the police. Thus, the failure of the police to comply with these provisions prior to the tender of the money taken from appellant to the owner of Video Junction did not preclude the admission of these photographs in evidence.

While subsection (c) of OCGA § 17-5-50 does, in part, pertain to the admission in evidence of photographs of such property when it has been duly identified in writing, it does not prohibit the introduction of such photographs under some other method of authentication. In fact, the legislative history of this code section and its predecessor reveals that, rather than being a rule of restriction, it was “to provide that photographs or other identification of said property shall be deemed competent evidence and admissible at trial. . . .” Ga. L. 1978, p. 2260. See Ga. L. 1979, p. 761. For reasons above discussed, we find that the photographs were duly authenticated and that a proper foundation was laid for their admission in evidence.

c. Appellant in part asserts that he was denied the right to analyze the actual money taken and was denied the right to confront the witnesses and to question them based on “analyzation of the actual money.” The trial record reflects appellant made no specific objection to the admission of the photographs on the grounds that he was denied a right to analyze the money. Accordingly, this portion of his first enumeration of error is waived. Allen v. Montgomery Ward & Co., 186 Ga. App. 337 (2) (367 SE2d 120), and cases cited therein. We find that the remaining portion of his first enumeration of error and his fourth enumeration of error are both without merit.

d. Assuming arguendo error had occurred as asserted in enumerations of error 1 through 4 by the admission in evidence of the photographs, we find beyond a reasonable doubt that such error, even if of constitutional magnitude, would be harmless. See Palmer v. State, supra at 897. Moreover, we note that Patrolman Rachels testified without objection regarding the amount of money and coins found on appellant and in the patrol car.

Decided February 10, 1989.

Randolph H. Phillips, for appellant.

Hobart M. Hind, District Attorney, John L. Tracy, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


author: McMurray, Presiding Judge. Benham, Judge,

text:
    77685.
    LOVE v. THE STATE.
    (378 SE2d 893)
   McMurray, Presiding Judge.

Defendant was convicted of the offenses of kidnapping with bodily injury, rape, incest and cruelty to children. A sentence was imposed as to each conviction except the rape conviction, which the trial court determined merged into the conviction for kidnapping with bodily injury. On appeal, defendant contends the evidence did not authorize his conviction of kidnapping with bodily injury and that the offenses of incest and cruelty to children merged into greater offenses. Held:

1. All of the offenses with which defendant was charged arose from a single incident involving the defendant’s 15-year-old niece. Defendant accompanied the victim and her sister to a movie. Afterwards the victim and defendant went for a walk. Eventually the two sat on “a concrete block that goes across the creek . . As the victim sat on the “concrete block” the defendant sat behind her and asked her if she was scared of him. After she answered, “no,” he grabbed the back of her head and “jerked [her] down off the concrete block onto the dirt.” Defendant then told the victim to take off her clothes or he would kill her. The defendant refused to let the victim up, held her on her throat, and continued telling her to take her clothes off. After the victim took her shorts off, defendant got on top of her and had vaginal intercourse with the victim. Defendant was on top of the victim for about five minutes, during which time he told the victim he would kill her if she ever told anybody. After the defendant got through he permitted the victim to put her clothes back on and leave. An officer with the Douglas County Sheriff’s Department testified he investigated the crime scene where a concrete culvert was situated over the creek running underneath the road. (In her testimony, the victim had referred to the culvert as “a concrete block that goes across the creek . . .”)

Defendant contends his conviction of kidnapping with bodily injury was not authorized because there was no evidence of asportation. “[0]nly the slightest movement of the victim is required to constitute the necessary element of asportation. Brown v. State, 132 Ga. App. 399, 401 (208 SE2d 183).” Helton v. State, 166 Ga. App. 662, 663 (1) (305 SE2d 592). Further, we find “that there was sufficient evidence introduced by the state at trial to authorize the jury in convicting the [defendant] of kidnapping with bodily injury to the victim.” Peck v. State, 239 Ga. 422, 427 (238 SE2d 12). See Lassiter v. State, 175 Ga. App. 338, 340 (4) (333 SE2d 412).

2. “An examination of the elements of rape and incest . . . reveals that, as a matter of fact, if [defendant] were found to have engaged in sexual intercourse, a necessary element of rape, with his niece, an incestuous relationship proscribed by [OCGA § 16-6-22], then he must necessarily have committed the crime of incest. Thus, applying the ‘alternative test’ enunciated in Pryor [v. State, 238 Ga. 698 (234 SE2d 918)], it appears that as a matter of fact, in the instant case, the crime of incest is ‘included’ within the crime of rape, as intended by [OCGA § 16-1-6].” Ramsey v. State, 145 Ga. App. 60, 64 (10) (243 SE2d 555), reversed on other grounds, 241 Ga. 426 (246 SE2d 190). Accordingly, defendant’s conviction and sentence on the incest charge must be vacated. McCranie v. State, 157 Ga. App. 110, 111 (1) (276 SE2d 263). See Sparks v. State, 185 Ga. App. 225, 226 (1) (363 SE2d 631).

3. We find no merit in defendant’s contention that the conviction of cruelty to children merged in the greater crime of rape. “In determining whether a crime is established by proof of the same or less than all the facts required to establish the commission of another crime, within the meaning of [OCGA § 16-1-6], [we] ‘look to the actual evidence introduced at trial. . . . [I]f the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact under .[OCGA § 16-1-6].’ [Cit.]” Haynes v. State, 249 Ga. 119, 120 (2) (288 SE2d 185).

In the case sub judice, the evidence used to establish the offense of cruelty to children was the grabbing and pulling of the victim’s hair and holding her throat. The offense of rape, including the element of force, was amply proven by the subsequent events including defendant’s threats before and during intercourse to kill the victim. Drake v. State, 239 Ga. 232, 235 (1) (236 SE2d 748); McNeal v. State, 228 Ga. 633, 635 (2) (187 SE2d 271). Thus, the jury was authorized to conclude that two separate and distinct offenses were committed. Morris v. State, 179 Ga. App. 228, 229 (6) (345 SE2d 686); Shab v. State, 187 Ga. App. 513 (370 SE2d 775).

Judgment affirmed as to convictions and sentences for the of fenses of kidnapping with bodily injury and cruelty to children; judgment reversed as to conviction and sentence for the offense of incest.

Decided February 10, 1989.

Edwards & Krontz, Jennifer McLeod, for appellant.

Frank C. Winn, District Attorney, for appellee.

Pope and Benham, JJ., concur. Benham, J., also concurs specially.

Benham, Judge,

concurring specially.

While I am in total agreement with Presiding Judge McMurray’s opinion, this special concurrence is filed to better explain my position on the matter of kidnapping as discussed in Division 1 of the main opinion.

Under OCGA § 16-5-40 (a), “[a] person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.” For there to be a kidnapping conviction there must be some type of asportation, no matter how slight, as in Brown v. State, 132 Ga. App. 399 (2) (208 SE2d 183) (1974). See also McKenzie v. State, 187 Ga. App. 840, 842 (371 SE2d 869) (1988). In the case sub judice, the “carrying away” was ever so slight, occurring when defendant dislodged the victim from the concrete wall and forced her to the ground several feet below, thereby removing her from a public place to a concealed place. Appellant would have us rule that for asportation to take place, the perpetrator must remove the victim to a “different location.” “Asportation” does not require removal to a different location. Williams v. State, 178 Ga. App. 581 (12) (344 SE2d 247) (1986). However, in those cases where the movement involved is minimal, and the alleged kidnapping occurs in furtherance of some other criminal enterprise such as rape, the movement necessary to constitute “asportation” must be more than a mere positional change, e.g., from a standing to a supine position. It must be movement that is not merely incidental to the other criminal act, but movement designed to carry out better the criminal activity when, as here, there is movement from a place of visibility to a place of concealment.


author: Carley, Chief Judge.

text:
    77874.
    KNOPP v. THE STATE.
    (378 SE2d 703)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of child molestation and aggravated child molestation. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

Decided February 10, 1989.

1. The trial court, after conducting a hearing outside the presence of the jury, found that the seven-year-old victim was competent to testify. Appellant enumerates this ruling as error, urging that the victim never demonstrated that she knew and appreciated that a violation of her oath as a witness would subject her to punishment by the court.

“It is not necessary that a child demonstrate his knowledge of the penalties for perjury in order for the trial court to rule him competent to testify.” Hill v. State, 251 Ga. 430, 431 (306 SE2d 653) (1983). The record here shows that the victim knew and appreciated that “[i]f you tell a lie, you get a whipping.” Accordingly, as in Hill, supra, the trial court in the present case did not abuse its discretion in ruling that the victim was competent to testify.

Appellant further urges that the trial court subsequently erred in allowing the victim to give her testimony without actually ever having been administered the oath. Even assuming that this contention were supported by the record, any error was waived by the failure of appellant to object. See Belcher v. State, 173 Ga. App. 509 (1) (326 SE2d 857) (1985).

2. An expert witness for the State testified as to statements made to him by the victim, which statements were incriminating of appellant. The admission of this testimony is enumerated as error.

The record shows that the only objection appellant raised was that the expert witness’ testimony related to statements which the victim had made at a point “too far removed in. time to fall within the res gestae or the hearsay rule.” It is clear that the testimony of the expert witness was hearsay and that it was not admissible under the res gestae exception. However, the expert’s testimony would nevertheless be admissible if it was shown to be within the statutory exception created by OCGA § 24-3-16. See generally Eberhardt v. State, 257 Ga. 420 (1) (359 SE2d 908) (1987). The record shows that the victim was not only available to testify in the proceedings, she was called as the State’s first witness and that, prior to the admission of the expert witness’ testimony, the trial court determined that the circumstances surrounding the victim’s statements provided sufficient indicia of reliability. Accordingly, there was compliance with OCGA § 24-3-16 and the trial court did not err in allowing the testimony of the expert witness into evidence.

Judgments affirmed.

Deen, P. J., and Sognier, J., concur.

Franklin H. Thornton, for appellant.

William G. Hamrick, District Attorney, for appellee.


text:
    77920.
    McCLEARY v. WHITE REPAIR & CONTRACTING COMPANY.
    (378 SE2d 897)
    Decided February 10, 1989.

      James M. Anderson III, for appellant.

      Moore & Rogers, Stephen C. Steele, David P. Oliver, Raiford, Dixon & Thackston, Tyler C. Dixon, for appellee.
   Carley, Chief Judge.

Appellee-plaintiff filed suit, seeking to recover against appellant-defendant for the breach of a written contract to make repairs to an apartment complex. According to the terms of the agreement, appellee, as the “Contractor,” had contracted with “Fulton Associates, Inc. & Azalea Place Apts.,” as the “Owner.” The contract was signed by William Fulton, as “Agent for Owner.” Appellant answered and raised, among his other defenses, the absence of any contractual relation between appellee and himself.

Appellant subsequently moved for summary judgment. The trial court denied appellant’s motion, but certified its order for immediate review. We granted appellant’s application for an interlocutory appeal to determine whether a genuine issue of material fact remains as to his personal liability on the contract.

The undisputed evidence of record with regard to the relationship between appellant and Fulton Associates, Inc., is, in all material aspects, identical to that in White Repair & Contracting Co. v. Oviedo, 188 Ga. App. 672 (373 SE2d 784) (1988). “[I]t is clear that the relationship between [appellant] and . . . Fulton Associates [Inc.] was that of employer and independent contractor rather than that of principal and agent.” White Repair & Contracting Co. v. Oviedo, supra at 673 (1). It follows that here, as there, no genuine issue of material fact remains as to appellant’s personal liability on the contract which was negotiated and signed by an independent contractor rather than by appellant’s agent. The trial court erred in denying appellant’s motion for summary judgment.

Judgment reversed.

Deen, P. J., and Sognier, J., concur.


text:
    A89A0035, A89A0036.
    DELTA INTERNATIONAL MACHINERY CORPORATION v. PLUNK et al. (two cases).
    (378 SE2d 704)
   Banke, Presiding Judge.

Acting as parents and next friends of their minor son, Michael, Mr. and Mrs. Plunk brought the present action against Delta International Machinery Corporation (hereinafter referred to as “Delta”) and the McDuffie County Board of Education, seeking to recover for injuries which Michael had allegedly sustained in shop class while using a power saw manufactured by Delta. The Plunks alleged in their complaint that Delta transacted business within this state but had failed to appoint a registered agent for service of process, with the result that the Secretary of State could be considered its agent for service.

Copies of the complaint and summons were served upon the Secretary of State on April 20, 1988. However, on May 18, 1988, the Secretary returned the documents to the Plunks’ counsel with the following explanation: “[Defendant corporation n]ot on record with us, do not known (sic) if foreign or domestic. NEED ADDRESS WHERE WE CAN SERVE DOCUMENTS.” Thereafter, the documents were evidently re-submitted to the Secretary of State along with the requested address, for the record reflects that on June 3, 1988, the Secretary sent a copy of the complaint and summons to Delta by certified mail, addressed to a post office box in Memphis, Tennessee. Delta acknowledged delivery of the documents by return receipt dated June 7, 1988. Thereafter, on June 21, 1988, it filed a motion “to open default” pursuant to OCGA § 9-11-55 (b); and on June 24, 1988, it filed defensive pleadings.

On July 9, 1988, the plaintiffs. filed a “Motion to Take Default Judgment,” asserting that service of process had been perfected upon Delta on April 20, 1988, when the complaint and summons were originally delivered to the Secretary of State, and that the claim against Delta had consequently gone into default on May 20, 1988. Delta’s motion to open default was denied on July 22, 1988; and on August 8, 1988, the court entered a default judgment against the company with respect to liability, reserving the issue of damages for trial. In the meantime, on August 5, 1988, Delta had filed a motion to dismiss the claim based on insufficiency of service of process, contending that it did not transact business in this state within the contemplation of OCGA §§ 14-2-310 and 14-2-319 and that, consequently, it was not required to appoint a registered agent for service of process in this state and was not subject to the substituted service provisions of OCGA § 14-2-319. However, no ruling was ever entered on that motion. The case is currently before us pursuant to our grant of Delta’s separate applications for interlocutory appeal from the order entering the default judgment and the order denying its motion to open default. Held:

1. Although Delta argues vigorously that it does not transact business in this state and consequently was not required to appoint an agent for service of process here, we do not reach this issue. See generally Spiegel, Inc. v. Odum, 153 Ga. App. 380 (265 SE2d 297) (1980). Instead, we conclude that, even assuming substituted service on the Secretary of State was authorized, such service was not shown by the record to have been effected prior to June 3, 1988, the date the Secretary mailed a copy of the summons and complaint to Delta by certified mail. As that date was less than 30 days before Delta filed its answer, we accordingly hold that the answer was not in default.

OCGA § 14-2-319 (b) provides, in pertinent part, as follows: “In the event any such process, notice, or demand is served on the Secretary of State, he shall immediately cause one of such copies thereof to be forwarded by registered or certified mail, addressed to the corporation at its principal office in the jurisdiction under the laws of which it is incorporated. Any service so made on the Secretary of State shall be answerable in not less than 30 days.” (Emphasis supplied.)

Because the Secretary of State could not reasonably be expected to have on file the address of an unregistered foreign corporation at its “principal office in the jurisdiction under the laws of which it is incorporated,” we believe the Secretary acted properly in the present case in returning the service documents to the plaintiffs’ counsel on May 18, 1988, with instructions to provide the necessary mailing address. There being no indication in the record that the complaint and summons were thereafter re-submitted to the Secretary of State along with a mailing address prior to June 3, 1988, there is thus no basis upon which it could be concluded that service was properly effected upon the Secretary of State prior to that date.

We additionally note that, in construing the analogous provisions of OCGA § 14-2-62 (b) (former Code Ann. 22-403 (b)), dealing with domestic corporations, this court has indicated that although there is no requirement that a corporation actually receive the service copy of the complaint and summons mailed to it by the Secretary of State, service upon the Secretary of State is not complete until the Secretary “does his duty and sends a copy to the defendant. . . .” American Consolidated Svc. Corp. v. Nationwide Mut. Ins. Co., 156 Ga. App. 193, 195 (273 SE2d 898) (1980), citing Stesu, Inc. v. Roger Toole Drywall, 141 Ga. App. 636, 638 (234 SE2d 102) (1977). Indeed, if the statute were construed otherwise, it would undoubtedly be violative of the constitutional due process requirement that service of process be effected in a manner which is reasonably calculated to apprise the defendant of the pendency of the action and to afford him an opportunity to present his defenses. See generally Benton v. Modern Fin. &c. Co., 244 Ga. 533 (261 SE2d 359) (1979), citing Mullane v. Central Hanover Bank &c. Co., 339 U. S. 306 (70 SC 652, 94 LE2d 865) (1949). Accord Davis v. Hybrid Indus., 142 Ga. App. 722 (1) (236 SE2d 854) (1977). For these reasons, we hold that service upon Delta was not perfected at the time the service documents were originally served upon the Secretary of State.

Decided February 10, 1989.

Fulcher, Hagler, Reed & Obenshain, James W. Purcell, for appellant.

This court’s decision in Frazier v. HMZ Property Mgmt., 161 Ga. App. 195 (291 SE2d 4) (1982), cannot be construed as authority for a contrary conclusion. There, the defendant was a domestic corporation which had appointed a registered agent for service; however, because the registered office had burned, the agent could not be located there. We concluded that substituted service upon the Secretary of State was sufficient under such circumstances even though the Secretary of State had merely mailed the service documents to the non-existent registered office upon receiving them, reasoning that “[i]f the defendant . . . had complied with the statutory requirement to maintain á registered office and registered agent, and had notified the Secretary of State of its change of address, it would have had service of the suit.” Id. at 197. The defendant in the present case was not a domestic corporation but an unregistered foreign corporation with no address of any kind on file with the Secretary of State’s office. Thus, the Secretary of State had no address, current or otherwise, to which to mail the service documents until the plaintiffs provided it with one. Since the defendant contends it was under no legal obligation to maintain a registered agent and office for service of process in this state because it did not transact business here, it certainly cannot be treated, at this stage of the proceedings, as having forfeited its right to notice of the lawsuit.

2. We do not reach the issue of whether the trial court erred in failing to grant Delta’s motion to dismiss the complaint for lack of jurisdiction, inasmuch as the trial court has not ruled on that motion. Nor do we express any opinion regarding whether, assuming that Delta was subject to the substituted service provisions of OCGA § 14-2-319, such service was properly effected. We merely hold that Delta’s answer was timely filed and that the court accordingly erred in entering a default judgment against it.

Judgments reversed.

Sognier and Pope, JJ., concur.

McNeill Holloway III, Robert E. Knox, Jr., for appellees.


text:
    77395.
    SPRINGER v. GAFFAGLIO.
    (378 SE2d 691)
   Birdsong, Judge.

Appellant, Dennis Springer, appeals the trial court’s order granting partial summary judgment to appellee, Diane Gaffaglio, on her complaint as to appellant’s liability only, and in favor of appellee on the counterclaim of appellant. The trial court reserved judgment on the issues of damages pending proof by the appellee on the amount of set-off for certain collateral, on payment of the intangible taxes, and on the issue of attorney fees.

Appellee sold her embroidery business to appellant. Appellant later assigned the purchase contract to Springer Enterprises, Inc. (SEI) which, among other financial arrangements, executed a promissory note to MAE, Inc., another corporate entity operated by appellee and which was subsequently liquidated. Appellant also executed a personal limited guaranty backing the promissory note. After MAE was liquidated, both the limited guaranty and the promissory note were assigned to the sole shareholder, the appellee. Appellant subsequently sold the embroidery business, and the secured promissory note made by SEI was assumed by LMF, Inc. Afterwards, LMF failed to make payments on the note, was declared in default, and the entire amount owing under the terms of the note became due and payable. Appellee demanded but did not receive payment from appellant for all amounts due on the note in excess of $74,000, according to the alleged terms of the limited guaranty. When appellant did not make payment, appellee initiated suit on the deficiency guaranty backing the promissory note. Appellant counterclaimed, asserting among other pertinent matters that appellee violated a non-competition agreement executed in connection with the sale and that she tortiously interfered “with the contractual relations between the corporation owned by [appellant] and its employees for the sole purpose of interfering with and ruining the business of Springer Enterprises, Inc.” Held:

1. Appellant asserts that the trial court erred in failing to enforce the bar to prosecution contained in OCGA § 48-6-32 regarding any action on a promissory note or guaranty where a payee has wilfully failed to pay intangible taxes thereon.

OCGA § 48-6-32 pertinently provides that “[w]illful failure to return any property to the commissioner for taxation as required . . . shall be a bar to any action upon the property in any court and may be pleaded as a complete defense to the action, but the holder of the property may at any time pay all taxes. . . . Payment in full shall relieve the holder from the penalty provided. ...”

In resolving this issue, we note that appellee’s assertion in her brief that she has paid the intangible taxes is unsupported by evidence of record, and accordingly cannot be considéred on appeal. Behar v. Aero Med. Intl., 185 Ga. App. 845 (1) (366 SE2d 223).

In Peters v. Thomason, 157 Ga. App. 513 (2) (277 SE2d 798), this court held that although intangible tax was not paid before suit was filed, the statute constitutes no barrier to the action when the amount due is fully paid “prior to trial.” Assuming without deciding that the record supports a finding that appellee’s alleged failure to pay the tax was wilful, we are satisfied that the trial court’s order, partially granting summary judgment but reserving judgment on the issues of damages in pertinent part based on the payment of intangible taxes, was in substantial compliance with the provisions of OCGA § 48-6-32. OCGA § 1-3-1 (c).

2. Appellant asserts that the trial court improperly received, over his objection, oral testimony in support of appellee’s summary judgment motion. The trial court’s order reflects that it did consider oral testimony of the appellee over appellant’s objection. This oral testimony has not been transcribed and forwarded as a part of the record before us, nor has appellant attempted to otherwise supplement the record as to the alleged content of this testimony.

It is generally a matter within the sound discretion of the trial court whether to permit the introduction of oral evidence on the hearing of a motion for summary judgment. Blackstone Indus. v. Andre, 232 Ga. 715 (208 SE2d 815). But the trial court is not obligated to do so; and, when it does admit oral evidence it must do so “in strict conformity with the law.” Pierce v. Gaskins, 168 Ga. App. 446, 450 (309 SE2d 658). Assuming arguendo that the trial court abused its discretion in considering this evidence when it was not transcribed and “on file” at least 30 days before hearing (Pierce v. Gaskins, supra, and cases therein cited; see Lynch v. Ga. Power Co., 180 Ga. App. 178 (348 SE2d 719); Bonds v. John Wieland Homes, 177 Ga. App. 254, 256 (339 SE2d 318)), appellant has failed to establish how this error was prejudicial to him. The record contains a detailed affidavit by the appellee. This affidavit in conjunction with the total evidentiary posture of record is more than sufficient to support the trial court’s ruling. In the absence of the appellant providing this court with the content of the oral evidence of which he complains, we will not presume this assumed error to be prejudicial. It is well-settled that “[a]ppellant must show error which has hurt him.” Leverett v. Flint Fuel, 183 Ga. App. 75, 78 (3) (357 SE2d 882). Further, in the absence of a transcript of the oral evidence or of a stipulation filed in lieu thereof, prepared in any manner authorized by OCGA § 5-6-41, we cannot consider an enumerated error where meaningful review of the error is dependent upon the contents of such a transcript. See generally Brown v. State, 223 Ga. 540 (2) (156 SE2d 454); White v. State, 174 Ga. App. 531 (2) (330 SE2d 760). “We cannot rule on the merits in the dark.” Blount v. Moore, 175 Ga. App. 288, 290 (333 SE2d 167).

3. Appellant asserts that the trial court erred in granting appellee partial summary judgment, as it necessarily made findings of credibility when it resolved the tortious interference and failure of consideration issues.

“On a motion for summary judgment, ‘the movant has the burden of showing affirmatively that there is no genuine issue of material fact, and that he is entitled to judgment as a matter of law. Moreover, when the movant is the defendant, he has the additional burden of piercing the plaintiff’s allegations and affirmatively negating at least one essential element of the plaintiff’s case.’ [Cit.] In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion.” Peterson v. Liberty Mut. Ins. Co., 188 Ga. App. 420, 422 (373 SE2d 515).

At the onset, we find that there exist some unexplained contradictions between certain matters found in appellant’s deposition and in his supporting affidavit. In particular, we note an inconsistency regarding the issue of whether appellee ever engaged in the training/ instruction of appellant’s employees. As to certain applicable contradictions, we will apply the rule of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680).

“Generally, a guarantor may assert all defenses to a contract which would be available to his principal, with the exception of personal defenses, such as infancy, bankruptcy and incapacity. [Cit.] Failure of consideration is clearly a viable affirmative defense to an action on a contract. . . . Accordingly, failure of consideration is an available defense to a guarantor.” Jones v. Dixie O’Brien Div., 174 Ga. App. 67 (1) (329 SE2d 256). There is no failure of consideration in the case at bar. Virgil v. Kapplin, 187 Ga. App. 206 (3) (369 SE2d 808). However, it also has been recognized that “a guarantor is partially discharged to the extent that there has been a partial failure of such consideration.” 38 AmJur2d, Guaranty, § 51.

Suffice it to say that based on the posture of the record, there is at best some shadowy semblance of an issue regarding any asserted failure of consideration and tortious interference. OCGA § 9-11-56, pertaining to summary judgment “does not require the [movant] to show that no issue of fact remains, but rather that no genuine issue of material fact remains [cit.]; and while there may be some ‘shadowy semblance of an issue’ [cit.], the case may nevertheless be decided as a matter of law where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion.” McCray v. Hunter, 157 Ga. App. 509, 511-512 (277 SE2d 795); accord Peterson v. Liberty Mut. Ins. Co., supra at 424.

Decided January 31, 1989

Rehearing denied February 13, 1989

Schreeder, Wheeler & Flint, John A. Christy, J. Christopher Desmond, for appellant.

Harry J. Winograd, for appellee.

Accordingly, we find this enumeration of error to be without merit.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


text:
    77625.
    WHITE v. HARDEGREE.
    (378 SE2d 877)
   Beasley, Judge.

White was treated by physician Serrato, operator of Columbus Orthopedic Clinic, P. C., following an auto collision. White assigned his no-fault (PIP) insurance benefits to the clinic to pay for his treatment. Coverage was provided by Balboa Insurance Company. Balboa’s claims were administered by Ebco General Agency, which retained adjuster Haywood to process White’s claim.

The clinic sent Haywood a copy of the assignment of benefits with the result that, when White made his initial request for payment of PIP benefits, Balboa issued the check payable to White, White’s attorney Kent, and the clinic. During a meeting between Haywood and Kent, Kent informed Haywood that the clinic had been paid. Kent sent the check back to Haywood asking that it be reissued, eliminating the clinic as a payee because it allegedly had been paid. Kent sent a second similar request to Haywood. At Haywood’s request, Balboa issued a second check for White’s remaining PIP benefits to White and Kent.

The clinic claimed nonpayment and, by attorney Hirsh, sued White, Balboa, Ebco, and Haywood individually and d/b/a Haywood Adjusters. It alleged that each was liable for the cost of medical treatment rendered to White. Prior to filing suit, Hirsh sent a demand letter on behalf of the clinic to Clark, the independent agent who had procured the Balboa policy for White.

Thereafter, Balboa and Haywood sought attorney Hardegree’s advice as to whether they would have to pay twice for the clinic’s treatment of White. It was Hardegree’s opinion that, notwithstanding Kent’s representations to Haywood that the clinic had been paid, Balboa would have to pay again because it had knowledge of the alleged assignment of benefits prior to issuing the second PIP benefits check to only White and Kent.

Hardegree wrote Kent informing him that he had been retained by Balboa, that he agreed with Hirsh that Balboa was secondarily liable to the clinic because of the assignment of which it had notice, and that Balboa through Haywood had reissued the check payable to only Kent and White based upon Kent’s oral and written representations that the clinic had already been paid. The letter instructed and requested Kent and White, individually and jointly, to pay the clinic the amount which had been paid directly to them.

In response to the filing of the clinic’s action, Haywood and Balboa filed cross-actions against White, and Haywood filed a third-party complaint against Kent alleging that Kent fraudulently induced the payment of the PIP benefits to himself and to White.

White, represented by Kent, then filed a third-party complaint against Hardegree. The contentions in White’s claim were essentially that 1) Hardegree had manufactured allegations against Kent to force White and Kent to pay the clinic charges; 2) Hardegree falsely and wilfully misled and caused attorney Hirsh to file the suit on behalf of the clinic; 3) in Hardegree’s letter to Kent there were certain libelous statements which in some way accused Kent and White of a crime and were otherwise actionable; 4) in the letter, Hardegree had accused Kent and White of fraud and misrepresentation, and demanded that money be paid under a void assignment of benefits which Hardegree knew was void; 5) Hardegree’s letter contained certain false allegations which were made in an attempt to force payment of the debt to the clinic; 6) in the letter Hardegree had falsely and maliciously stated that Balboa had been induced by Kent’s statement that the clinic had been paid to reissue a check payable only to Kent and White; 7) Hardegree’s letter was actionable, intentional and non-privileged interference by a third party (Hardegree) with the existing contractual relations between White and Balboa; 8) Hardegree’s actions were a deliberate attempt to accuse Kent and White of a crime and to force the collection of a claim; and 9) Hardegree requested or influenced Haywood to file a complaint against Kent with the State Bar of Georgia. White prayed for all expenses and attorney fees incurred in defending the clinic’s action, the cross actions and the third-party complaint against Kent, damages for “fraudulent conspiracy to recoup” the insurance benefits, and general and punitive damages.

Hardegree moved for summary judgment on White’s third-party claim against him. It was granted, and White appeals.

1. The third-party complaint at issue and this appeal have been brought solely by White. However, the substance of virtually all of the contentions of Hardegree’s tortious actions, i.e., statements and motivation as reflected in Hardegree’s letter to Kent, are directed to Kent rather than White. A threshold question is whether such claims can stand at all brought solely by White. However, it need not be decided because there is no indication that a real party-in-interest objection, see OCGA § 9-11-17, was raised below. Further, “summary judgment cannot properly be granted to a defendant on the basis of a real party-in-interest objection. [Cit.]” Warshaw Properties v. Lackey, 170 Ga. App. 101, 102 (316 SE2d 482) (1984).

2. Statements in the letter regarding Kent’s assurances that the clinic had been paid are supported by the evidence, including Kent’s own affidavit to the effect that he had informed Haywood that the clinic had been paid and had requested that Balboa reissue the benefits check to White.

There is no evidence that attorney Hirsh was induced by action or statement of Hardegree to file suit on behalf of the clinic. Hirsh averred in affidavit that in filing suit, he did not rely in any way on any statement made by Hardegree as to the validity or non-validity of the assignment of no-fault benefits to the clinic nor was he induced to file suit by anything Hardegree did or said.

There is no evidence that Hardegree had knowledge of any defect in the assignment of benefits.

There is no evidence of actionable libel stemming from the letter in question. See OCGA § 51-5-1. First, there is no evidence that Hardegree’s statements were false. In fact, quite the opposite. The statements were premised on Kent’s admitted representations to Haywood that the clinic had been paid and Kent’s repeated requests for reissuance of the insurer’s check deleting the clinic as a payee. See OCGA § 51-5-6. Moreover, Hardegree was expressing his legal opinion about the situation of the clinic’s claims and the parties’ respective liabilities in relation thereto. “The expression of opinion on ‘matters with respect to which reasonable men might entertain differing opinions’ [cit.] is not libelous.” Bergen v. Martindale-Hubbell, Inc., 176 Ga. App. 745, 747 (3) (337 SE2d 770) (1985). Also, the statements were privileged communications under OCGA § 51-5-7 (2), (3) and (6).

Finally, there is no evidence to successfully counter Haywood’s averment in affidavit that Hardegree never urged or suggested in any way that he file an ethical complaint against Kent with the State Bar of Georgia.

Hardegree, having successfully pierced White’s allegations and established as a matter of law that White could not recover under any theory fairly drawn from the pleadings and evidence, was entitled to summary judgment as a matter of law. Holiday Inns v. Newton, 157 Ga. App. 436, 437 (278 SE2d 85) (1981); OCGA § 9-11-56.

Decided January 30, 1989

Rehearing denied February 13, 1989

L. B. Kent, for appellant.

H. Lane Young II, Joseph A. Roseborough, for appellee.

3. Appellee moves this court for the imposition of a penalty against appellant for bringing a frivolous appeal pursuant to OCGA § 5-6-6, but the statute awards 10 percent damages only “upon any judgment for a sum certain which has been affirmed.” He also asks that sanctions be awarded pursuant to “all other relevant Georgia law.” Therefore, we address his request under Court of Appeals Rule 26 (b) which permits this court to impose a penalty not to exceed $500 for a frivolous appeal in those civil cases in which there is no money judgment.

Inasmuch as we find no reasonable basis for the appellant to have anticipated reversal of the trial court’s judgment, we assess a penalty of $500 for a frivolous appeal. Judgment is to be entered for this amount against appellant and in favor of the appellee. See Fortenberry v. Sanders, 172 Ga. App. 509, 510 (4) (323 SE2d 697) (1984).

Judgment affirmed with, direction.

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