text:
    A94A2254.
    SAFFAR v. CHRYSLER FIRST BUSINESS CREDIT CORPORATION.
    (450 SE2d 267)
   Birdsong, Presiding Judge.

Joseph Saffar, Jr., appeals from the orders of the superior court granting appellee/plaintiff Chrysler First Business Credit Corporation’s (“CFBCC”) motion for summary judgment as to appellee’s claim and appellant’s counterclaim, and the entry of final judgment in behalf of appellee.

Appellant contracted to purchase and ultimately purchased an apartment complex from Frederick Spencer for $900,000. Appellant was loaned $500,000 mortgage money by appellee CFBCC and executed a security deed and a promissory note in that amount to CFBCC as security. The seller Spencer purchased the property, apparently out of bankruptcy from the Windy Valley Investment Group, Ltd. (“Windy Valley”) for $400,000. Appellee CFBCC was not a party to the purchase or sales contract between appellant and Spencer; neither was it a party to the purchase or sales contract between Spencer and Windy Valley. Spencer did not have legal title to the property at the time he entered the original sales contract with appellant; however, he acquired title during a joint closing at which all of the above parties were present and participated. At the closing, Spencer appears to have closed first and then immediately to have conveyed title to the property to appellant. Further, by the date of closing, the effective date of the sales contract between appellant and Spencer had expired; nevertheless, these parties proceeded with the sale under, at least, modified terms as to the manner in which the $900,000 purchase price would be funded. Appellant elected not to be represented by individual counsel at closing.

Appellant subsequently discovered that Spencer had purchased the property at the same closing for only $400,000 and that substantial repairs, particularly as to underground and related plumbing, were needed on the premises; appellant thereafter quit paying on the note. Appellee brought suit on the note and appellant filed an amended answer and counterclaim averring fraud. Appellant contends on appeal that the trial court erred in granting appellee’s motion for summary judgment as genuine issues of material fact exist whether: (a) appellee fraudulently concealed material information from appellant which it should have disclosed and was required to disclose under the circumstances; (b) appellee fraudulently made a material misrepresentation to defendant that it had obtained an appraisal; and (c) the amount of the debt was in factual dispute. Held:

1. We first address appellant’s contention that a genuine material fact exists as to the amount that was due and owing on the loan. Appellant’s brief contains no citations to any page of the record or transcript in support of this enumeration in violation of Court of Appeals Rule 15 (c) (3). Further, examination of the argument of counsel for appellant at the hearing on motion for summary judgment, the response of appellant/defendant to plaintiff’s motion for summary judgment, and appellant/defendant’s statement of material facts to which there is a genuine issue to be tried, reflects that this contention was not asserted before the trial court. “ ‘Each party has a duty to present his case in full at the hearing on the motion for summary judgment.’ ” Coker v. Culter, 208 Ga. App. 651, 652 (431 SE2d 443). We will not consider the validity of a trial court’s ruling based on a completely different legal issue than timely and specifically raised below, as such an appellate procedure would be contrary to the line of cases holding: “ ‘ “He must stand or fall upon the position taken in the trial court.” ’ ” Bell v. Sellers, 248 Ga. 424, 426 (1) (283 SE2d 877). Accordingly, the issue presented in this enumeration was not preserved for appellate review. Moreover, no citation is made of the pages of the transcript or record supporting appellant’s factual contentions that a genuine material issue exists as to the amount due and owing on the note. It is well-settled that an appellate court will not cull the record in search of error on behalf of one of the parties. Manderson & Assoc. v. Gore, 193 Ga. App. 723, 733 (8) (389 SE2d 251); accord Benefield v. Benefield, 224 Ga. 208, 209 (5) (160 SE2d 895).

2. We likewise find without merit appellant’s two remaining enumerations of error. Under the attendant circumstances, we find that the record does not raise any genuine issue of material fact that appellant acted in justifiable reliance on any representations allegedly made by appellee in support of its fraud defense and counterclaim.

Appellant made the following admissions in judicio (see generally Shansab v. Homart Dev. Co., 205 Ga. App. 448, 451 (4) (422 SE2d 305) and cases cited therein) in his deposition testimony: negotiations as to contract price primarily were with Spencer (seller) and Adams who was in the real estate business and introduced seller to appellant; appellant’s first contact with appellee, either directly or by phone, was on the day of closing; appellant never personally had an appraisal done but had relied upon appellee (in view of statements contained in the original loan application) to obtain an appraisal which would have to be at least $900,000 to qualify for the loan; appellant never physically inspected the property before closing or looked at the leases of the apartment tenants before his loan was approved; appellant signed the note at closing; appellant arrived at the agreed $900,000 sales price (prior to closing) merely based on representations of property value made to him; appellant was relying on representations made to him by Mr. Adams, Mr. Spencer, and Mr. Wolf (apparently a real estate broker whom appellant concedes he had met only on a few rare occasions and whom he knew to be a secondary person in the transaction); appellant did not attempt to determine who kept the rental records for the building prior to closing; appellant did not inspect the property before he bought it; appellee made no representations to appellant about the condition of the property; appellant never saw the title report that was generated on the property and engaged no one to run an independent title examination on the property; appellant did not ask for a copy of the appraisal prior to closing and admits that at closing he merely examined the first page of a purported appraisal report, and (notwithstanding the amount of money involved) appellant attended closing alone. Additionally, appellant admitted in his deposition that he could not recall exactly what appellee had said to him at closing regarding the value of the property; but, although he cannot remember who said it, appellee represented that the property was worth a great deal more or would be worth a great deal more than it turned out to be. “[A]ny contradictory testimony or statements by appellant, as to these [admitted factual] matters, and for which no reasonable explanation for inconsistencies was given, would have to be construed against [him] pursuant to the rule of Prophecy [Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680)].” Shansab, supra at 451 (4).

Appellee CFBCC owed no legal duty to act as appellant’s legal or financial advisor; there existed no confidential relationship between appellant and appellee. Compare First Union Nat. Bank of Ga. v. Gurley, 208 Ga. App. 647 (1) (431 SE2d 379); Pruett v. Commercial Bank of Ga., 206 Ga. App. 103 (424 SE2d 284). The record reveals nothing more than an arms-length money lending transaction between the parties. “A fiduciary or confidential relationship arises where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith, such as the relationship between partners, principal and agents, etc.” (Citation and punctuation omitted.) First Union, supra at 648. Even assuming appellant had mistakenly reposed trust and confidence in appellee, no confidential relationship was created within the meaning of OCGA §§ 23-2-53; 23-2-58. “ ‘ “The mere fact that one reposes trust and confidence in another does not create a confix dential relationship. Tn the majority of business dealings, opposite parties have trust and confidence in each other’s integrity, but there is no confidential relationship by this alone.’ ” ’ ” (Citations omitted.) Id. at 648-649. Thus, the record reveals no confidential relationship between appellant borrower and appellee lender which would excuse the requirement that appellant exercise ordinary diligence to protect [his] own interest. Id. “ ‘There being no suggestion that the relationship between [appellant and appellee] was anything other than an “arms-length” business relationship, [appellant] was not justified in looking to the [appellee lender] for advice regarding the financial viability of the project, nor was the [lender] under any duty to list for him the various obstacles facing the successful completion of the project.’ ” Id. at 649-650. Thus, for example, there was no duty on the part of appellee to disclose to appellant, even if it knew or should have known, that Spencer was at the same time and place purchasing the property out of bankruptcy from Windy Hill for only $400,000. In this regard, the fact that Spencer was purchasing the property and from whom and under what conditions could easily have been discovered by appellant at the joint closing had he exercised ordinary care to do so; the amount of the sales price of the property ($400,000) to Spencer, assuming arguendo it was not capable of being ascertained by appellant, does not constitute a concealment of a material fact as to the “intrinsic qualities” of the property, within the meaning of American Honda Motor Co. v. Williams & Assoc., 208 Ga. App. 636, 641 (431 SE2d 437).

Although both Salmon v. Pearson & Assoc., 214 Ga. App. 11 (446 SE2d 762) and Copeland v. Home Savings of America, 209 Ga. App. 173, 174 (433 SE2d 327) are factually distinguishable from this case, we find Copeland and First Union, supra, to be more persuasive under the circumstances. Salmon, supra, which concerns reliance on a professional certification, is substantially inapposite and not controlling.

Moreover, the record unequivocally reflects that appellant did not use the ordinary means of information available at his disposal to protect his interest. He made no pre-sale physical inspection of the property (though when the water was turned on only a week after closing it was reported to him that a monumental amount of water leakage was noticed and that water was visibly blowing out of certain apartment windows); he made no demand to see the entire appraisal document shown to him in part at the closing; he made no inspection of the courthouse records to verify the title to the property; and he made no inquiry as to why those associated with the Windy Valley-Spencer sales transaction were present and participating in a joint closing in his very presence. “ ‘ “The law does not afford relief to one who suffers by not using the ordinary means of information, whether the neglect is due to indifference or credulity. ‘When the means of knowledge are at hand and equally available to both parties, and the subject of purchase is alike open to their inspection, if the purchaser does not avail himself of these means he will not be heard to say, in impeachment of the contract of sale, that he was deceived by the vendor’s representations.’ ” ’ ” (Citations omitted.) Copeland, supra at 174-175.

Decided November 1, 1994

Reconsideration denied November 16, 1994

Davidson & Fuller, Stephen P. Fuller, for appellant.

Davis & Walker, Joe G. Davis, Jr., Charles B. Waters, Jr., for appellee.

The record before us is replete with evidence of appellant’s failure to protect his own vital interests in this transaction; the appellate process affords us no latitude to make adjustments for the ill-earned good fortune of the lucky or the heart-rending misfortunes of the unlucky. Floyd S. Pike Elec. Contractors v. Williams, 207 Ga. App. 86, 89 (2e) (427 SE2d 67).

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A94A2523.
    FARMER v. THE STATE.
    (450 SE2d 271)
   Birdsong, Presiding Judge.

Johnny Byron Farmer was convicted of one count of incest, aggravated sodomy and aggravated child molestation, and of five counts of child molestation. The two child victims were his adopted daughter and his stepdaughter, respectively. He appeals enumerating as error insufficiency of the evidence and denial of his motion for directed verdict of acquittal. Held:

Except as hereinafter discussed regarding child molestation charge number eight, at trial each victim testified as to all the elements of the particular charges of which she was the averred victim; a police officer and relatives testified as to statements made by the victims regarding the scope and nature of appellant’s sexual misconduct toward them. The brother of one of the victims testified in partial corroboration that he observed appellant in his sister’s bedroom and that his sister was hiding behind the door with her top off and her hands covering her breasts; a pediatrician testified that she examined the victim, S. W., and found her hymen “completely gone.” On appeal appellant basically contends that for divers reasons the evidence presented by the State at trial lacks in credibility and is insufficient to support his conviction.

As to child molestation charge number eight, the sole child molestation act averred is that appellant did cause the said victim to place her hand upon his penis; however, at trial the victim testified that the accused unbuttoned his pants and placed the victim’s hand inside his trousers, but that the victim immediately jerked her hand away upon feeling appellant’s pubic hair. We conclude that this evidence would support appellant’s conviction of child molestation charge number eight under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). “[U]nder the test announced in DePalma v. State, 225 Ga. 465 (3) (169 SE2d 801) ... no fatal variance between the indictment and the proof exists if the defendant is informed of the charges against him and protected from subsequent prosecutions for the same offense. Assuming a variance existed here, it met the DePalma test: [appellant] was not misled or prejudiced, so any variance was not fatal.” Smith v. State, 210 Ga. App. 634, 636 (2) (d) (437 SE2d 333). Roberson v. State, 187 Ga. App. 485, 487 (370 SE2d 661), where the proof offered established that the crime was committed in “a wholly different manner than that specifically alleged in the indictment,” is not controlling; the child molestation offense at issue was committed in substantially the same manner as specifically averred in the indictment. Further, appellant abandoned any issue of fatal variance by failing to argue or provide citations in his appellate brief to support such a contention. Court of Appeals Rule 15 (c) (2).

On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Further, the proper test when sufficiency of the evidence is challenged by a motion for directed verdict of acquittal is the “reasonable doubt” test of Jackson v. Virginia, supra. Wilburn v. State, 199 Ga. App. 667 (1) (405 SE2d 889). Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which he was convicted. Jackson v. Virginia, supra.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.

Decided November 2, 1994

Reconsideration denied November 16, 1994

Euan L. Stapler, for appellant.

George C. Turner, Jr., District Attorney, Thomas V. Driggers, E. Chandler Barrett, Assistant District Attorneys, for appellee.


author: Johnson, Judge.

text:
    A94A1228.
    POWERS et al. v. LATIMER.
    (450 SE2d 295)
   Johnson, Judge.

Teresa Powers filed suit on her own behalf and on behalf of her children for property damage and personal injuries allegedly suffered as a result of Glenn Latimer’s aircraft crashing into her home. The trial court granted Latimer’s motion for summary judgment, and Powers appeals.

1. Powers contends the trial court erred in holding that her execution of a loan receipt and proof of loss statements to her insurer, and her insurer’s subsequent settlement with and release of Latimer, bar her from maintaining an action against Latimer for property damage. We agree with Powers and reverse. Powers signed a loan receipt which states she received $70,113.35 from her homeowner’s insurance carrier, Cotton States Mutual Insurance Company, which she must repay to the extent she recovers payment from anyone else in connection with the loss. The loan receipt further states Powers agrees that any suit would be prosecuted in her name under the exclusive direction and control of Cotton States. Powers also signed a proof of loss statement swearing to Cotton States that the whole loss and damage to her property totalled $70,113.35. Cotton States then settled the property claim with Latimer’s insurer for $59,596.35 and executed a document in which Cotton States released Latimer and his insurer from all liability for claims arising from the accident. Powers did not sign the release. This suit followed.

“[T]he usual or ordinary form of loan receipt executed by an insured on payment of a loss to him by his insurer but occasioned by a third party tortfeasor, is valid, is not a subrogation agreement, and allows an action to proceed in the name of the insured against the tortfeasor, subject to control to the extent of its interest by the insurer, and further allows the insurer to recover to the extent of its payment out of any amount collected by the insured in such an action. The loan receipt does not amount to an assignment of the claim. . . .” (Citations omitted.) Hall v. Helms, 150 Ga. App. 257 (1) (257 SE2d 349) (1979). Moreover, “[a] loan receipt does not operate as a release or inure to the benefit of the tortfeasor or its insurer. The plaintiff is the owner of a chose in action, and may, if she decides it is to her benefit, accept payment from her insurer as a loan, agreeing to repay it from such recovery as she may achieve by the prosecution of a right of action against the tortfeasor.” (Citation omitted.) Id. at 257 (2).

In his brief, Latimer states he does not disagree with this court’s statement in Hall that a loan receipt does not act as a general release or inure to the benefit of the tortfeasor. However, Latimer argues that the language contained in the loan receipt in the instant case distinguishes it from Hall. Because the Hall opinion does not contain the language of the loan receipt at issue in that case, we found it necessary to retrieve and take judicial notice of the original loan receipt from the Hall record, as we are authorized to do. Our examination of the loan receipt in Hall reveals that it is substantially the same as the one before us now. The language in both receipts provides that the insured agrees to prosecute an action in her own name under the exclusive control and direction of the insurer. As we stated in Hall, the mere fact that the loan receipt gives the insurer the right to direct and control any action against the tortfeasor does not mean the insured has lost her cause of action. Such language in a loan receipt serves only to provide the mechanism through which the insurance company can protect its own interest in any recovery.

Latimer also argues that the cases are distinguishable inasmuch as the Hall opinion made no mention of a “proof of loss” statement and that the proof of loss in the instant case indicates that the insured had been compensated for her loss by the insurer. Although the Hall opinion does not refer to the proof of loss statement, the Hall record does in fact contain a “proof of claim” statement which is similar to the proof of loss statement executed in the instant case and which also indicates the insured had been compensated. Thus, the cases are not distinguishable on that basis. Furthermore, we do not agree with Latimer’s claim that Powers’ proof of loss statement operates as a bar to her suit against the tortfeasor. The proof of loss statement is between Powers and her insurer and contains no language prohibiting Powers from pursuing an action against Latimer. Moreover, Powers, like the insured in Hall, may have had losses which exceeded the amount of coverage. The proof of loss statement may, at most, be considered an admission against Powers’ interests with regard to the amount of damages. We note that in handling the presentation and consideration of such evidence, the danger arises that La-timer might improperly inject insurance into the case; however, there are any number of ways in which the trial court may handle the matter such that this does not occur. In any event, the proof of loss form may not work to bar Powers’ action or justify the grant of summary judgment against her.

The release executed by Cotton States did not effectuate a bar against an action by Powers. The form was signed not by Powers, but by a representative for Cotton States. By signing the document, Cotton States has released Latimer as to any stake it has in Powers’ claim. Because Powers did not assign her cause of action to Cotton States, her rights were not affected by Cotton States’ release of Latimer. However, Powers is not entitled to a double recovery, so any judgment Powers receives against Latimer must be reduced by the amount of Cotton States’ interest in the case. Id. at 258 (2). Accordingly, we hold that Powers’ suit against Latimer for property damage is not barred and the trial court erred in granting summary judgment for Latimer on this issue. We also note that the documents do not affect Powers’ right to bring a personal injury action, because such claims are not assignable. See Govt. Employees Ins. Co. v. Hirsh, 211 Ga. App. 374 (439 SE2d 59) (1993).

2. Powers contends the trial court erred in granting summary judgment to Latimer without addressing her claim for her own physical injuries. Powers claims her hands and knees were injured when she tripped over a fire hose upon returning to the house to retrieve clothing four or five hours after the crash. Negligence cannot create a cause of action unless it is the proximate cause of the injury complained of. Leonardson v. Ga. Power Co., 210 Ga. App. 574, 577 (436 SE2d 690) (1993). Where an intervening act is the proximate cause of the injury, the defendant has a valid defense as a matter of law. Hackel v. Bartell, 207 Ga. App. 563, 564 (1) (428 SE2d 584) (1993). Under the facts of this case, the aircraft crash was not the proximate cause of Powers’ hand and knee injuries as a matter of law.

Powers also claims to have suffered respiratory problems as a result of being doused with aircraft fuel when the plane crashed. Although it is clear from her deposition that Powers sought no medical treatment for the alleged injury, the claim should have been submitted to the jury at least for consideration of nominal damages. The case is remanded to the trial court on that issue.

3. Powers argues the trial court erred in refusing to consider her claim for medical expenses incurred on her minor son Jason’s behalf because she did not pray for such in her complaint. Powers contends the trial court should have deemed the pleadings amended to reflect this claim. We disagree.

It is true that the pleadings may be deemed amended to conform to the evidence presented. Mazur v. Food Giant, 183 Ga. App. 453, 454 (2) (359 SE2d 178) (1987). However, our examination of the record reveals no evidence that Powers incurred any medical expenses as a result of Jason’s medical care. In fact, Powers testified in her deposition that she did not pay any of Jason’s medical expenses. Because no evidence was presented to support the claim, the complaint cannot be deemed amended on that basis. And while Powers could have amended her complaint at any time before the entry of a pre-trial order, see OCGA § 9-11-15 (a), it does not appear that she ever sought to do so. Thus, at the time Latimer’s motion for summary judgment was granted, Powers’ claim for recovery of medical costs incurred by her for medical treatment of her son did not exist. See Allen v. Bergman, 201 Ga. App. 781, 783 (3) (b) (412 SE2d 549) (1991). The trial court did not err in refusing to consider this claim.

Decided November 16, 1994.

Webb & Lindsey, James H. Webb, Jr., Richard P. Lindsey, for appellants.

Greene, Buckley, Jones & McQueen, Frank C. Schenck, for appellee.

4. Powers contends the trial court erred in granting summary judgment for Latimer as to Powers’ daughter Katrina’s claim of emotional distress. Where, as here, a claim alleges negligent infliction of emotional harm, recovery is allowed only where there has been some impact on the plaintiff that results in a physical injury. Richardson v. Hennly, 209 Ga. App. 868, 872 (3) (434 SE2d 772) (1993). It is undisputed that Katrina, who was sitting in a car in the driveway when the accident occurred, suffered no physical injury. Nor was any physical contact with Katrina occasioned by the aircraft crash. Accordingly, the trial court did not err in granting summary judgment to Latimer on this issue.

Judgment affirmed in part, reversed in part and case remanded.

Beasley, P. J., concurs. Andrews, J., concurs in judgment only.


author: McMurray, Presiding Judge.

text:
    A94A2239.
    HALL v. THE STATE.
    (450 SE2d 293)
   McMurray, Presiding Judge.

Defendant Hall appeals his conviction of a felony offense of obstruction of a law enforcement officer (by doing violence to the person of a correctional officer). Held:

“[Defendant] first contends that he was denied a fair and impartial trial because he was required to wear leg irons [and be accompanied by prison guards] throughout the trial. ‘Art. I, Sec. I, Par. XI of the (1983) Georgia Constitution mandates that “(i)n criminal cases, the defendant shall have a public and speedy trial by an impartial jury.” “ ‘(A) defendant being tried for a criminal offense on a plea of not guilty was entitled, at common law, to make his appearance free from all shackles or bonds. This is also the present rule, and the right is recognized as an important component of a fair and impartial trial.’ (Cit.)” (Cit.) “ ‘(O)ne accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on the grounds of official suspicion, indictment, continued custody or other circumstances not adduced as proof at trial.’ (Cit.)” (Cit.) (The accused is) entitled to have a trial free of restraint and “free of partiality created by the use of (shackles) except where special circumstances exist, which in the discretion of the trial judge, dictate added security precautions. (Cit.)” (Cit.)’ Mapp v. State, 197 Ga. App. 7 (397 SE2d 476) (1990). However, ‘ “where there is good and sufficient cause, the court has discretion in requiring a defendant to be handcuffed or shackled for security reasons. (Cits.) Abuse of (that) discretion is the test on appeal where restraining devices have been used in the trial court. (Cit.)” (Cit.)’ Brewer v. State, 199 Ga. App. 710 (2) (405 SE2d 899) (1991).” Reid v. State, 210 Ga. App. 783, 784 (1) (437 SE2d 646).

The question of whether there are appropriate special circumstances such as authorize a trial court to require unusual security precautions which infringe upon the presumption that defendant is innocent requires detailed, demonstrable evidence set forth in the record. Martinez v. State, 189 Ga. App. 69, 72 (2) (375 SE2d 123). At the hearing on defendant’s motion to be tried without the additional security precautions of leg irons and correctional officers in the courtroom, the State presented only one witness, a former administrative assistant at Roger’s Correctional Institute where the incident giving rise to the offense at issue occurred. This witness testified that defendant was serving a sentence for armed robbery, had a security classification of “high max,” and that based on this classification and the then pending charge which is now on appeal, she felt defendant would be a security risk in the courtroom. On cross-examination it became apparent that subsequent to the incident at Roger’s Correctional Institute, defendant had been transferred to the Georgia State Prison, and the witness stated that the records to which she was referring indicated that after his transfer to Georgia State Prison, defendant had flooded his cell and had “projected liquid items, hot liquid items. . . .”

As to the incidents at Georgia State Prison, it is clear that the testimony was entirely hearsay and thus without probative value. Harden v. State, 210 Ga. App. 673, 675 (1) (436 SE2d 756). The bare fact of defendant’s armed robbery conviction does not provide the exceptional circumstances authorizing the trial judge to put defendant on his trial in leg irons and accompanied by correctional officers. Reid v. State, 210 Ga. App. 783, 785 (1), supra. The general security classification assigned to defendant reflects the opinion held of defendant by law enforcement officers and is not equivalent to reference to specific actions of defendant which might justify restraint. Pace v. State, 212 Ga. App. 489, 490 (1) (442 SE2d 307). Also, it is implicit from the holding in Pace v. State, supra, that the facts of the offense for which defendant was on trial could not provide the basis for extraordinary restraint of defendant. Furthermore, the sole witness conceded that defendant had made a number of prior court appearances during which he had caused no problem whatsoever and had demeaned himself as a gentleman with proper respect for the trial court. The circumstances presented in the record of the case sub judice do not reveal specific actions of defendant justifying the use of restraints. The trial court erred in directing that defendant be required to wear leg irons throughout the trial and also providing for the presence of correctional officers in the courtroom during trial. As we cannot conclude that the error was harmless, defendant’s conviction must be reversed and the case remanded for a new trial.

Decided November 16, 1994.

Joseph D. McGovern, for appellant.

Dupont K. Cheney, District Attorney, J. Stephen Archer, Assistant District Attorney, for appellee.

Judgment reversed.

Pope, C. J., and Smith, J., concur.


text:
    A94A2825.
    RYNERSON v. SCHAT.
    (449 SE2d 901)
   Johnson, Judge.

James Rynerson appeals the trial court’s denial of his motions to intervene, to vacate order authorizing a levy and to set aside a judicial sale of a 1982 De Lorean automobile.

The facts underlying the action in which Rynerson seeks to intervene are as follows: Erick Schat obtained a judgment against James H. Southard, Cynthia Southard and Holman International, Inc. in California, which was subsequently domesticated by consent in Georgia. A writ of fi. fa. in the principal sum of $33,000 was issued in April 1993.

James Rynerson had placed his 1982 De Lorean automobile with the Southards and Holman International for them to find a purchaser for it. Rynerson claims he asked that the car be returned on several occasions but his requests were refused. Rynerson hired counsel and a private investigator whose efforts to locate the car were unsuccessful. The attorney for judgment creditor Schat, however, apparently had no trouble finding the vehicle and appeared along with a sheriff to seize the vehicle on July 28, 1993. Initially James Southard told them that the car had been placed on consignment with him and was not his property. Shortly thereafter, when it appeared that the sheriff was about to seize a Honda belonging to his wife, Southard told counsel and the sheriff that the De Lorean did belong to him, that the paperwork associated with a pending sale had not really been completed. The sheriff levied on the car and advertised for sale in accordance with OCGA § 9-13-140 (a). Just prior to the September 7, 1993 sale, Southard notified the court that the sale should not go forward because the sale of the car to a third party had, in fact, been consummated at the time of the levy. The sale was postponed and a hearing scheduled for November 3, 1993. Publication of a second advertisement of sale began running. Schat’s counsel instructed the representative of the alleged third-party purchaser to obtain a signed affidavit, or produce some other indicia of ownership prior to the hearing. No documentation was produced and the trial court refused to stop the scheduled December 6 sale.

Despite the publication of notices of sale, Rynerson and his counsel deny any knowledge of either the levy or the pending sale. According to an affidavit filed by Rynerson’s attorney, they first learned of the sale on December 15, 1993. On January 12, 1994, more than a month after the sheriff’s sale, more than five-and-one-half months after the initial levy, and in a subsequent term of court, Rynerson filed his motions to intervene, to vacate order authorizing a levy and to set aside a judicial sale. The trial court denied the motions.

In asserting that the trial court erred in denying the motions, Rynerson relies on Sta-Power Indus. v. Avant, 134 Ga. App. 952, 958 (3) (216 SE2d 897) (1975), for the proposition that parties may intervene after judgment has been entered. This correct statement of the law ignores that post-judgment intervention “may be allowed after final judgment to preserve some right which cannot otherwise be protected.” Id. at 959 (3). Recently, this court had the opportunity to reconsider the issue of post-judgment intervention. In Zinser v. Tormenta, S.A., 213 Ga. App. 824, 825 (1) (446 SE2d 249) (1994), we held: “Intervention after judgment is not usually permitted, and to justify it requires a strong showing. The decisions whether intervention is timely and the showing sufficient are matters within the sound discretion of the trial court and will not be controlled absent an abuse of discretion. If the one who seeks to intervene will still be left with his right to pursue his own independent remedy against the parties, regardless of the outcome of the pending case, then he has no interest that needs protecting by intervention and should not be allowed to intervene over objection.” (Citations and punctuation omitted; emphasis supplied.)

Decided November 16, 1994.

Branch, Pike & Ganz, Barry G. Roberts, for appellant.

Bobbitt & Associates, Phillip L. Bobbitt, Daniel L. Camp, for appellee.

Rynerson has failed to make the required showing. OCGA § 9-11-24 (a) permits intervention upon timely application. His application was not timely. The motion to set aside was filed in a subsequent term of court and failed to make a showing of a non-amendable defect on the face of the pleadings or of “fraud, accident, or mistake or the acts of an adverse party unmixed with the negligence or fault of the movant.” See Allen v. Allen, 218 Ga. 364, 365 (1) (127 SE2d 902) (1962); Wiley v. Wiley, 233 Ga. 824, 826 (2) (213 SE2d 682) (1975); OCGA § 9-11-60 (d) (2), (3). Without intimating as to the viability of any of his claims, Rynerson still has independent remedies available including possible claims of conversion, wrongful levy and unjust enrichment. Therefore, we do not conclude that the trial court abused its discretion in denying the motions to intervene, to vacate order authorizing a levy and to set aside a judicial sale.

Judgment affirmed.

Beasley, P. J., and Andrews, J., concur.


text:
    A95A0198.
    UNDERWOOD v. DUNN.
    (451 SE2d 129)
   McMurray, Presiding Judge.

Mary C. Dunn (plaintiff) filed an action against Michael J. Prewett and Irene Underwood (defendants), alleging defendants did not carry out their duties as corporate officers and directors of her employer, Prewett Industries, Inc. (“Prewett Industries”), by failing to maintain Prewett Industries’ workers’ compensation insurance coverage. Plaintiff alleges that Prewett Industries is now insolvent and that she is unable to recover a workers’ compensation award entered in her favor because of defendants’ negligent omission.

Defendants filed separate answers, denying the material allegations of the complaint. The trial court struck defendant Michael J. Prewett’s answer for failure to respond to certain discovery requests and entered judgment against him as to the issue of liability. The trial court reserved ruling on the issue of damages and later conducted a bench trial as to plaintiff’s claim against defendant Underwood. The bench trial resulted in a plaintiff’s verdict on the issue of liability and the entry of an order, reserving a ruling on the issue of damages. Defendant Underwood filed this direct appeal. Held:

Decided November 17, 1994.

Buck, Crowley, Leverett & Johnson, J. Wayne Crowley, for appellant.

Lawton Miller, Jr., for appellee.

“ ‘The order sought to be appealed is not final within the meaning of OCGA § 5-6-34 (a) because the case remains pending below. Because the procedures set forth in OCGA § 5-6-34 (b) have not been followed, the appeal must accordingly be dismissed.’ Coley Fertilizer Co. v. Gold Kist, Inc., 174 Ga. App. 471 (330 SE2d 597). Nor has the trial court directed the entry of final judgment as to [defendant Underwood] upon an express determination that there is no just reason for delay pursuant to OCGA § 9-11-54 (b). Johnson v. Hosp. Corp. of Am[erica], 192 Ga. App. 628, 629 (385 SE2d 731). The appeal is premature and must be dismissed.” Turner v. Buhrow, 205 Ga. App. 444 (422 SE2d 678).

Appeal dismissed.

Andrews and Blackburn, JJ., concur.


author: Andrews, Judge.

text:
    A94A1521.
    PAYNE v. CARSON et al.
    (450 SE2d 273)
   Andrews, Judge.

Richard and Darlene Carson commenced this trespass and nuisance action against Lecil Payne and the owner of a shopping center, seeking damages for the failure to control runoff surface water that flowed from the shopping center parking lot, across Payne’s property, and eventually onto the Carsons’ property. Following trial in the matter, the jury awarded the Carsons $10,000 compensatory damages and $50,000 punitive damages against Payne, and awarded Payne $10,000 compensatory damages and $30,000 punitive damages on his third-party complaint against the shopping center.

The jury awarded nothing to the co-plaintiff partnership that owned property situated between Payne’s property and the Carsons’ property. In an earlier appeal brought by the nominee of that partnership, this court affirmed. Dunn v. Payne, 205 Ga. App. 440 (422 SE2d 291) (1992). The instant appeal was delayed by Payne’s death following the trial, and is prosecuted by the executrix of his estate.

The evidence showed that in 1979 a shopping center was built on the property adjacent to that owned and lived on by the appellant. Payne allowed the builders to deposit onto his property some loose dirt that was left over from the construction project, but otherwise has not altered his property at any time pertinent to this case. The development of the shopping center resulted in an increased runoff of surface water and siltation, first onto Payne’s property and then onto other property farther down the line. This increase in the runoff of surface water was the subject matter of earlier litigation between the Carsons’ predecessor in title, and Payne and the shopping center, resulting in a 1985 judgment pursuant to which (1) the shopping center was to install a drain system, (2) Payne was to give the shopping center an easement on his property so that it could construct the drain system, and (3) following installation of the drain system, Payne was to maintain vegetation on his property to prevent soil erosion.

At trial in the instant case, Payne presented evidence that he made unsuccessful efforts to control erosion by planting grass, pine trees, and spreading straw. However, it was uncontroverted that he never granted the shopping center an easement on his property, and the shopping center did nothing to control the runoff of surface water.

1. Payne contends that the trial court erred in failing to direct a verdict in his favor, on the grounds that he had fully complied with the judgment entered in the previous litigation by attempting to maintain vegetation on the affected area of his property, and thus had no further duty to control the runoff of surface water created by the shopping center. In this regard, he claims that the judgment itself created an easement on his property that authorized the shopping center to install a drain system on his property.

However, the judgment in that previous litigation actually ordered that Payne “be immediately required to give [the shopping center] an easement” for installation of a drain system. The only reasonable construction of that direction is that an affirmative act of granting an easement was required of Payne.

“ ‘When a surface-water invasion has taken piace, whether it amounts to a compensable tort is a question of fact for the jury. Nature, gravity, velocity, and relativity, as well as acts of the alleged tortfeasor, are matters that must be considered in determining whether a surface-water invasion constitutes a trespass for which damages are recoverable.’ [Cit.]” Dunn v. Payne, supra at 441. In the instant case, by virtue of the judgment entered in the previous litigation, Payne was obligated to take certain measures to control the runoff of surface water, and his failure to comply with that judgment could authorize finding the surface water invasion in this case to be a compensable tort. A jury question existed as to Payne’s degree of compliance and any resultant liability, and the trial court thus properly denied Payne’s motion for directed verdict and motion for new trial based on the general grounds.

However, we agree with Payne that the evidence did not support the assessment of punitive damages against him. To authorize punitive damages under OCGA § 51-12-5, “there must be evidence of wilful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences. [Cits.]” Gen. Refractories Co. v. Rogers, 240 Ga. 228 (239 SE2d 795) (1977). Here, (1) where the shopping center was responsible for the actual increase in the runoff of surface water, (2) where Payne suffered the same damage to his property as the Car-sons because of the surface water, (3) where it appears that the shopping center, which faced the financial burden of installing a drain system, at best only passively pursued the necessary easement from Payne, and (4) where Payne’s fault was that of inaction, the evidence did not warrant the imposition of punitive damages against Payne.

Decided November 3, 1994

Reconsiderations denied November 18, 1994

Glyndon C. Pruitt, for appellant.

T. Stanley Sunderland, for appellees.

2. The appellant also contends that the trial court erred in allowing the jury to view the property in question, because of the inability to distinguish between damage to the property that occurred during the time period pertinent to this case (1986 to 1990), and any pre-existing damage.

“[T]he decision to allow a jury to view a scene is discretionary with the trial court. . . . [Cit.]” Parks v. Howard, 197 Ga. App. 405, 406 (3) (398 SE2d 308) (1990). In the instant case, the jury was informed that they were to determine only the injury to the property that occurred between 1986 and 1990. The trial court also admitted into evidence a series of photographs of the property taken between 1986 and 1990, which the jury could use for comparison. Under these circumstances, the trial court did not abuse its discretion in allowing the jury to view the subject property.

3. We have considered the appellant’s remaining enumerations of error and find them to be without merit.

Judgment affirmed in part and reversed in part.

Beasley, P. J., and Johnson, J., concur.


text:
    A94A1661.
    MORITZ et al. v. ORKIN EXTERMINATING COMPANY, INC.
    (450 SE2d 233)
   McMurray, Presiding Judge.

This is an action for damages predicated on several theories involving the alleged negligent inspection and application of pesticides to the home of plaintiffs Linda and Todd Moritz by employees of defendant Orkin Exterminating Company, Inc. on November 17, 1992. Plaintiffs filed a lawsuit on February 11, 1993 and defendant moved to dismiss that complaint for failure to attach an expert’s affidavit pursuant to OCGA § 9-11-9.1. On April 6, 1993, plaintiffs voluntarily dismissed that original lawsuit.

A second complaint was filed on July 8, 1993, initiating the case sub judice and containing substantially the same allegations as the earlier complaint. The complaint filed to initiate this case does have attached the affidavits of two experts, a medical doctor and a certified pest control operator. Defendant moved to dismiss the present action maintaining that the absence of any expert affidavit attached to the complaint in the earlier action cannot be “cured” by the procedure followed by plaintiffs. Defendant’s motion to dismiss was granted and plaintiffs appeal. Held:

OCGA § 9-11-9.1 (e) provides a general rule that “if a plaintiff fails to file an affidavit as required by this Code section contemporaneously with a complaint alleging professional malpractice and the defendant raises the failure to file such an affidavit in its initial responsive pleading, such complaint is subject to dismissal for failure to state a claim and cannot be cured by amendment pursuant to Code Section 9-11-15. . . .” OCGA § 9-11-9.1 (e). Exceptions to this general rule where the complaint is filed in the last ten days of the period of limitation or where the plaintiff had an affidavit available prior to filing a complaint but failed to file it due to a mistake are not applicable in the case sub judice.

While defendant concedes that OCGA § 9-11-9.1 (e) does not expressly prohibit the procedure followed by plaintiffs in this action, it contends that the general rule quoted above should be read as prohibiting plaintiffs from “curing” defective actions except in the circumstances specifically enumerated in the statute. Otherwise, argues defendant, a plaintiff may simply dismiss a defective lawsuit and file the same lawsuit with an expert affidavit in order to sidestep the prohibition against “curing” such defects. Indeed, this is an apt description of what plaintiffs have accomplished, dismissing an action which was arguably defective due to the absence of an affidavit and then refiling with affidavits attached to the complaint, all within the period of the applicable statute of limitation.

While we recognize that OCGA § 9-11-9.1 embodies specific policy goals, the expansive construction of OCGA § 9-11-9.1 (e) urged by defendant would render meaningless the following paragraph, OCGA § 9-11-9.1 (f). One aid in fulfilling our duty to construe statutes as intended by the legislature is to give meaning to each part of the statute and to avoid constructions which render a portion of the statute mere surplusage. State of Ga. v. C. S. B., 250 Ga. 261 (297 SE2d 260); Undercofler v. Colonial Pipeline Co., 114 Ga. App. 739 (152 SE2d 768). Consequently, we decline to find any implied prohibition in OCGA § 9-11-9.1 (e) against the procedure at issue. Contrary to defendant’s assertions, this holding does not render useless the prohibition against “curing” defects by amendments contained in OCGA § 9-11-9.1 (e). Instead, it should be recognized that OCGA § 9-11-9.1 (e) contains a meaningful restriction on the application of OCGA § 9-11-15 just as OCGA § 9-11-9.1 (f) limits the applicability of OCGA § 9-2-61, however, neither of these provisions are applicable under the circumstances in the case sub judice.

Decided October 7, 1994

Reconsideration denied November 18, 1994

Philip M. Casto, Christopher J. McFadden, for appellants.

Decker & Hallman, Richard P. Decker, W. Winston Briggs, for appellee.

In Glaser v. Meck, 258 Ga. 468 (2) (369 SE2d 912), the Supreme Court acknowledged the viability of the procedure used by plaintiffs in the case sub judice, and while that statement may appear to be dicta we must also consider the import of subsequent references to it in such cases as Cheeley v. Henderson, 261 Ga. 498, n. 1 (405 SE2d 865) (overruled on other grounds, Hewett v. Kalish, 264 Ga. 183, 186 (1) (442 SE2d 233)), and Patterson v. Douglas Women’s Center, P. C., 258 Ga. 803, n. 1 (374 SE2d 737). Defendant’s reliance upon Jones v. Bates, 261 Ga. 240 (403 SE2d 804) is misplaced since that case is governed by OCGA § 9-11-9.1 (f), which is inapplicable to the facts of the case sub judice. The grant of defendant’s motion to dismiss was reversible error.

Judgment reversed.

Pope, C. J., and Smith, J., concur.


text:
    A94A1044.
    ORKIN EXTERMINATING COMPANY, INC. v. CARDER et al.
    (450 SE2d 217)
   Andrews, Judge.

We granted Orkin Exterminating Company’s application for interlocutory appeal to review the trial court’s denial of its motion to dismiss arising out of the following facts.

On January 25, 1993, Edward and Amanda Carder filed an action against Orkin for personal injuries which arose from the allegedly negligent application of pesticides by Orkin at Edward Carder’s place of employment. No expert affidavit was filed with the complaint as required by OCGA § 9-11-9.1 in suits alleging professional malpractice. See Colston v. Fred’s Pest Control, 210 Ga. App. 362 (436 SE2d 23) (1993); see also Harrell v. Lusk, 263 Ga. 895 (439 SE2d 896) (1994); OCGA § 43-45-24. The complaint alleged that Orkin had provided pest control services to Carder’s place of employment from August 1989 until October 1992 and stated that his doctors did not confirm that his medical problems were caused by pesticide poisoning until October 1992.

In its answer, Orkin raised the failure to file the appropriate malpractice affidavit as a defense. Orkin filed a motion to dismiss the complaint based on Carder’s failure to comply with OCGA § 9-11-9.1 (which is not included in the record before us), and on March 16, 1993, the Carders filed a voluntary dismissal of their complaint.

On May 5, 1993, the Carders refiled the same action against Orkin. With the refiled complaint, the Carders filed two professional malpractice affidavits, one of a pest control expert and one of a medical doctor. In its answer, Orkin again raised the failure to comply with OCGA § 9-11-9.1.

On June 4, 1993, Orkin filed a motion to dismiss the Carders’ refiled complaint based on their alleged failure to comply with OCGA § 9-11-9.1. Orkin argued that the statute does not permit plaintiffs to amend a defective action within the statute of limitation by dismissing the complaint and refiling a new complaint with the appropriate affidavits. In response, the Carders contended that OCGA § 9-11-9.1 allows plaintiffs to dismiss a professional negligence complaint which fails to comply with the affidavit requirement and refile the same complaint with the appropriate expert affidavit, unless the refiled action is barred by the statute of limitation.

After a hearing, the trial court denied Orkin’s motion to dismiss. In its order, the court concluded that it was undisputed that the relevant statute of limitation had not expired; that OCGA § 9-11-9.1 does not prohibit plaintiffs from dismissing an action originally filed without professional malpractice affidavits and refiling that action with such affidavits within the statutory period allowed; and that the two expert affidavits which the Carders filed met the requirements of OCGA § 9-11-9.1. From that order, Orkin filed its interlocutory application, which we granted.

In its sole enumeration of error, Orkin argues that the trial court erred in failing to grant its motion to dismiss the Carders’ refiled complaint. Orkin contends that OCGA § 9-11-9.1 prohibits plaintiffs from curing by amendment their initial failure to file an expert affidavit contemporaneously with the professional malpractice action and that OCGA § 9-11-9.1 prohibits plaintiffs from dismissing the complaint and refiling it later, within the statute of limitation, with the appropriate affidavit. Citing Jones v. Bates, 261 Ga. 240 (403 SE2d 804) (1991), Orkin argues that, even within the applicable statute of limitation period, unless the circumstances of OCGA § 9-11-9.1 (e) apply, the filing of the affidavit must be contemporaneous with the complaint.

Decided September 7, 1994

Reconsideration denied November 9, 1994

Decker & Hallman, Richard P. Decker, W. Winston Briggs, for appellant.

Gleaton, Scofield, Egan & Jones, W. Seaborn Jones, for appellees.

The Carders argue that if Orkin’s argument were accepted, OCGA § 9-11-9.1 (f) would be superfluous. Citing Glaser v. Meck, 258 Ga. 468 (369 SE2d 912) (1988), they contend that the purpose behind the requirement of OCGA § 9-11-12 (b) that the defense of insufficiency of affidavits be asserted in the initial responsive pleadings is to allow plaintiffs a chance at amending defective affidavits within the statute of limitation.

This court has recently decided the specific issue presented in this case adversely to Orkin. See Moritz v. Orkin Exterminating Co., 215 Ga. App. 255 (_ SE2d _) (1994). Accordingly, for the reasons discussed in Moritz, the trial court properly denied Orkin’s motion to dismiss.

We note further that the Carders’ renewal suit was an action de novo. Granite State Ins. Co. v. Nord Bitumi U. S., 262 Ga. 502 (422 SE2d 191) (1992). As such, the procedural prerequisites of filing had to be met anew. Hobbs v. Arthur, 264 Ga. 359 (444 SE2d 322) (1994). “Defenses which are raised in the renewal action will be adjudicated only with respect to that which occurred subsequent to refiling. [Cits.]” Id. at 360. As in Hobbs, the Carders’ first suit was not void but merely voidable, and their renewal suit was free of the defect complained of by Orkin.

Judgment affirmed.

Beasley, P. J., and Johnson, J., concur.


author: Pope, Chief Judge.

text:
    A94A1219.
    PINEHURST BAPTIST CHURCH, INC. v. MURRAY et al.
    (450 SE2d 307)
   Pope, Chief Judge.

Defendant Pinehurst Baptist Church, Inc. appeals the trial court’s order denying its motion to open default and granting plaintiff a default judgment as to the issue of liability only.

Plaintiff Marilyn Murray, individually and as natural guardian of her minor son, Jimmie L. Murray, Jr., filed suit against defendant on May 11, 1993, alleging that her son was injured when he fell from a jungle gym located on the playground of the day-care center operated by defendant. The complaint further alleged that defendant was negligent in having an activity on the premises that was not suitable for four-year-old children and in not exercising proper supervision over the children while they were playing. The complaint was served on May 14, 1993.

On the date following service, defendant’s Pastor, Tony R. Dickerson, brought the suit papers to defendant’s local insurance agent, who forwarded them to the insurance carrier. On June 4, 1993, plaintiff’s attorney agreed to give the insurance carrier 60 days from June 4 to answer the complaint. No answer was filed within the 60-day extension period, but direct settlement negotiations between plaintiff and defendant’s insurance carrier did take place during this time. On October 18, 1993, defendant’s insurance carrier wrote plaintiff’s counsel to ask whether the carrier should retain an attorney to file an answer on defendant’s behalf. By letter dated October 25, 1993, plaintiff’s attorney advised the insurance carrier that time to answer had expired on August 3, 1993. On October 27, 1993, plaintiff’s attorney informed the carrier that plaintiff would take no action as to the default for 30 days, in order to allow the carrier to evaluate plaintiff’s settlement proposal. On November 24, 1993, the carrier again was assured that no action on the default would be taken before December 10, 1993, in order to allow for further evaluation of the settlement proposal. By letter dated December 9, 1993, the insurance carrier received another 14-day extension to consider plaintiff’s settlement proposal and was again put on notice that such an extension was not an extension of the time in which defendant had to file its answer, which had expired August 3, 1993.

Defendant’s pastor states under oath that defendant did not learn that the case was considered in default until December 9, 1993, and that prior to that date defendant was under the belief that its insurance carrier had hired an attorney and made sure that defensive pleadings were timely filed. Moreover, Pastor Dickerson states under oath that he contacted the insurance carrier’s local agent on five occasions to inquire about the case and was assured that nothing else was required of him or defendant.

On December 10, 1993, the first day after defendant learned of the default, it filed a verified motion to open default along with an affidavit from Pastor Dickerson in support of the motion. The affidavit incorporated by reference defendant’s proposed answer and defenses. Plaintiff filed a request for entry of a default judgment as to liability only on December 15, 1993. In its order of December 21, 1993, the trial court denied defendant’s motion to open default and granted plaintiff’s request for entry of a default judgment as to liability only. By order dated December 27, 1993, the trial court certified for immediate review its December 21, 1993 order. We granted defendant’s application for interlocutory appeal and now reverse the trial court’s ruling.

1. “In cases such as this, no two are alike and each must stand on its own merits. The facts in each case are different and you must look at each in the light of the facts peculiar to that particular case.” Cobb County Fair Assn. v. Boyle, 143 Ga. App. 754, 756 (240 SE2d 136) (1977). “Under OCGA § 9-11-55 (b), ‘a prejudgment default (may) be opened on one of three grounds if four conditions are met. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case; the four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense. (Cits.)’ Muscogee Realty Dev. Corp. v. Jefferson Co., 252 Ga. 400, 401 (314 SE2d 199) (1984). (Emphasis supplied.) ‘This court has previously held that the “showing” required by this Code section to be made “under oath” includes the showing of a “meritorious defense.” ’ Ragan v. Smith, 188 Ga. App. 770, 772 (374 SE2d 559) (1988).” Grayson & Hollingsworth, Inc. v. C. Henning Studios, 194 Ga. App. 531, 532 (391 SE2d 8) (1990).

Defendant argues that when its motion to open default is considered in combination with Pastor Dickerson’s affidavit and defendant’s proposed answer and defenses, which were attached to and specifically referred to in the affidavit, the requirement that a meritorious defense be shown under oath is met. We agree. “Ah ‘affidavit framed under th[e] rule must be very full and explicit . . .’ Global Assoc. v. Pan American Communications, 163 Ga. App. 274, 275 (1) (293 SE2d 481) (1982). However, there is no requirement that the affidavit contain in great detail the factual basis of the proposed defense.” Cohutta Mills v. Hawthorne Indus., 179 Ga. App. 815, 816 (348 SE2d 91) (1986). Although Pastor Dickerson’s affidavit did not disclose the factual nature of defendant’s defenses to the specific allegations of the complaint, paragraph six of the affidavit did specifically refer to defendant’s proposed answer and defenses to the complaint, which were attached to the affidavit. Consequently, the proposed answer and defenses are incorporated by reference into defendant’s verified motion to open default. See American Liberty Ins. Co. v. Sanders, 120 Ga. App. 202 (170 SE2d 249) (1969), rev’d on other grounds, 225 Ga. 796 (171 SE2d 539) (1969).

In its proposed answer, defendant asserts that at the time of the incident in issue, the equipment from which Jimmie Murray fell was not inherently dangerous and that defendant had no knowledge that said equipment could be dangerous. Additionally, defendant asserts that it was not negligent and that there was adequate supervision on the playground at the time of the incident. These assertions are sufficient to meet the requirement that a meritorious defense be explicitly stated under oath. See Mars, Inc. v. Moore, 207 Ga. App. 912, 913 (429 SE2d 299) (1993); Cohutta Mills v. Hawthorne Indus., 179 Ga. App. at 816. Therefore, we find that the trial court erred when it concluded that defendant had not shown the existence of a meritorious defense sufficiently. We also find that the trial court’s reliance on C. W. Matthews Contracting Co. v. Walker, 197 Ga. App. 345 (398 SE2d 297) (1990), concluding that it had no discretion to open default, was not well founded as the movant in Matthews did not set forth any facts in its affidavit relating to its defenses and the movant’s unverified answer “merely contained general denials of the allegations of the . . . complaint. ...” Id. at 346.

2. Having found that defendant complied with the four conditions which would authorize the trial court to exercise its discretion in opening default under OCGA § 9-11-55 (b), we must now consider whether defendant’s failure to file a timely answer was the result of excusable neglect. We find that it was. “[T]he question of whether to open a default on one of the three grounds noted above rests within the discretion of the trial judge.” Muscogee Realty Dev. Corp. v. Jefferson Co., 252 Ga. at 401-402. “However, here as in Sears, Roebuck & Co. v. Ramey, 170 Ga. App. 873 (318 SE2d 740) (1984); American Erectors v. Hanie, 157 Ga. App. 687 (1) (278 SE2d 196) (1981); and Cobb County Fair Assn. v. Boyle, 143 Ga. App. 754, 756 (240 SE2d 136) (1977), ‘ “there was good cause for defendant to believe that the suit was being defended by [its] insurance company.” ’ ” Powell v. Eskins, 193 Ga. App. 144, 145 (387 SE2d 389) (1989). Pastor Dickerson’s affidavit, which was not contested during the hearing on the motion to open default, specifically states that all suit papers were turned over to its local insurance agent within one day of their service upon defendant. Additional documentation also was turned over to this agent, and on at least five occasions Pastor Dickerson contacted the agent and was assured that nothing else was required of him or defendant.

It is clear, from the facts of this case, that defendant relied upon its insurance carrier to select counsel and to make sure that defensive pleadings were timely filed. Any neglect by defendant in failing to follow the progress of the case was, therefore, excusable. See Powell v. Eskins, 193 Ga. App. at 145. This is especially true, in light of the fact that neither defendant nor its pastor had ever been sued before and that defendant filed its motion to open default within one day of learning of the default. “ ‘The law should not blindly impose standards which require individuals, in the conduct of their daily business, to distrust the parties with whom they deal. Likewise, a litigant should not unnecessarily be forced into default as a consequence of having reasonably relied upon the word of his fellow, particularly when no innocent party will suffer if default is opened.’ ” Sagnibene v. Budget Rent-A-Car Systems, 209 Ga. App. 44, 46 (432 SE2d 639) (1993). In this case we do not believe that plaintiff will be unduly prejudiced by the opening of defendant’s default and subsequent trial of the matter on the merits. “Moreover, the law favors reaching the merits of disputes.” Powell v. Eskins, 193 Ga. App. at 146; see Houston v. Lowes of Savannah, 136 Ga. App. 781, 785 (2) (222 SE2d 209) (1975).

Decided November 18, 1994.

Self, Mullins, Robinson & Marchetti, Richard A. Marchetti, for appellant.

Charles A. Gower, G. William Snipes, for appellees.

Since the evidence demanded a finding of excusable neglect, the trial court abused its discretion in refusing to grant defendant’s motion to open default. It follows that the trial court also erred in subsequently granting plaintiff’s request for entry of default judgment.

Judgment reversed.

McMurray, P. J., and Smith, J., concur.


text:
    A94A2208.
    SNELLING v. THE STATE.
    (450 SE2d 299)
   McMurray, Presiding Judge.

Defendant William Owen Snelling, a/k/a Gary Lewis Snelling, was tried before a jury and found guilty of four counts of armed robbery. The evidence adduced below showed that on three separate occasions, defendant used a pistol to take cash and credit cards from employees of certain fast food restaurants. His motion for new trial was denied and defendant appeals from the judgment of conviction and sentences entered on the jury’s verdicts. Held:

1. In his first two enumerations, defendant contends the trial court erred in “[r]efusing to [a]dmit Defense’s Independent Lineup” and in sustaining the State’s “improper objection” thereto.

With regard to Count 4, the State called Ayanna Clarke, who “identified the Defendant as the man who robbed the [Kentucky Fried Chicken] store.” This testimony was supported with proof that she had identified defendant in a photographic line-up shown to her by the police. During cross-examination of Ayanna Clarke, defendant attempted to discredit her in-court identification of him with proof that she had selected another suspect as the culprit from a similar line-up created by the defense. This defense version of the line-up used photocopies of the same pictures shown to Ayanna Clarke by the police, but arranged in a different order. The State’s attorney interposed the following objection, based upon the “assumption is that [defense counsel] is going to ask Ms. Clarke now to identify the Defendant from this line up and, Your Honor, a Xeroxed picture is not the same as a good photograph. The Court can compare the quality of the Xerox to the quality of the photographs and we would object to an identification based on a Xeroxed picture.” Defense counsel explained that she did not intend to ask Ayanna Clarke to identify defendant based upon these photocopied photographs; rather, the defense intended to show that “Ms. Ayanna [Clarke] had looked at this [particular document] and she picked out the same number, the same location that she had picked out in [the police photographic] line up; however, it’s not the same photograph [. . . and] even she will look at those and say[,] no, that is not the same person that she’s identified on two different occasions.” Accordingly, the defense submitted that the document was admissible as an original, with any discrepancy in the quality of the reproduction going to its weight. The State’s attorney rejoined that “it is inappropriate to give a witness copies of photographs and, in fact, these are probably copies of copies that are clearly substandard.” Out of the presence of the jury, Ms. Clarke recognized the images depicted in defendant’s exhibit as the same pictures as from State’s Exhibit 1 but “not in the same order.”

The trial court ruled that the images as reproduced in the defense exhibit “are not similar enough to come anywhere close to being a valid basis of comparison^ and concluded that it was not relevant because . . . the] Xerographic process that the pictures went through have changed the skin tone, they’ve changed the facial features, they’ve changed the shadows that appear on the original photo.” In response to the State’s query whether there would be any reference to the misidentification made from this line-up, the court further ruled that the defense “cannot go into it because that document has no valid basis to be a line up comparison and, as such, can be given no weight and credibility by the jury. ...”

(a) “The right of a thorough and sifting cross-examination shall belong to every party as to the witnesses called against him.” OCGA § 24-9-64. Cross-examination is a vital component of the constitutionally protected right of the accused to confront the witnesses against him. Ralph v. State, 124 Ga. 81 (1) (52 SE 298). “ ‘Cross-examination of the witness of an adversary is a substantial right, the preservation of which is essential to a proper administration of justice, “and extends to all matters within the knowledge of the witness, the disclosure of which is material to the controversy,” and it is error to deny or abridge this right.’ [Cit.]” McGinty v. State, 59 Ga. App. 675, 679 (2 SE2d 134). “The purpose of cross-examination is to provide a searching test of the intelligence, memory, accuracy, and veracity of the witnesses, and it is better for cross-examination to be too free than too much restricted.” Ledford v. State, 89 Ga. App. 683, 684 (1), 685 (80 SE2d 828). “Wherever the purpose is to impeach or discredit the witness, great latitude should be allowed by the court in cross examinations.” Mitchell v. State of Ga., 71 Ga. 128, 129 (hn. 6).

In the case sub judice, we have examined the document from which Ayanna Clarke identified someone other than defendant as the robber. Without question, this document is not as precisely imaged as the photographs depicted in State’s Exhibit 1. However, there is no contention that defendant was not depicted in the defense line-up presented to Ayanna Clarke. Nor is it contended that, contrary to Ayanna Clarke’s testimony identifying them as the same pictures as were in the police photographic line-up, this photocopied document does not depict the same six photographs. Accordingly, the defense document accurately represented what Ayanna Clarke previously examined and was not excludable as secondary evidence for being a photocopy of an original. Montgomery v. State of Ga., 154 Ga. App. 311 (268 SE2d 723). See generally Franklin v. State of Ga., 69 Ga. 36, 42 (1), 43.

(b) We are mindful of “the rule that ‘the trial judge has a discretion to control the right of cross-examination within reasonable bounds.’ (Rogers v. State, 18 Ga. App. 332 (2) (89 SE 460)). . . .” McGinty v. State, 59 Ga. App. 675 (hn. 1), supra. For example, it is “purely within the discretion of the court as to whether the State’s counsel should be permitted to lead the witness, or to cross-examine his own witness.” Fouraker v. State, 4 Ga. App. 692, 693 (3) (62 SE 116). The trial court “may restrict the cross-examination to matters material to the issues. [Cits.] [The trial court] may also restrain useless and unnecessary repetition of questions which have been asked and fully answered. [Cits.]” Clifton v. State, 187 Ga. 502, 508 (4) (2 SE2d 102). However, “ ‘[t]he Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value.’ Agnor’s Georgia Evidence, § 10-2, p. 165. [Cits.]” Sprouse v. State, 242 Ga. 831, 833 (3) (252 SE2d 173). “ ‘Any evidence is relevant which logically tends to prove or to disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or to throw light upon a material issue or issues is relevant.’ Harris v. State, 142 Ga. App. 37, 41 (234 SE2d 798).” Owens v. State, 248 Ga. 629, 630 (284 SE2d 408). “ ‘It should require a very strong case of threatened evil, to justify a Court in preventing a [criminal defendant from eliciting on cross-examination the existence of circumstances which tend to discredit testimony identifying him as the culprit], or which tends to strengthen, add force or probability to such [inference].’ Walker v. Walker, 14 Ga. 242 (6) (1853).” Brinson v. State, 201 Ga. App. 80 (1) (410 SE2d 50).

In the case sub judice, the excluded document went to establish how it was that the witness who at trial identified defendant as the armed robber had, one week before, selected another person’s photograph as that of the robber. This fact is material to the intelligence, memory, accuracy, and veracity of the witness. Moreover, the fact that this witness identified someone other than defendant from the same series of photographs as used in the police line-up is in the nature of a prior inconsistent statement, which “ ‘is admissible as substantive evidence, and is not limited in value only to impeachment purposes.’ . . . Ledford v. State, 202 Ga. App. 694, 695 (1) (415 SE2d 693) (1992).” Olivaria v. State, 207 Ga. App. 662 (1), 663 (428 SE2d 624). “Where the relevancy of documents which may be used as evidence appears, it is error to unduly restrict the cross-examination relating to such documents. [Cit.]” Ledford v. State, 89 Ga. App. 683, 684 (1), 685, supra. “Accordingly, the trial court’s evidentiary ruling [excluding as irrelevant defendant’s proffered exhibit and forbidding related cross-examination as to a different identification of the culprit] was violative of the ‘Georgia rule’ favoring the admissibility of any relevant evidence and was, therefore, erroneous.” Brinson v. State, 201 Ga. App. 80 (1), 81, supra.

(c) Nevertheless, the question remains whether this undue limitation of cross-examination and erroneous exclusion of relevant evidence was “harmful error requiring a reversal [of defendant’s conviction under Count 4] and a new trial. [The Supreme Court of Georgia] has adopted the highly probable test when determining if an error is harmless. If it is highly probable that the error did not contribute to the judgment then the error is harmless. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976).” Owens v. State, 248 Ga. 629, 631, supra. “The proper test to determine whether error is harmless [due to overwhelming evidence of guilt] is not whether there is sufficient other evidence to convict but whether ‘it is highly probable that the error did not contribute to the judgment.’ [Cit.]” Ragan v. State, 264 Ga. 190, 192 (3) (442 SE2d 750).

In the case sub judice, two other eyewitnesses identified defendant as the armed robber. Sergeant Donny Kelly of the City of Lilburn Police Department interviewed Jim Cooksey, the store manager. Jim Cooksey “was unsure, basically. He did pick the Defendant Snelling, photograph number two, but he was unsure. He wasn’t very sure of it. I asked him exactly, you know, what transpired. He stated that in the incident he really didn’t have an opportunity to get a real closeup look at [the robber] due to the fact that [the robber] stayed behind him.” Seventeen-year-old Orenthea Peavy was a cook at the Kentucky Fried Chicken store on the evening in question. Orenthea Peavy was “able to make an identification on the photo line up[,]” as well as an in-court identification, naming defendant as the man who pulled a gun and grabbed Orenthea Peavy by the arm, walking him and Ayanna Clarke to the office.

This evidence is sufficient to authorize the jury’s verdict beyond a reasonable doubt. However, even when coupled with evidence that defendant committed the other armed robberies alleged in the indictment, it is not overwhelming evidence that defendant is guilty of this particular offense. There is no physical evidence placing defendant at the scene. Compare Blige v. State, 264 Ga. 166, 168 (3) (441 SE2d 752). Nor is there evidence that he was found in possession of the fruits of the robbery or the handgun allegedly used. Compare Worley v. State, 201 Ga. App. 704, 707 (2c) (411 SE2d 760). “[W]e cannot determine what role this [excluded] evidence [would] have played [in the jury’s deliberations].” Waters v. State, 210 Ga. App. 305 (1), 307 (436 SE2d 44). Accordingly, “we cannot say that it is highly probable that the error [in unduly limiting cross-examination and in excluding relevant impeachment evidence] did not contribute to the jury’s verdict [as to Count 4 of this indictment].” Johnson v. State, 238 Ga. 59, 61, supra. Consequently, the judgment of conviction as to Count 4 of the indictment must be reversed. Ledford v. State, 89 Ga. App. 683, 684 (1), 685, supra. See also Quinn v. State, 132 Ga. App. 395, 396 (2) (208 SE2d 263).

2. Defendant’s third enumeration contends the trial court erred in failing to merge Count 3 into Count 2, relying on Deans v. State, 212 Ga. App. 571 (443 SE2d 6).

The State argues that “appellant should not be allowed to raise this issue for the first time on appeal.” However, if defendant is correct in his attack upon the conviction, then any judgment ostensibly entered thereon is a mere nullity, is void, and is subject to attack in this court. Barrett v. State, 183 Ga. App. 729 (1) (360 SE2d 400).

Count 2 of the indictment alleged that on the 27th day of December 1992, defendant took U. S. currency belonging to Arby’s RTM, Inc., from the immediate presence of Cynthia Lester, by use of a handgun. Count 3 alleged that on the 27th day of December 1992, defendant took a Decatur Federal bank card and a Citibank Visa credit card belonging to Cynthia Lester from her immediate presence. In support of these allegations, Cynthia R. Lester, manager of the Arby’s restaurant on Indian Trail Road, identified defendant as the man who displayed a pistol in her presence and then “came across the counter at that time and asked [her] to empty out the cash drawer from that register on the front line, which [she] did.” Defendant also forced Cynthia Lester to open a safe and the drive-through cash register before locking her in the cooler with other employees. Defendant “came back a couple of minutes later and took [Cynthia Lester] out of the cooler and [she] was up against the wall in the office and he took [her] bank card and one of [her] credit cards and put them in front of [her] face and asked [her] what the numbers were on those cards. . . . And at that point[, she] noticed [her] wallet was in the bag that he had taken off of a table and he had put all the money in and put [Cynthia Lester] back in the cooler. . . .” On cross-examination, Cynthia Lester repeated that, after defendant took her out of the cooler: “I stood right there in that spot and he showed me the credit cards, asked me the number and then put me back in the cooler.”

Decided November 18, 1994.

Sharon L. Hopkins, for appellant.

Daniel J. Porter, District Attorney, Donald L. Johstono, Jr., Assistant District Attorney, for appellee.

“ ‘Robbery is a crime against possession, and is not affected by concepts of ownership. Similarly, one may only rob a person, and not a corporate entity, or an object such as [a cash register or safe]. . . .’ [Cit.]” Deans v. State, 212 Ga. App. 571, 572, supra. In the case sub judice, the State’s evidence, when viewed to uphold the guilty verdicts, shows a single robbery from the immediate presence of Cynthia Lester by which defendant took both corporate cash and personal bank cards, and not separate and sequential offenses. Cynthia Lester’s testimony shows that defendant already had rifled her wallet of its contents when he returned to the cooler, waved the cards in her face and demanded to know the access numbers to her accounts. “ ‘It follows that since there was only one victim, the (manager), who was by this single transaction despoiled of [her] possession of both ([her] property and the property of the restaurant), there was only one robbery. . . .’ [Cit.]” Deans v. State, 212 Ga. App. 571, 572, supra. Consequently, the trial court erred in entering a separate judgment of conviction and sentence for armed robbery as alleged in Count 3 of the indictment. That judgment of conviction is vacated, and the trial court “ ‘is directed hereby to strike the sentence imposed on the (third) count.’ Creecy v. State, 235 Ga. 542, 544 (221 SE2d 17) (1975). See also Jackson v. State, 236 Ga. 98 (222 SE2d 380).” Deans v. State, 212 Ga. App. 571, 572, supra.

Judgment affirmed in part, reversed in part, and vacated in part with direction.

Pope, C. J., and Smith, J., concur.


text:
    A94A2408.
    ADAMS v. TRUST COMPANY BANK.
    (450 SE2d 305)
    Decided November 18, 1994.

      Barry G. Irwin, for appellant.

      Stokes, Lazarus & Carmichael, Mike J. Ernst, Richard J. Joseph, for appellee.
   McMurray, Presiding Judge.

This is the second appearance of the case sub judice before this court. Following our decision in Adams v. Trust Co. Bank, 206 Ga. App. 554 (426 SE2d 36), the case was remanded to the superior court where further discovery was conducted and a pretrial order entered on April 4, 1994. On May 12, 1994, an order was filed granting summary judgment on most of the remaining issues in favor of plaintiff Trust Company Bank and against defendant Adams. Held:

Defendant appeals from the grant of summary judgment and submits as his sole enumeration of error the omission from the pretrial order of the issues formed by his counterclaim predicated on 15 USC § 1640 (a) (1). However, this issue is raised for the first time on appeal and there was no objection to the pretrial order submitted to the superior court. While defendant argues that this appeal presents his first opportunity to seek a ruling concerning the content of the pretrial order, we do not agree. Defendant’s obligation was to object in a timely manner, and certainly before a ruling upon a motion for summary judgment if practicable. Instead of objecting to the pretrial order below, defendant allowed more than a month to pass, after the filing of the pretrial order and before the entry of the order granting summary judgment in favor of plaintiff, without any objection to the content of the pretrial order. This was done with knowledge that the pretrial order might adversely affect any ruling upon the then pending motion for summary judgment. By waiting this lengthy period of time for the adverse judgment on the motion for summary judgment before raising any objection to the pretrial order, defendant has waived the issue which he belatedly attempts to submit on appeal. Hawkins v. Richardson-Merrell, Inc., 147 Ga. App. 481, 484 (2) (249 SE2d 286). See also Horne v. City of Cordele, 254 Ga. 346, 347 (1) (329 SE2d 134); Morris v. Nat. Western Life Ins. Co., 208 Ga. App. 443, 445 (2) (430 SE2d 813); King v. Thompkins, 186 Ga. App. 12, 16 (8) (366 SE2d 340).

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


text:
    A94A2613.
    GENTRY v. THE STATE.
    (450 SE2d 304)
   McMurray, Presiding Judge.

Defendant Gentry appeals his conviction of two counts of child molestation. Held:

1. Defendant contends that there was no evidence from which any rational trier of fact could have found proof of guilt beyond a reasonable doubt as to one of the offenses (Count 1). The State presented the testimony of this victim’s mother that on the date in question she had left the victim, who was then four years old, the victim’s older brother, and a babysitter, at defendant’s home to go swimming. The mother testified that she picked them up later and that on the drive home, the victim told her that she had played “with Pe Pa’s ding dong. . . .” “Pe Pa” was the name the victim used for the defendant. The mother also testified that “ding dong” was not a term used around their home and that when she asked the victim where this was at, “she pointed between her legs.”

A videotape of an interview with the victim was introduced into evidence without objection. In the videotape, the victim at first denies touching defendant’s “ding dong” and after some discussion states that she touched it just once. Inquiries were also made on the videotape directed towards ascertaining where or what was the “ding dong,” and we may be stating the obvious in noting that ample evidence was developed which would authorize the trier of fact to determine that the object being discussed was defendant’s penis.

At trial, the victim testified but nothing concerning the incident was elicited, the victim nodding or shaking her head but declining to verbally address questions related to the substance of the offense on appeal. The transcript does not indicate that the victim’s nodded responses were discernible as negative or positive. Defendant maintains that the victim’s trial testimony amounted to a denial that any incident occurred, but even if such is correct, the result is not altered.

Defendant notes the child’s denials of any incident at trial, if such was the case, and initially on the videotape. He also relies upon the lack of details, from the child concerning the manner in which the incident occurred, in the mother’s testimony, and questions, for several reasons, the reliability of the videotaped statement of the victim. Based on these factors defendant maintains that the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) has not been satisfied by the evidence presented at trial. However, defendant’s argument is directed not towards the sufficiency of the evidence but to issues of credibility and weight of the evidence. “The jurors are the judges of credibility and weight of the evidence; they see and hear the witnesses and are better qualified to judge the reasonableness of a hypothesis or a doubt than the appellate court. We examine not the weight but the sufficiency of the evidence. Alexander v. State, 199 Ga. App. 228 (404 SE2d 616).” Owens v. State, 213 Ga. App. 693, 694 (5) (445 SE2d 818). See also Cross v. State, 213 Ga. App. 275 (444 SE2d 589). As there is evidence that defendant caused the victim to touch his penis with the intent to satisfy his sexual desires, we find that the evidence is sufficient to persuade a rational trier of fact of defendant’s guilt beyond a reasonable doubt of this offense. Jackson v. Virginia, 443 U. S. 307, supra. See also Ennis v. State, 210 Ga. App. 392 (436 SE2d 99).

Decided November 18, 1994.

Robert W. Lavender, for appellant.

Lindsay A. Tise, Jr., District Attorney, John H. Bailey, Jr., Assistant District Attorney, for appellee.

2. In his second enumeration of error, defendant contends the trial court erred in allowing into evidence certain hearsay testimony and videotapes under OCGA § 24-3-16, as the circumstances of the out-of-court statements did not bear sufficient indicia of reliability. However, this issue was not preserved for appellate review since there was no objection on these grounds to the testimony now challenged or to the admission of the videotaped interviews with the victims of each of the offenses. Vick v. State, 194 Ga. App. 616 (1) (391 SE2d 455).

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


text:
    A94A2724.
    NESBITT v. THE STATE.
    (450 SE2d 310)
   McMurray, Presiding Judge.

Defendant Nesbitt appeals his conviction of two violations of the Georgia Controlled Substances Act, the sale of cocaine and possession with intent to distribute cocaine. Held:

1. Defendant enumerates as error the admission of similar transaction evidence concerning his 1989 conviction for possession of cocaine with intent to distribute. The 1989 incident occurred when defendant attempted to elude police investigating a disturbance he was causing. Defendant crashed a bicycle he was riding, was taken into custody and placed in a patrol car. The police briefly stepped away from the car to secure the bicycle and returned to find a medicine bottle, apparently containing cocaine, in the floorboard of the car.

In the case sub judice, there was an outstanding warrant for defendant’s arrest arising from the sale of cocaine offense on appeal. When police spotted defendant driving in his car and making a right-hand turn without a proper signal, he was pulled over for the traffic violation and arrested immediately when the officers confirmed their identification of him. In this present case the cocaine was found on defendant’s person in a subsequent search pursuant to arrest, the cocaine being packaged in two medicine bottles in a similar fashion to the 1989 incident.

Defendant maintains that the 1989 offense and the possession of cocaine with intent to distribute charge on appeal are dissimilar because the earlier incident did not involve a traffic stop or the existence of a warrant for the arrest of defendant. However, it is not necessary that the two incidents be twins in all respects. “The test is not the number of similarities between the incidents, rather, similar transaction evidence may be admitted if it is substantially relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character. [Cits.]” Sims v. State, 212 Ga. App. 426 (2) (442 SE2d 292). In the case sub judice, the 1989 incident was similar enough to demonstrate defendant’s method of conducting the business of distributing cocaine. Riden v. State, 213 Ga. App. 17, 18 (2) (443 SE2d 865); Summerour v. State, 211 Ga. App. 65, 67 (3) (438 SE2d 176). There was no error in admitting the similar transaction evidence.

2. Defendant enumerates as error the denial of his motion to suppress the contraband found on his person and which serves as the basis for the possession of cocaine with intent to distribute conviction being appealed. This evidence was acquired when officers, who had been briefed on the existence of a warrant for the arrest of defendant on the charge of selling cocaine, saw defendant driving in his car and stopped him. The cocaine was found during a search incident to this arrest. “The arrest of the defendant was legal since the evidence shows that the arresting officer was acting on reliable information that a felony warrant had been issued for his arrest. [Cit.]” Watts v. Cannon, 224 Ga. 797, 798 (164 SE2d 780). See also Batson v. State, 165 Ga. App. 299 (300 SE2d 551). While the arresting officers noted on an arrest warrant that defendant was stopped for a traffic offense, failure to signal a turn, the trial court as trier of fact was authorized to reject defendant’s arguments that this entry impeached the officers’ assertion that they knew of the arrest warrant and that the stop was pretextual. There was no error in the denial of defendant’s motion to suppress evidence.

3. Contending that he did not make a knowing and intelligent waiver of his constitutional rights, defendant maintains the trial court erred in admitting into evidence testimony concerning his custodial statement to police. At the Jackson v. Denno (378 U. S. 368 (84 SC 1774, 12 LE2d 908)) hearing, one of the officers who conducted the interview testified that he advised defendant of his constitutional rights and filled in blanks on the waiver form with defendant’s responses to questions concerning educational level, knowledge of the English language, understanding of the rights explained, and choice to speak with police. The officer stated that he then asked defendant to sign the form, which he did, with the officer signing as witness. The officer further testified that defendant had an opportunity to read the form, that no force or coercion was used against defendant, that defendant did not appear to be under the influence of any drug or suffer from any mental impairment, that no hope of benefit or promise was used to induce defendant to speak, and that defendant was not deprived of any creature comfort to induce him to speak.

Decided November 18, 1994.

Lorie A. Moss, for appellant.

T. Joseph Campbell, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

Defendant testified that the statement he made to police was not the same as that related by police, that he was not advised of his constitutional rights, and that he signed the waiver form without having been afforded an opportunity to read it. Defendant stated that he did not understand that the statement he made to police could be used against him.

As defendant notes in his brief, this issue comes down to the word of the defendant against the word of the investigating police officer. The determination of such questions of credibility rest with the trial court and will be upheld unless clearly erroneous. The trial court’s conclusion that defendant freely and voluntarily waived his constitutional rights is supported by the State’s evidence and will not be overturned on appeal. Satterwhite v. State, 212 Ga. App. 543 (1) (442 SE2d 5); Ellis v. State, 211 Ga. App. 605, 609-610 (6) (440 SE2d 235); Baker v. State, 211 Ga. App. 515, 516 (2) (439 SE2d 668); Autry v. State, 210 Ga. App. 150 (2) (435 SE2d 512).

Judgment affirmed.

Pope, C. J., and Smith, J., concur.