text:
    A97A0150.
    LOMBARD CORPORATION v. COLLINS et al.
    (480 SE2d 47)
   The Court of Appeals desires instruction from the Supreme Court upon the following questions, a determination of which is necessary for a decision in this case. Ga. Const. of 1983, Art. VI, Sec. V, Par. IV; Art. VI, Sec. VI, Par. III (7).

The relevant facts of this case are as follows: Appellant/plaintiff Lombard Corporation appeals from the order of the superior court granting appellees/defendants’ motion to dismiss and dismissing appellant’s motion for judgment on the pleadings. Suit for declaratory judgment and injunctive relief was brought against appellees Marcus E. Collins, Sr. in his official capacity as Commissioner of the Georgia Department of Revenue and Tom Scott in his official capacity as Tax Commissioner of DeKalb County, Georgia, asserting the unconstitutionality of the Georgia intangible tax (OCGA § 48-6-20 et seq.).

The intangible tax assessment at issue pertained to appellant’s 1994 intangible tax bill in the amount of $56.29. The trial court in entering its order noted that “on March 21, 1996, [the Governor] signed House Bill No. 6 and House Bill No. 1101. Both bills repeal the Georgia intangible tax on personal property, effective beginning in tax year 1996. House Bill No. 6 became law upon the Governor’s signature. House Bill No. 1101 becomes effective on January 1, 1997 if House Resolution 734 is passed in the November 1996 general statewide election. The passage of these bills effectively repeals the intangible tax for the present (1996) and future tax years. The parties do not challenge the effectiveness of this repeal.” The trial court further found that “all of the plaintiff’s intangible tax (plus accrued interest) for the 1994 tax year was paid to DeKalb County by a person who is not a party to this action. It is uncontested that this payment completely satisfied all of the plaintiff’s outstanding intangible tax liability for any year prior to 1996.” The trial court then held: “The repeal of Georgia’s intangible tax statute relieved [appellant] from any risk of an intangible tax assessment for the present or any future year. In addition, the payment of the 1994 tax also relieved [appellant] from any risk of future collection of intangible tax already assessed. Accordingly, the combined effect of the repeal and payment is that the [appellant] has realized all of the injunctive relief sought in this action. This action is therefore moot.” The trial court next addressed appellant’s contentions that jurisdiction to dispose of the suit on its merits was retained because the payment of the 1994 intangible tax had been done for the improper purpose of interfering with the trial court’s jurisdiction, and concluded: “Based upon this contention the [appellant] argues that this court can retain jurisdiction and issue a declaratory judgment regarding the constitutionality of the now repealed intangible tax. This court does not agree. The [appellant] does not cite, nor is this court aware of, any authority which would support a finding that the unsolicited tax payment was improper or that this court would have the authority to exercise jurisdiction when the [appellant] has clearly realized the relief requested and is not in a position of uncertainty or insecurity requiring declaratory relief.”

This appeal was transferred to this Court by order of the Supreme Court of Georgia, as it was not deemed a case within their exclusive jurisdiction because “the trial court expressly declined to rule on any constitutional issues.” The sole appellate enumeration is that the trial court erred in entering an order dismissing said suit “upon the ground that the payment by an unknown third person of the unconstitutional intangible tax rendered appellant’s cause of action moot.”

It is settled that “[o]nce deprivation of property has occurred through payment of a substantial amount of the disputed taxes, declaratory judgment no longer is available, as at that point the rights of the parties have already accrued. A petition for declaratory judgment will not lie ‘ “where all rights of the parties have already accrued and where no facts or circumstances are alleged showing a necessity for adjudication in order to relieve the plaintiff from the risk of taking future undirected action, which, without such action, would jeopardize the plaintiff’s interests.”’” (Citations omitted.) Kelly v. City of Atlanta, 217 Ga. App. 365, 367 (2) (457 SE2d 675); see Sentry Ins. v. Majeed, 194 Ga. App. 276 (390 SE2d 269).

Appellant contends, inter alia, that the question of court costs remains to be adjudicated thereby precluding the dismissal of this suit. In Gober v. Colonial Pipeline Co., 228 Ga. 668, 670 (187 SE2d 275), it was held: “1. This court will upon its own motion dismiss an appeal where it affirmatively appears that the questions presented have become moot or that a decision would be of no benefit to the complaining party. 2. The fact that the appellants might possibly derive some future benefit from a favorable adjudication on an abstract question, or that a decision would settle the question of costs, will not require this court to retain and decide the case.” (Citations omitted; emphasis supplied.) Therefore, merely because the third-party interloper did not also pay court costs would not standing alone preclude the dismissal of the suit for mootness.

We further note that the purpose for the statutory provisions pertaining to declaratory judgments is “to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.” OCGA § 9-4-1. Thus, it has long been recognized that “[s]uch proceeding must not be merely one in which the court is called upon to decide an abstract or theoretical question of law, or to give an advisory opinion. Questions which are merely incidental to and determinative of no controversy between the parties are not the proper subject-matter of a declaratory-judgment proceeding.” Darnell v. Tate, 206 Ga. 576, 580 (1) (58 SE2d 160).

Further, “as a general rule, a suit for injunctive relief regarding the collection of allegedly illegal taxes should not be entertained by the courts if the taxes at issue have been substantially collected and disbursed.” Kelly, supra at 367 (2). Appellant’s taxes, which are the only taxes here at issue, have been collected; payment has been made, albeit by some third-party interloper, of all intangible taxes now due and owing by appellant.

Thus, under existing precedent, this action would appear to become moot, unless there exists some exception to the rule which would preclude a third-party interloper from depriving a corporate entity of this state of a judicial adjudication of its cause of action in our courts by said third party indirectly injecting himself into the outcome of the litigation (without the apparent prior consent of the court or the party plaintiff) by paying the tax in controversy. Our examination of the law of this state discloses no controlling prior precedent. Appellees, citing Gunby v. Yates, 214 Ga. 17, 19 (102 SE2d 548), contend that a tax is an enforced contribution exacted pursuant to legislative authority for the purpose of raising revenue to be used for public or governmental purpose, and therefore “the State’s interest is in payment of taxes due; the source of the payment is irrelevant.” We recognize the State’s legitimate interest in having a taxpayer pay the taxes he lawfully owes; we acknowledge that, as a practical matter, the State probably does not care who pays a taxpayer’s tax bill as long as the taxes are paid. However, this does not resolve the issue before us. There remains the question whether this appellant, a legal corporate entity of this state, has a general right to access to our courts to obtain legal redress and whether, if such a right exists, it can be eradicated by the conduct of a third-party interloper — regardless of the motive prompting the interference of such third party. As the existing precedent provides this Court with no definitive answer to these serious issues, the following questions are hereby certified to the Supreme Court of this state:

Decided January 16, 1997.

1. Do the provisions of Ga. Const, of 1983, Art. I, Sec. I, Par. XII, apply to a corporate entity such as appellant? If so, was appellant’s constitutional right violated by the mooting of this case by reason of the payment of the taxes in question by a third party?

2. As a matter of public policy is a third party, who is not a party to a lawsuit, authorized to pay the taxes of the party plaintiff without either the trial court’s or the plaintiff’s consent, thereby causing the plaintiff’s case to become moot?

3. Assuming arguendo the State has a legitimate interest in having a tax assessment against a specific entity paid by some intervening third party, does that interest prevail when balanced against the interest of the taxpayer to seek a judicial adjudication in the courts of this state as to the legality of the tax which has been assessed against him?

4. Additionally, does a corporate entity have a legal right to refuse a gratuitous payment of its assessed taxes by a third party who is not a party to existing litigation or who does not possess any direct interest in either the appellant corporation or the state revenue system? If so, under the facts of this case, would that interest outweigh a legitimate interest of the State, if any, to have the said tax assessment paid by a third party?

5. Is the holding of the lower court legally correct that the existing law of this state renders both the declaratory and injunctive relief actions in this case moot? If so, does the gratuitous, unsolicited payment of appellant’s tax by a third-party interloper, without either the consent of appellant or the trial court, for any basis in law or equity warrant the creation of an exception to the rules rendering both the declaratory judgment and injunctive relief actions moot?

The Clerk of this Court is directed to prepare a certified copy of the foregoing questions and transmit the same, together with the record in this case, to the Supreme Court.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A96A2508.
    DEE et al. v. SWEET et al.
    (480 SE2d 316)
   Birdsong, Presiding Judge.

Appellants/defendants William V. Dee and Arthur H. McMahon appeal from the order granting appellees/plaintiffs’ motion to execute judgment against registry funds and denying appellant Dee’s motion for appointment of .guardian ad litem.

In January 1992, following the acrimonious termination of the parties’ business relationship, appellees sued appellants seeking damages for various business-related tortious conduct (Civil Action Case No. D-96405). A temporary restraining order (TRO) was granted preventing destruction of evidence by appellants; subsequently, another TRO was granted restraining appellants from disposing of certain corporate and personal assets of appellants. Expedited discovery commenced. During the taking of the deposition of appellant Dee’s wife, Janet, it was discovered she had transferred $142,000 in her own name into out-of-state banks. At trial of Case No. 96405, Mrs. Dee testified that appellant Dee had directed her to transfer these funds. Mrs. Dee’s actions caused appellees to file suit (Civil Action Case No. D-96953) against her requesting a TRO. In February 1992, in Case No. D-96953, Mrs. Dee was ordered to transfer instanter into the superior court registry the $142,000 she had transferred to out-of-state bank accounts. Mrs. Dee complied and transferred the monies into the court registry in Case No. D-96953.

Mrs. Dee subsequently filed for divorce. In June 1993, in Civil Action Case No. D-98878, the trial court entered a final judgment and decree of divorce between appellant Dee and his wife. The funds transferred by Mrs. Dee were to be held in the registry pending the outcome of the “ ‘Sweet and Wright’ ” tort litigation (Case No. 96405), and were to be given to appellant Dee only to the extent that any of said funds, plus any accrued interest, were thereafter awarded to appellant in Case No. 96405. The decree also ordered appellant Dee to pay certain debts and obligations of the parties, including any debts arising out of final litigation in Case No. 96405. Further, pursuant to the decree, appellant Dee was required to pay child support, all medical, psychological, and dental (including orthodontic) expenditures, and one-half of certain tuition costs for his minor children.

In July 1993, in Case No. D-96405, appellant Dee filed a motion for withdrawal of the funds which had been transferred to the registry pursuant to the February 1992 order entered in Case No. D-96953. The trial court denied the motion without prejudice. On October 8, 1993, the trial court entered an order dismissing the complaint against Mrs. Dee in Case No. D-96953, and transferring the funds being held pursuant to the February 1992 order in Case No. D-96953 to Case No. D-96405.

In March 1994, after a jury trial in Case No. D-96405, a special verdict was returned against appellants as to appellees’ claims of fraud and Georgia RICO; the special verdict also found against appellant McMahon on the claim of libel and in favor of appellee Wright on the claim of tortious interference with commissions. Dee v. Sweet, 218 Ga. App. 18, 19 (460 SE2d 110). The jury awarded appellees a judgment of $724,776 and appellants appealed. (In July 1994, fi. fas. were issued showing appellant Dee’s joint and several liability in the amount of $339,363 principal as to appellee Sweet and $305,413 principal as to Wright.)

The issue of entitlement to the registry money was not expressly adjudicated during the trial of Case No. D-96405, notwithstanding the order of the superior court, filed on October 8, 1993 in Case No. D-96953, which transferred the registry funds to Case No. D-96405 to be “held there until the issue of entitlement to the funds is decided in that case.”

In August 1994, the trial court ordered appellants to post a joint supersedeas bond, reduced (by the amount of all principal and interest then in the court’s registry) to an amount of $517,087.27. The order placed appellants on notice that if the bond was not timely posted, the notice of appeal filed by appellants in Case No. D-96405 would not serve as supersedeas with respect to their adjudged joint and several liability to appellees. Appellant Dee failed to post the required bond. The appeal proceeded and in July 1995, judgment was affirmed by this Court in Dee v. Sweet, supra.

In September 1994, while the tort suit appeal was still pending, appellees filed a motion to execute their judgment against the registry funds due to appellant Dee’s failure to post supersedeas bond. This motion was the first claim made by any creditor of appellant Dee to levy upon the registry funds. In response, appellant Dee moved for the appointment of a guardian ad litem for his children and opposed appellee’s motion to execute. Appellant Dee basically contends that the registry funds constitute marital assets which should be used to satisfy the arrearage of his prior court-imposed child support obligation and that his children have a paramount claim over the funds in the registry. In February 1996 a hearing was held on appellees’ motion; the trial court granted appellees’ motion to withdraw and pay registry funds to the appellees and denied appellant Dee’s motion for appointment of a guardian ad litem. Held:

1. The trial court did not err in denying appellant’s motion for appointment of a guardian ad litem. OCGA § 29-4-7 pertinently provides: “When a minor is interested in any litigation pending in any court in this state and he has no guardian or his interest is adverse to that of his guardian, such court may appoint a guardian ad litem for the minor.” (Emphasis supplied.) A trial court exercises discretion whether to appoint a guardian ad litem pursuant to the provisions of OCGA §§ 29-4-7 and 9-11-17 (c). See Munford v. Maclellan, 258 Ga. 679, 681 (2) (373 SE2d 368); O’Neil v. Moore, 118 Ga. App. 424, 428 (2) (164 SE2d 328). Pursuant to the final judgment and decree of divorce, both appellant Dee and Mrs. Dee were awarded joint custody of the two children; however, Mrs. Dee was designated as the primary physical custodian of the children and, in instances of dispute, was granted “the sole power and responsibility for making the final decision regarding [all major decisions concerning the children, including but not limited to matters of education, health care, and religious training,] and other issues concerning the raising of the minor children.” The divorce decree in its four corners reflects that Mrs. Dee, as the children’s mother and primary physical custodian, is the natural guardian of the children (see generally OCGA §§ 29-4-1; 29-4-2 (a)), and also was vested with broad power to make final decisions regarding their persons and property. Appellant has failed to raise any issue as to the mother’s lawful authority to act on behalf of her children in regard to their property rights. Further, as affirmatively recognized by the trial court, there exists no admissible evidence of record that Mrs. Dee’s interests in the matters here at issue are adverse to that of her children. The clear import of OCGA §§ 9-11-17 (c) and 29-4-7 when construed in pari materia is that “a guardian ad litem need not be appointed for a minor who has a regular guardian, except in case the interest of the minor is adverse to that of his guardian.” Marshall v. C & S Nat. Bank, 54 Ga. App. 123, 128 (1) (187 SE 240). Mosley v. Lankford, 244 Ga. 409 (260 SE2d 322) is distinguishable. Under the attendant circumstances, the trial court did not abuse its discretion in denying appellant’s motion for the appointment of a guardian ad litem for the children.

2. Appellants assert the trial court erred in failing to follow the lien priority established pursuant to OCGA §§ 44-14-321 and 44-14-323. Appellants’ enumeration, as crafted, is without merit. Pretermitting whether the children are in fact judgment creditors of appellant Dee is the issue whether the final judgment and decree of divorce created a lien superior to the judgment creditor claims of the appellees. We hold it did not. OCGA § 9-12-80 pertinently provides: “All judgments obtained in the superior courts ... of this state shall be of equal dignity and shall bind all the property of the defendant in judgment, both real and personal, from the date of such judgments except as otherwise provided in this Code.” (Emphasis supplied.) However, divorce judgments are an exception to this rule. Cale v. Hale, 157 Ga. App. 412, 413 (277 SE2d 770). “Recognizing that public policy favors the free alienation of private property and the need of the divorced husband to be able to continue transacting business without a lien against his property, the court in Chero-Cola Co. v. May, 169 Ga. 273 (149 SE 895). . . held: A judgment for permanent alimony, payable in stated monthly installments, and not for a fixed gross sum, does not create a lien for monthly installments not due when creditors acquired their liens, upon the property of the husband which he then owns or may afterwards acquire, superior to liens which he may subsequently create on such property in favor of other creditors, where no lien is expressly created upon such property in the judgment for alimony.’ ” Id. The same public policy operates to extend this exception to monthly child support installments paid to a wife, as ordered by a divorce decree. The divorce decree here at issue did not award a lump sum support payment, neither did it expressly create a lien against the court registry funds in favor of the children. Appellants failed to establish affirmatively by the record that subsequent to the divorce decree, either when appellees became judgment creditors of appellant Dee or when appellees obtained a judicial ruling entitling them to the registry funds, there existed unpaid, accrued support installments in any sum certain. Appellants failed to carry their burden of showing that a superior lien existed in favor of the children as to the registry funds prior to the time when appellees became judgment creditors of appellants and acquired their liens.

Additionally, examining the decree of divorce on its four corners, we find it operated to divest Mrs. Dee of any legal claim to the registry fund money. Further, contrary to the property claim asserted by appellant Dee, the decree served to set aside for the use and benefit of the prevailing party in Case No. D-96405 the particular registry funds at issue. Specifically, the decree provided that appellant Dee was to obtain a property interest in these registry funds but only “to the extent” that the funds were subsequently awarded to him in Case No. D-96405. This provision in effect created a condition precedent to appellant Dee’s acquisition of any property right in the registry funds that he first be awarded judicial entitlement thereto. Appellant Dee never was awarded the registry funds and thus never acquired any property right to them after their deposit in the court registry. This result is not harsh, in view of appellants’ pre-litigation conduct and appellant Dee’s election not to appeal the final judgment and decree of divorce regarding this issue.

3. Appellants contend that the superior court erred in issuing a subsequent ruling which overruled a prior court decision of the same court requiring the issue of entitlement to the court registry funds to be resolved by a jury. In the final judgment and divorce decree of appellant Dee and Mrs. Dee, filed July 11, 1993, it was determined that appellant Dee would receive the registry funds at issue but only to the extent that any such funds were awarded to him either by judge or jury , in Case No. D-96405. In an interlocutory order filed July 28, 1993 in Case No. D-96405, Judge Hull, after dismissing appellants’ emergency motion for withdrawal of the registry funds without prejudice, entered an additional finding that the motion involved disputed issues of fact which must be resolved by a jury. Subsequently by order of Judge Hull, filed October 8, 1993 in collateral Case No. D-96953, the same funds were transferred into the registry to Case No. D-96405 with the direction that they be held until the entitlement thereto be determined. (This latter order by Judge Hull also directed that the jury not be informed during trial that funds were being held in the registry.) Nevertheless, Case No. D-96405 proceeded to judgment without any express determination being made as to the entitlement of the funds. Appellants did not timely raise any appellate issue, during the appeal of Case No. D-96405, regarding the lack of a jury determination as to entitlement to the registry funds (see generally Dee v. Sweet, 218 Ga. App. 18, supra); neither does the record establish that appellants timely initiated any successful appeal of that portion of the order of October 8, 1993, which precluded the jury’s knowledge during trial of the existence of registry funds. On appeal, following the post-judgment hearing in Case No. D-96405 in which the trial court granted appellees’ motion to execute a judgment against the registry funds, appellants belatedly raise the issue of lack of a jury trial as to registry fund entitlement. Appellants cannot now prevail on this argument. It is well settled that “ ‘[a] party cannot during the trial ignore what he thinks to be an injustice, taking his chance on a favorable verdict, and complain later.’ ” Bolden v. Carroll, 239 Ga. 188, 189 (1) (236 SE2d 270). Neither can a party complain of a verdict, judgment, ruling, or order that his own trial procedure or conduct aided in causing. Perryman v. Rosenbaum, 205 Ga. App. 784, 790 (423 SE2d 673).

Decided January 17, 1997.

McKenney & Froelich, William J. McKenney, for appellants.

Kilpatrick & Cody, James F. Bogan III, Matthew H. Patton, for appellees.

Judgment affirmed.

Beasley and Blackburn, JJ, concur.


author: Blackburn, Judge.

text:
    A96A2199.
    OWENS v. GENERALI — U. S. BRANCH et al.
    (480 SE2d 863)
   Blackburn, Judge.

Cassandra Meadows Owens appeals from the grant of summary judgment in favor of Generali — U. S. Branch (Generali), the law firm of Sullivan, Hall, Booth & Smith (Sullivan Hall), and attorney Roger S. Sumrall in her abusive litigation lawsuit. Owens filed this suit after successfully defending the underlying suit brought against her by Generali. See Generali U. S. Branch v. Owens, 218 Ga. App. 584 (462 SE2d 464) (1995).

Briefly, Owens, who was uninsured, was involved in an automobile collision with Generali’s insured, Pedro. Generali paid uninsured motorist and medical payment benefits to Pedro in connection with this collision and, under a right of subrogation, then instituted suit against Owens in its own name for recovery of these amounts. Relying upon Liberty Mut. Ins. Co. v. Clark, 165 Ga. App. 31 (299 SE2d 76) (1983), we held that Generali did not have standing to sue Owens in its own name, because although Generali was subrogated to the rights of recovery of Pedro, the right of action itself against Owens belonged to Pedro, and not to Generali. Generali, supra at 585. Owens’ abusive litigation suit then ensued.

As a preliminary matter, we note that in addition to her enumerations of error and brief, Owens filed an amended enumerations of error and brief. The amended enumerations of error and brief are untimely, as they were filed more than 20 days after the appeal was docketed. See Court of Appeals Rule 26 (a). Therefore, the amended enumerations of error “will not be considered inasmuch as enumerations of error may not be amended after the original filing time has expired.” McGraw v. State, 199 Ga. App. 389 (405 SE2d 53) (1991). Likewise, Owens’ amended brief will not be considered, as it was not timely filed, is not one of the briefs provided for in Court of Appeals Rule 24, and Owens failed to obtain leave of court to file the amended brief.

1. First, Owens contends the abusive litigation notice she provided to the appellees met the requirements of OCGA § 51-7-84 (a). That statute provides: “As a condition precedent to any claim for abusive litigation, the person injured by such act shall give written notice by registered or certified mail or some other means evidencing receipt by the addressee to any person against whom such injured person intends to assert a claim for abusive litigation and shall thereby give the person against whom an abusive litigation claim is contemplated an opportunity to voluntarily withdraw, abandon, discontinue, or dismiss the civil proceeding, claim, defense, motion, appeal, civil process, or other position.” Sumrall does not contest the notice provided by Owens, but Generali and Sullivan Hall maintain that as to them, notice was inadequate.

All parties cite Talbert v. Allstate Ins. Co., 200 Ga. App. 312 (408 SE2d 125) (1991) in support of their respective positions. The underlying action in Talbert involved an automobile collision between Talbert and Allstate’s insured. During the course of that litigation, Talbert sent the insured’s attorney three abusive litigation letters. Two of these letters informed the insured’s attorney that he specifically was being provided with notice of an abusive litigation claim, and a third letter made passing mention of an Allstate adjuster. Id. However, none of the letters indicated whom Talbert intended to sue for abusive litigation. After the court directed a verdict for Talbert at trial, he sued Allstate for abusive litigation.

In evaluating whether Talbert’s abusive litigation notice to Allstate was sufficient under OCGA § 51-7-84, we noted that for purposes of that section, OCGA § 51-7-80 (6) defines “person” to include “a corporation or any entity with capacity to sue or be sued.” Id. at 313. Therefore, Allstate was entitled to notice of Talbert’s intention to sue it for abusive litigation. Because “Talbert failed to specify Allstate as the one against whom Talbert would seek relief,” we held that “the letters did not meet the prerequisite of notice under the Code section.” Id. at 314.

In this case, Owens’ abusive litigation letter states: “[pjlease consider this letter notice to your client Generali — U. S. Branch, your law firm, and yourself of my clients’ request pursuant to OCGA §§ 9-15-14, 51-7-80, et seq. for the withdrawal of your client’s claims and dismiss this action within the next thirty (30) days.” Both Sumrall and Sullivan Hall’s names appear at the top of the letter. Owens sets forth the position which she claims is abusive, and the letter was sent by certified mail, return receipt requested. None of the appellees contend that Sumrall did not receive this letter.

We find the notice afforded Generali sufficiently complies with the statute. In accordance with Talbert, the abusive litigation letter plainly names Generali. And, because Generali was a represented party, Owens was precluded from notifying anyone except Sumrall of her abusive litigation claim against Generali. See Ga. State Bar Rule 4-102, Standard 47. Generali’s argument that Owens should have forwarded to Sumrall, as counsel for Generali, a separate certified letter of notice for Sumrall to then forward on to Generali is not required by OCGA § 51-7-84. “The abusive litigation tort set forth in OCGA § 51-7-80 et seq. is in derogation of the common law, and must be strictly limited to the meaning of the language used, and not extended beyond the plain and explicit statutory terms.” Kirsch v. Meredith, 211 Ga. App. 823, 825 (440 SE2d 702) (1994). Therefore, Owens properly afforded notice to Generali under both Talbert and OCGA § 51-7-84.

Similarly, Owens’ letter was sufficient notice to Sullivan Hall of the possibility of an abusive litigation claim. Contrary to Sullivan Hall’s argument, OCGA § 51-7-84 does not require that notice of an abusive litigation claim be specifically provided to a partner, officer, director, stockholder, or shareholder of the firm or corporation allegedly engaging in abusive litigation. “The stated purpose [of OCGA § 51-7-84] is to give the prospective defendant to the abusive litigation claim an opportunity to voluntarily withdraw his defense or position.” Talbert, supra at 313. Because Owens’ abusive litigation letter adequately notified Sumrall, an agent and representative of Sullivan Hall, of her prospective claim, and because Owens’ letter specifically named both Sumrall and Sullivan Hall, we find that Sullivan Hall was given adequate notice of Owens’ claim and an opportunity to withdraw its position.

2. Owens next contends that summary judgment was improper because when Generali filed its suit against her for subrogation, “there was ample binding statutory and case law precedent” prohibiting insurer direct tort actions, including insurer direct tort actions for medical payments. Generali had sought payment from Owens for both uninsured motorist benefits and medical payments in the underlying action. Presumably, Owens advances her “ample authority” argument to show that appellees pursued the underlying suit against her without substantial justification, in violation of OCGA § 51-7-81 (2). We note that although questions of fact are usually for the jury’s determination, whether or not Generali’s suit had a basis in law at the time it was filed is a question of law. It was therefore appropriate for the trial judge to pass on this issue of law in determining whether Generali’s suit was without legal foundation when it was filed.

Owens correctly argues that OCGA § 44-12-24 prohibits the assignment of a right of action for personal torts. And, as we pointed out in Generali, an insurer could not bring suit directly against an uninsured motorist based on an assignment of the insured’s right of action without violating OCGA § 44-12-24. Generali, supra at 585. However, even in light of OCGA § 44-12-24, after reviewing the cases cited by Owens in support of her argument, we disagree that so much authority existed on this point that when Generali filed its suit, appellees instituted abusive litigation.

In addition to Clark, supra, Owens cites Govt. Employees Ins. Co. v. Hardman, 212 Ga. App. 367 (444 SE2d 165) (1994) and Govt. Employees Ins. Co. v. Hirsh, 211 Ga. App. 374 (439 SE2d 59) (1993) as support for her “ample authority” argument. Although both cases address the insurer’s direct pursuit of medical benefits against the respective defendants, neither case deals with a subrogation claim for uninsured motorist benefits, which is also at issue in the instant case. Both cases also construe the specific subrogation language contained in the respective policies. The same holds true for another case cited by Owens, Southern Gen. Ins. Co. v. Ezekiel, 213 Ga. App. 665 (445 SE2d 807) (1994), decided June 24, 1994. Therefore, Hirsh, Hardman, and Ezekiel do not provide the authority for her position that Owens contends.

The case cited by Owens most factually similar to the instant case is Clark, supra, which is the same case this Court relied upon in finding for Owens in the initial action. See Generali, supra. With respect to Owens’ argument that Clark was ample authority to render appellees’ pursuit of the underlying action “without substantial justification,” we disagree. Although we held in Generali, supra, that Clark was not distinguishable from the facts of Generali, appellees correctly point out that Clark was not binding precedent, but physical precedent only. This is so because one judge on the three-judge panel, Presiding Judge Deen, concurred in the judgment only. Clark, supra at 32. “A judgment which is fully concurred in by all Judges of the division is a binding precedent; if there is a . . . concurrence in the judgment only, the opinion is a physical precedent only.” Court of Appeals Rule 33 (a). Additionally, the parties have not cited and we have not located any other binding authority decided subsequent to Clark and prior to the filing of Generali’s suit in support of Owens’ argument.

“Without substantial justification” is defined generally in OCGA § 51-7-80 (7) as asserting a position which is frivolous, groundless in fact or law, or vexatious. Although Owens argues that sufficient authority existed at the time Generali filed its suit against her to make that suit abusive under OCGA § 51-7-80 et seq., our review of the cases cited by Owens indicates that although ultimately without merit, Generali’s position, at the time it filed suit, was not frivolous, groundless in fact or law, or vexatious. See OCGA § 51-7-80 (7). Therefore, Generali’s challenge to Clark in the underlying action, both with respect to insurer direct tort actions and insurer direct tort actions for medical payments, was not “without substantial justification” so as to sustain Owens’ claim for abusive litigation.

3. Owens argues that the trial court erred in granting summary judgment to appellees because there were material facts in evidence to the effect that appellees acted with malice and without substantial justification. Because OCGA § 51-7-81 requires both malice and lack of substantial justification on behalf of the abusive litigation defendant in order to find liability, our holding in Division 2 that appellees did not act without substantial justification makes this question moot.

However, in connection with Owens’ arguments as to malice and substantial justification, we note that she has not cited and we have not located in the record any instance of malice on behalf of appellees. “Malice” is defined by OCGA § 51-7-80 (5) as “acting with ill will or for a wrongful purpose and may be inferred in an action if the party initiated, continued, or procured civil proceedings or process in a harassing manner or used process for a purpose other than that of securing the proper adjudication of the claim upon which the proceedings are based.” As Owens failed to show that appellees acted both with malice and without substantial justification in pursuing the underlying suit, after viewing all the evidence and drawing all reasonable inferences from that evidence in a light most favorable to Owens, we cannot say the trial judge erred in granting summary judgment for appellees on Owens’ abusive litigation claim. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Decided January 21, 1997.

Robert H. Benfield, Jr., for appellant.

Downey & Cleveland, Y. Kevin Williams, William C. Anderson, for appellees.

4. Having upheld the grant of summary judgment for appellees, we address together Owens’ remaining two enumerations of error, which assert that the judge, in making a ruling on the summary judgment motion, should not have relied upon old rulings in Generali’s favor from the underlying case which were later reversed by that trial judge, and further should not have relied upon the fact that in Generali, supra, when the case came before this Court on appeal, we declined to impose a penalty on Generali for frivolous appeal. See Court of Appeals Rule 15 (b).

Contrary to Owens’ assertion, and pretermitting the question of whether the trial judge was authorized to consider either of these facts, nothing in the record or the trial judge’s order granting summary judgment indicates that he did consider these facts. “The burden is on the party asserting error to show it affirmatively by the record.” Stolle v. State Farm &c. Ins. Co., 206 Ga. App. 235, 236 (1) (424 SE2d 807) (1992). “This court will not presume the trial court committed error where that fact does not affirmatively appear.” (Citation and punctuation omitted.) Id. at 235-236. Because “a summary judgment right for any reason will be affirmed,” the trial court did not err in granting summary judgment to appellees. (Citations and punctuation omitted.) Garrett v. Life Ins. Co. &c., 221 Ga. App. 315, 319 (2) (b) (471 SE2d 262) (1996).

Judgment affirmed.

Birdsong, P. J, and Beasley, J., concur.

       The appeal was docketed on June 27, 1996. The first brief and enumerations of error were filed within 20 days, on July 17, 1996. The amended brief and amended enumerations of error were filed on July 30, 1996, outside the 20-day time limit.


text:
    A96A2322, A96A2323.
    NISSAN MOTOR ACCEPTANCE CORPORATION v. STOVALL NISSAN, INC.; and vice versa.
    (480 SE2d 322)
   Blackburn, Judge.

Nissan Motor Acceptance Corporation (NMAC), a financing company, had contracts with Stovall Nissan, Inc. (Stovall), a car dealership, to provide wholesale and retail financing for Stovall’s customers purchasing Nissan cars and trucks. Under this arrangement, NMAC purchased motor vehicle installment sales contracts from Stovall. The current dispute arose when NMAC accused Stovall of selling NMAC chattel paper of this type containing misrepresentations.

When Stovall refused NMAC’s demand to cure the alleged misrepresentations, NMAC suspended its financing arrangement with Stovall. Stovall then filed suit against NMAC, alleging violations of the Georgia Motor Vehicle Dealer’s Day in Court Act (GDDCA), OCGA § 10-1-630 et seq., and the federal Automobile Dealers Day in Court Act (ADDCA), 15 USCS § 1221 et seq. The trial court granted NMAC’s motion for summary judgment on the state claim, but denied the motion on the federal claim. In Case No. A96A2322, NMAC appeals from the trial court’s denial of summary judgment on Stovall’s federal claim. In Case No. A96A2323, Stovall cross-appeals from the trial court’s grant of summary judgment on its state claim.

Case No. A96A2322

1. The federal ADDCA provides a cause of action for automobile dealers against automobile manufacturers. 15 USCS § 1221 et seq. In its order denying summary judgment for NMAC on Stovall’s ADDCA claim, the trial court found that although NMAC was a finance company and not a manufacturer, summary judgment was inappropriate because a genuine issue of material fact existed as to whether NMAC was the agent of the manufacturer, Nissan Motor Corporation in the U.S.A. (Nissan). NMAC enumerates this finding as error.

15 USCS § 1222 reads in pertinent part: “An automobile dealer may bring suit against any automobile manufacturer engaged in commerce . . . and shall recover the damages by him sustained and the cost of suit by reason of the failure of said automobile manufacturer ... to act in good faith in performing or complying with any of the terms or provisions of the franchise, or in terminating, canceling, or not renewing the franchise with said dealer.” 15 USCS § 1221 defines “automobile manufacturer” as “any person, partnership, corporation, association, or other form of business enterprise engaged in the manufacturing or assembling of passenger cars, trucks, or station wagons, including any person, partnership, or corporation which acts for and is under the control of such manufacturer or assembler in connection with the distribution of said automotive vehicles.”

The federal courts in Georgia have construed this statute to provide that “under standard agency principles, if a defendant is an agent of the manufacturer, its actions are cognizable under the ADDCA.” Stamps v. Ford Motor Co., 650 FSupp. 390, 396 (2) (N.D. Ga. 1986). This is so even where, as here, the finance company is not a party to the franchise agreement between the dealer and the manufacturer. Id. A finance company may be “a stranger to the franchise agreement” and still be liable under the ADDCA if it is the agent of the manufacturer. Id. It is therefore necessary to review what evidence was presented of an agency relationship between Nissan and NMAC.

In support of its motion, NMAC presented affidavit testimony that NMAC and Nissan were not the agents of each other. “The bare assertion or denial of the existence of an agency relationship is a statement of fact when made by one of the purported parties to the relationship.” (Citations and punctuation omitted.) Hussey, Gay &c. v. Ga. Ports Auth., 204 Ga. App. 504, 506 (1) (420 SE2d 50) (1992). NMAC having established the absence of an agency relationship, the burden then shifts to Stovall to show evidence to the contrary. On motion for summary judgment, the movant must demonstrate the absence of a genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). However, a defendant who will not bear the burden of proof at trial may discharge this burden by pointing out an absence of evidence in the record to support the nonmoving party’s case. Id. Stovall therefore “cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.” Id.

Stovall presented evidence that NMAC is a wholly owned subsidiary of Nissan, referred to as a “captive finance company.” At all times relevant to the parties’ dispute, Nissan and NMAC had a subvention agreement under which Nissan paid subsidies to NMAC. These subsidies, in essence, lowered the cost of Nissan vehicles, allowing NMAC to finance the purchase of a Nissan vehicle at a better price than would have been possible without the subsidy. James Rode, the former executive vice-president of NMAC, admitted that the purpose of the subvention agreement, and of NMAC itself, was to support and promote the sale of Nissan vehicles.

“A claim of agency may be proved, as any other fact, by circumstantial evidence. . . . The fact of agency may be established by proof of circumstances, apparent relations, and the conduct of the parties.” (Citation and punctuation omitted.) Collins v. Martin, 157 Ga. App. 45, 46 (2) (276 SE2d 102) (1981). “[D]irect evidence of an agency relationship is not required.” Stamps, supra at 396 (2). The threshold for showing agency in this context is low, and even scant factual support may suffice. Id., citing Olson Motor Co. v. Gen. Motors Corp., 703 F2d 284 (8th Cir. 1983), cert. denied, 464 U. S. 894 (104 SC 240, 78 LE2d 231) (1983). Resolving all doubts against NMAC, the facts presented by Stovall create a genuine issue of material fact as to agency, and the trial court properly denied summary judgment for NMAC on this issue.

2. NMAC contends summary judgment should have been granted on Stovall’s ADDCA claim because NMAC acted independently of its parent company, Nissan. According to NMAC, because Nissan did not control NMAC to the point that piercing the corporate veil would be justified, NMAC cannot, as a matter of law, be held liable under the ADDCA. In support of its position, NMAC cites Humana, Inc. v. Kissun, 221 Ga. App. 64 (471 SE2d 514) (1996) (rev’d 267 Ga. 419 (479 SE2d 751) (1997)) and Boafo v. Hosp. Corp. of America, 177 Ga. App. 75 (338 SE2d 477) (1985).

NMAC’s argument misunderstands the law creating liability under the ADDCA. As set forth in Division 1, liability can attach under the ADDCA based on an agency relationship between a defendant and a manufacturer. Stamps, supra. There is no requirement that the parent control, direct, and dominate the subsidiary to the point that piercing the corporate veil is authorized. See generally Stamps, supra. Both Humana and Boafo are nases wherein the plaintiffs attempted to pierce the corporate veil and hold the parent corporations liable for the acts or omissions of the subsidiaries. By contrast, the case sub judice involves no attempt by Stovall to hold Nissan liable for the acts of NMAC. Humana and Boafo are thus inapplicable to the facts of this case, and NMAC’s reliance upon the concept of piercing the corporate veil is immaterial in this context.

3. NMAC claims summary judgment should have been granted on the ADDCA claim because Stovall’s counsel admitted at oral argument on the motion for summary judgment that NMAC was not Nissan’s agent. Examination of the transcript reveals that Stovall’s counsel did not completely disavow any agency relationship between NMAC and Nissan. Instead, he pointed out that NMAC was Nissan’s agent for the purposes of the subvention financing arrangement, hut that it was NMAC’s personnel, and not Nissan’s, that allegedly committed the bad faith acts which form the basis of the suit. According to Stovall’s counsel, NMAC’s personnel were not acting on Nissan’s behalf when they “demanded the repurchase of the contracts [in bad faith] by Stovall.”

To sustain Stovall’s claim against NMAC under the ADDCA, Stamps requires only that Stovall show the existence of an agency relationship between NMAC and Nissan, not that every act undertaken by NMAC was done so at the direction of Nissan. See Stamps, supra. Although NMAC would have us interpret Stamps to require an agent to act at the specific behest of the principal in order for liability to attach to the agent’s acts, Stamps does not directly address this issue, and construing facts strikingly similar to those of this case, it contains no such requirement. Inasmuch as Stovall’s counsel clearly stated to the court that NMAC was Nissan’s agent, this enumeration must fail.

4. Stovall’s amended complaint includes a claim for attorney fees pursuant to OCGA § 13-6-11. Because the trial court denied summary judgment for NMAC on the ADDCA claim, it likewise denied summary judgment on the attorney fees claim. See William Goldberg & Co. v. Cohen, 219 Ga. App. 628, 635 (4) (466 SE2d 872) (1995) (summary judgment properly denied on non-movant’s OCGA § 13-6-11 claim where one of non-movant’s claims remained pending). NMAC contends Stovall is not entitled to attorney fees as a matter of law.

A prevailing plaintiff may recover both damages and the cost of suit under 15 USCS § 1222, but attorney fees are not included in the definition of “cost of suit” under that section. Martin Motor Sales v. Saab-Scania of America, 452 FSupp. 1047, 1059 (9) (S.D.N.Y. 1978), aff’d, 595 F2d 1209 (2nd Cir. 1979). That statute does not prohibit an award of attorney fees by its terms; it simply fails to provide for one. OCGA § 13-6-11 constitutes a vehicle for the collection of attorney fees in this situation, and NMAC cites no authority prohibiting this practice. Stovall also points out in connection with this claim that the underlying action was born out of a contractual dispute involving a retail lease plan. Although Stovall cannot twice recover its expenses of litigation, no authority precludes it from recovering only attorney fees should it prevail on this claim, and the trial court properly denied summary judgment for NMAC on this issue.

Case No. A96A2323

5. Stovall cross-appeals from the trial court’s grant of summary judgment on its claim under the GDDCA. The trial court correctly found that NMAC was not a covered entity under the GDDCA, and summary judgment on this claim was proper.

Unlike the federal ADDCA, which directs liability at manufacturers, the GDDCA directs liability at franchisors. OCGA § 10-1-631. All of the definitions for Article 22, in which the GDDCA appears, are contained in OCGA § 10-1-622, which defines “franchisor” as: “[a]ny person, resident or nonresident, who directly or indirectly licenses or otherwise authorizes one or more dealers to use a trademark or service mark associated with a make of motor vehicle in connection with the retail sale of new motor vehicles bearing such trademark or service mark; and . . . [a]ny person who in the ordinary course of business and on a recurring basis sells such new motor vehicles to a dealer for resale.” OCGA § 10-1-622 (7) (A) and (B).

The uncontroverted evidence shows that Nissan, not NMAC, licensed Stovall to sell Nissan vehicles. Additionally, NMAC never sold Stovall new Nissan vehicles for resale. There was no franchise agreement between NMAC and Stovall; Stovall’s franchise agreement was with Nissan, the manufacturer. As Stovall has pointed to no evidence showing NMAC was a franchisor under OCGA § 10-1-622 (7) (A) and (B), NMAC cannot be liable under the GDDCA. See OCGA § 10-1-631.

Despite the fact that NMAC was not a franchisor as the GDDCA requires, Stovall argues that summary judgment was improper because NMAC was the agent of Nissan, and Nissan is covered under the GDDCA. Although Stamps, supra, is authority for this argument under the ADDCA, see Division 1, there is no state counterpart to Stamps for the GDDCA. Additionally, because the ADDCA deals with “manufacturers” and the GDDCA deals with “franchisors,” the holding of Stamps cannot be automatically extended to cover the GDDCA. Unlike the ADDCA, “franchisors” and “manufacturers” are defined separately under the GDDCA, and it cannot be presumed that the legislature intended these terms to be interchangeable. See Miller v. Ga. Ports Auth., 266 Ga. 586, 587 (470 SE2d 426) (1996) (“[cjourts should apply the plain meaning to all words, except words of art”). Accordingly, Stamps’ federal “manufacturer” analysis cannot save Stovall’s GDDCA agency argument.

6. Stovall enumerates as error the trial court’s grant of summary judgment on its claim for OCGA § 13-6-11 litigation expenses in connection with its state claims. However, this enumeration is unnecessary and confusing, because the trial court denied summary judgment to NMAC on the OCGA § 13-6-11 claim. In any event, an OCGA § 13-6-11 claim cannot be sustained on claims which are no longer pending. See generally William, Goldberg & Co. v. Cohen, supra. As Stovall’s state claims are no longer pending, this enumeration is without merit.

Decided January 21, 1997.

Gorby & Reeves, Michael J. Gorby, Karen E. Cooper, Levine & Block, Stephen H. Block, for appellant.

Starkey, Land & Crowley, G. Roger Land, Robert C. Koski, for appellee.

Judgments affirmed.

Birdsong, P. J., and Beasley, J., concur.

       Stovall’s complaint also asserted claims for tortious interference with an insurance contract and breach of contract. Stovall does not appeal the trial court’s grant of summary judgment for NMAC on these counts.

       Although neither party raised the issue, state courts are presumed to have concurrent jurisdiction with federal courts to hear federal causes of action unless Congress places exclusive jurisdiction in the federal courts by affirmatively divesting state courts of concurrent jurisdiction. See Collins v. Dept. of Transp., 208 Ga. App. 53, 54 (429 SE2d 707) (1993), citing Yellow Freight System v. Donnelly, 494 U. S. 820 (110 SC 1566, 108 LE2d 834) (1990). State court jurisdiction is not addressed in 15 USCS § 1221 et seq., and 15 USCS § 1222 states only that suit “may” be brought in any district court.

       Stovall cites Colonial Ford v. Ford Motor Co., 592 F2d 1126, 1129 (10th Cir. 1979), cert. denied, 444 U. S. 837 (100 SC 73, 62 LE2d 48) (1979) for the proposition that NMAC is a manufacturer as a matter of law under the ADDCA because it is the wholly owned finance company of Nissan. However, Colonial Ford does not dictate the outcome of this case, as “this Court is not bound by decisions of other states or federal courts except the United States Supreme Court.” Rodgers v. First Union Nat. Bank &c., 220 Ga. App. 821, 822 (1) (a) (470 SE2d 246) (1996). Additionally, Colonial Ford has been squarely rejected by a federal district court sitting in Georgia. See Stamps, supra at 396. While not binding upon this court, decisions of federal district courts sitting in Georgia “can furnish guidelines that may be instructive and worthy of acceptance.” Southern R. Co. v. Malone Freight Lines, 174 Ga. App. 405, 408 (1) (330 SE2d 371) (1985) (looking for direction to a decision of the United States District Court for the Northern District of Georgia).

       Nissan was originally named as a defendant, but was dismissed from the suit by Stovall with prejudice.


text:
    A96A2334.
    In the Interest of S. S., a child.
    (480 SE2d 327)
   Blackburn, Judge.

The juvenile court adjudicated S. S. delinquent and ordered her committed to the care and supervision of the Department of Children & Youth Services after it found she committed acts which, had she been an adult, would have constituted the crimes of aggravated assault and possession of a weapon during the commission of a crime. In her only enumeration of error, S. S. claims the court’s adjudication is based on insufficient evidence. On review, that evidence is examined under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and the evidence and all reasonable inferences from the evidence are construed in favor of the juvenile court’s findings. In the Interest of J. K. D., 211 Ga. App. 776, 777 (440 SE2d 524) (1994).

The incident giving rise to this adjudication occurred in the midst of an argument involving many juveniles and some adults. The victim and three other witnesses testified that during the disagreement, S. S. attacked the victim with a steak knife and cut her around the face and neck. Under OCGA § 16-5-21 (a) (2), this act constitutes aggravated assault using a deadly weapon. One of the witnesses identified the knife as being approximately seven inches long. See OCGA § 16-11-106 (b) (1) (regarding use of a knife with blade in excess of three inches during commission of crime against another person).

Although S. S. claimed she acted in self-defense and denied she had a knife or caused the injuries to the victim, the evidence did not demand a finding that S. S. acted in self-defense. In light of testimony that S. S. went into her house and returned to confront the victim, a rational trier of fact would be authorized to conclude from this conflicting evidence either that she was the aggressor, or that she stood her ground to engage in mutual combat. See OCGA § 16-3-21 (b) (3); In the Interest of T. S., 211 Ga. App. 46, 47 (2) (438 SE2d 159) (1993) (finding defendant acted in mutual combat, not self-defense). Furthermore, there was evidence that S. S. had a knife and caused the victim’s injuries. Sufficient evidence supports the juvenile court’s findings, and this enumeration has no merit. See T. S., supra; J. K. D., supra at 778.

Decided January 21, 1997.

Mark J. Nathan, for appellant.

Spencer Lawton, Jr., District Attorney, Jeffrey S. Hendrix, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J, and Beasley, J., concur.


text:
    A96A2403.
    McGARITY v. THE STATE.
    (480 SE2d 319)
   Blackburn, Judge.

Ronald Leon McGarity appeals his conviction for child molestation. He was found guilty of molesting two different children. McGarity argues that the trial court improperly excluded evidence of one victim’s previous exposure to and preoccupation with sexual activity, and he asserts that the evidence was insufficient to support the verdict for the molestation of the other victim.

The record reflects that one victim, an eight-year-old girl, claimed McGarity molested her on numerous occasions when she visited her great-grandmother’s home, where McGarity resided. She testified that she would occasionally sit on McGarity’s lap while they played on his computer. During these computer sessions, McGarity would put his hand inside her panties and rub her genitalia. She testified that this rubbing was painful and left the area raw. She also said that McGarity told her not to tell anyone of these incidents or she would get into trouble. This victim described other incidents where McGarity exposed his penis and made her touch it, fondled her as she sat on his lap at the dinner table, and made her watch a “sex' movie” in his bedroom.

Subsequent to these incidents, McGarity rented a room in a private home. The second victim, an 11-year-old child who lived in the house with her mother, testified that one evening when she went to give McGarity a good-night hug, he pinched her on the breast. The child said she jumped back and told McGarity not to touch her chest. From a short distance, the child’s mother witnessed her daughter flinch from McGarity’s touch and saw the child make a statement to him. Immediately thereafter, outside of McGarity’s presence, the mother asked the daughter what McGarity had done and the child illustrated by pinching her mother’s breast. Upon examining the child, the mother discovered a red mark on one of the child’s breasts. McGarity asserted that he merely caught the girl after she tripped. The child also testified that McGarity had previously tried to make her watch “nasty movies.” McGarity denied both molestations, but admitted owning “adult” videotapes. However, he denied showing them to either victim.

1. With regard to the eight-year-old victim, McGarity’s counsel attempted to introduce evidence of the child’s prior sexual activities. Particularly, he proffered evidence that at the age of four or five, while bathing, the victim was caught inserting her finger into the vagina of her cousin who was the same age, and that she was found “hunching” over the same cousin in bed approximately one year later. Further, McGarity proffered evidence that the child had told her mother that she had been taught how to “french kiss” by her mother’s boyfriend, and that the child was generally preoccupied with sex. McGarity sought to introduce the proffered evidence to show that the child had knowledge of sexual matters, in order to counter any belief by the jury that a child of that age would not know of such matters unless she had in fact been molested by the defendant.

The proffered evidence was excluded by the trial court pursuant to the rape shield statute, OCGA § 24-2-3, which generally prohibits the introduction of “evidence relating to the past sexual behavior of the complaining witness.” McGarity argues that the proffered evidence of the child’s sexual preoccupation was erroneously excluded, because it would contribute materially to the issue of guilt or innocence of the accused. McGarity makes this contention because the proffered evidence was offered in connection with testimony of other witnesses that they would not believe the child under oath.

McGarity argues the exclusion of this evidence was error. The trial court correctly found that the rape shield statute is applicable in child molestation cases. See Flowers v. State, 220 Ga. App. 814, 816-817 (5) (468 SE2d 199) (1996). “Generally, in a child molestation case evidence as to the victim’s reputation for nonchastity is not admissible. Nor may evidence be admitted to discredit the victim by showing her preoccupation with sex.” (Citation omitted.) Vargas v. State, 184 Ga. App. 650 (1) (362 SE2d 461) (1987); see also Woods v. State, 187 Ga. App. 105 (1) (369 SE2d 353) (1988). “Absent a showing of relevance, evidence of a child’s past sexual history, including acts committed by persons other than the accused, is inadmissible.” (Citations and punctuation omitted.) Marion v. State, 206 Ga. App. 159 (1) (424 SE2d 838) (1992). “[I]n sexual crimes where consent is not a defense, evidence of prior sexual conduct is not material to the issues.” Chastain v. State, 257 Ga. 54, 55 (354 SE2d 421) (1987).

The evidence proffered by McGarity was clearly inadmissible under OCGA § 24-2-3 and the cases cited above. Although an exception to the exclusion of evidence regarding a child’s sexual past exists when evidence of the “child abuse syndrome” is introduced, the State put forth no evidence of this syndrome. See Marion, supra; see also Hall v. State, 196 Ga. App. 523, 524 (2) (396 SE2d 271) (1990). Nor did the State ever argue at trial that the child’s testimony must be credible because she could not have learned about sexual matters other than through molestation by the defendant. It was not error for the trial court to exclude the proffered testimony.

2. With regard to the 11-year-old child, McGarity asserts that the evidence was insufficient to support his conviction for child molestation. He contends that the evidence of the pinching encounter with this victim, which occurred in the presence of the mother, does not support a finding that he had the intent to satisfy the sexual desires of either the victim or himself as required by OCGA § 16-6-4 (a).

“Whether the requisite intent [for child molestation] existed was a question of fact, to be determined by the jury after considering all the circumstances surrounding the acts of which the accused is charged, including words, conduct, demeanor, and motive.” (Citations and punctuation omitted.) Foster v. State, 216 Ga. App. 26 (1) (453 SE2d 482) (1995). Also, “in child molestation cases evidence of other similar or connected sexual offenses against children is admissible to corroborate the testimony of the victim as well as to show the lustful disposition of the defendant.” (Citations and punctuation omitted.) Jordan v. State, 172 Ga. App. 496, 501 (9) (323 SE2d 657) (1984). Thus, in considering whether McGarity had the requisite intent to molest the second victim, the jury was authorized to consider incidents concerning the first victim. The jury was also entitled to draw conclusions regarding McGarity’s intent from his display and possession of pornographic materials. See Burris v. State, 204 Ga. App. 806, 808 (1) (420 SE2d 582) (1992). Accordingly, the evidence was sufficient to support an inference that McGarity touched the second victim with the requisite intent and was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that McGarity was guilty of child molestation. See Foster, supra; see also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.

Decided January 21, 1997.

James E. Millsaps, L. Stanford Cox III, for appellant.

Alan A. Cook, District Attorney, for appellee.


text:
    A96A1639.
    DUKES v. THE STATE.
    (480 SE2d 340)
   Blackburn, Judge.

Victor Dukes appeals his conviction for aggravated assault. In the course of a drug transaction gone wrong, Dukes shot the victim, Quinton Nealy, Jr., on the left side, near the chest. Dukes now contends that the evidence was insufficient to support his conviction, that the trial court erred in sustaining the State’s objections to certain questions propounded by Dukes’ counsel, and that a mistrial should have been granted for prosecutorial misconduct. Dukes further contests several jury charges and argues that the court erroneously ruled on the admissibility of certain evidence.

1. Reviewing Dukes’ challenge to the sufficiency of the evidence, “[o]n appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence.” (Citations and punctuation omitted.) Hight v. State, 221 Ga. App. 574 (1) (472 SE2d 113) (1996). The standard of review applied in determining the sufficiency of the evidence is that of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Viewing the evidence in the light most favorable to the verdict, Dukes was sitting outside an apartment complex at night when the victim, Nealy, approached on foot. Dukes asked Nealy for marijuana, and the parties agreed to an even exchange of marijuana for cocaine. After the transaction was completed, Nealy protested that Dukes had not given him an equal amount of cocaine for the marijuana he had provided Dukes. An argument ensued, and Dukes pulled a gun from beneath his shirt and shot Nealy. Nealy testified that he was unarmed, and that he had not physically threatened or struck Dukes in any manner prior to being shot. Police recovered a .25 caliber spent shell casing from the scene of the incident, and, upon arresting Dukes, found in his vicinity a holster and a clip for a .25 caliber automatic pistol.

Following Dukes’ arrest, he made a statement to police in which he admitted shooting Nealy. According to Dukes’ statement, the drug transaction was not an even swap, but a purchase of marijuana by Dukes from Nealy. When Nealy failed to give Dukes his change after making the sale, Dukes shot him. Dukes also claimed that Nealy punched him prior to being shot.

Applying the standard of Jackson v. Virginia, supra, this evidence was sufficient to authorize a rational trier of fact to find Dukes guilty of the offense charged beyond a reasonable doubt. Although Dukes claims that Nealy’s testimony was not credible because Nealy was an admitted drug user who was familiar with the drug trade, “[a]n appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses.” (Citations and punctuation omitted.) Hight, supra at 575. Dukes’ argument that the State failed to prove the elements of assault because Nealy had no apprehension of being shot is equally without merit, as Nealy repeatedly testified to his fear and apprehension. See OCGA §§ 16-5-20; 16-5-21. The evidence was sufficient to authorize the conviction.

2. Dukes contends the trial court erred in sustaining the State’s objections to several questions posed to Nealy during cross-examination.

While questioning Nealy, Dukes’ counsel asked him whether he had been employed while in Florida and whether he owned a gun. According to Dukes’ enumerated errors, the trial court sustained the State’s objections to these questions. However, review of the transcript indicates that the trial court did not sustain the State’s objections to these questions. The trial court specifically overruled the State’s objection to the gun question, and no ruling was made on the State’s objection to the employment question. Additionally, Nealy answered both questions before the State even made its objections, and the jury was never instructed to disregard the witness’ answers. Inasmuch as “the error enumerated on appeal simply did not occur,” Dukes’ arguments with respect to these two questions are without merit. Rose v. State, 186 Ga. App. 775, 777 (368 SE2d 539) (1988).

In another question propounded by Dukes’ counsel, Nealy was asked, “prior to [the date of this incident], how long had you been doing drugs?” Dukes’ argument that the State’s objection to this question should not have been sustained is without merit, as Dukes argued different grounds to the trial court for overruling the State’s objection than he now asserts on appeal.

In response to the State’s objection, Dukes’ counsel argued that the question at issue was intended to address Nealy’s tolerance for drugs. Nealy had earlier testified to smoking two marijuana cigarettes prior to the incident. After considering the tolerance issue, the trial judge sustained the objection to the question as asked, but informed Dukes that this line of questioning would be allowed if Dukes tailored his questions to determine how much Nealy could smoke or drink before becoming affected by the substances.

Despite the fact that the trial court specifically gave Dukes permission to question Nealy on tolerance, Dukes does not argue tolerance on appeal, but instead asserts that the question should have been allowed because the State opened the door by placing Nealy’s character in issue. This situation is similar to that of Wilcox v. State, 263 Ga. 293 (430 SE2d 741) (1993), where in cross-examining a State’s witness, defense counsel argued one ground to the trial court for the admissibility of the evidence and, when his question was not permitted, argued a different ground to the Supreme Court for the admissibility of the evidence. As the Wilcox court held, “[w]e will not consider whether the trial court erred in refusing to admit the evidence for a purpose raised for the first time on appeal, when the appellant affirmatively stated a different. . . purpose at trial.” Id. at 294. Accordingly, Dukes’ arguments with respect to this issue are without merit.

In his last argument regarding questions posed to Nealy, Dukes contends the trial court erred in sustaining the State’s objection to the question, “[h]ave you ever smoked crack cocaine?” The State objected without stating any grounds, and the trial court sustained the objection without explanation.

Although Dukes argues that the State opened the door to this line of questioning by asking Nealy about this particular drug transaction, “instances of specific misconduct may not be used to impeach a witness’ character or veracity unless the misconduct has resulted in the conviction of a crime involving moral turpitude.” (Citations and punctuation omitted.) Dunton v. State, 216 Ga. App. 191 (453 SE2d 800) (1995). Moreover, although this incident did involve drugs, Nealy’s past use of crack cocaine was unrelated to the question before the jury — whether or not Dukes committed an aggravated assault upon Nealy. See generally Goodwin v. State, 208 Ga. App. 707 (1) (431 SE2d 473) (1993) (victim’s prior use or purchase of cocaine irrelevant to defendant’s prosecution for aggravated assault).

Additionally, in connection with the drug transaction forming the basis of this case, a multitude of evidence was introduced regarding Nealy’s familiarity with drugs, including the fact that he had smoked two marijuana cigarettes prior to seeing Dukes, that he and Dukes had traded marijuana for cocaine, that he already had some cocaine on his person when he encountered Dukes, and that he was familiar with the packaging methods for crack cocaine. “Even assuming arguendo that the trial court erroneously refused the testimony, such exclusion was wholly harmless where other evidence of the same facts was introduced and admitted.” (Citations and punctuation omitted.) Rainey v. State, 216 Ga. App. 557, 559 (3) (455 SE2d 73) (1995). Other evidence of Nealy’s drug use was introduced and admitted, and Dukes has failed to show how exclusion of the crack cocaine evidence harmed him. Additionally, “a conviction will be affirmed despite error if the error is harmless beyond a reasonable doubt.” (Citations and punctuation omitted.) Greer v. State, 201 Ga. App. 775, 776 (2) (412 SE2d 843) (1991). In this case, the overwhelming evidence of Dukes’ guilt negates the possibility that any error which occurred regarding the exclusion of this evidence contributed to the conviction. Id.

3. Dukes claims the trial court erred in denying his motion for mistrial based on prosecutorial misconduct. After the admissibility of Dukes’ custodial statement had been established, and as a police officer was preparing to read the statement to the jury, the prosecutor distributed copies of the statement to the jurors. Dukes’ counsel immediately requested a bench conference, and the jury was instructed to leave the copies of the statement in the jury box and retire to the jury room. The statements were collected by a deputy prior to the jury’s return.

Although Dukes contends on appeal that this action amounted to prosecutorial misconduct, the issue of prosecutorial misconduct was never raised below. The trial court never ruled on this issue, and in making his motion for mistrial, Dukes’ counsel argued only the propriety of permitting the jury to review the statement. Where prosecutorial misconduct is not raised below, “[t]he contemporaneous objection rule cannot be avoided by characterizing trial occurrences as examples of prosecutorial misconduct.” (Citations and punctuation omitted.) Williams v. State, 217 Ga. App. 636, 638 (4) (458 SE2d 671) (1995). This is so even where, as here, an objection is interposed. Id. Additionally, “[i]t is well settled that this court will not consider issues raised for the first time on appeal.” (Citations and punctuation omitted.) Norris v. State, 220 Ga. App. 87, 90 (4) (469 SE2d 214) (1996). This enumeration is therefore without merit.

4. During the course of the police investigation, Detective Berry interviewed Nealy at the hospital. At trial, Dukes’ counsel provided the lead detective in the case, Detective Greene, with a copy of Berry’s interview notes, and then questioned Greene as to the contents of those notes. The State’s objection on hearsay grounds was sustained, and Dukes enumerates this ruling as error.

Dukes cites OCGA § 24-3-2 for the proposition that the detective should have been allowed to testify from his colleague’s notes. That section provides: “[wjhen, in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence not as hearsay but as original evidence.” Dukes argues Greene should have been permitted to testify from Berry’s notes in order to explain the conduct of the police investigation.

Dukes’ argument is without merit. “Only in rare instances will the conduct of an investigating officer need to be explained; as in practically every case, the motive, intent, or state of mind of such an officer will not be matters concerning which the truth must be found.” (Citations and punctuation omitted.) Thompson v. State, 201 Ga. App. 646, 648 (3) (411 SE2d 886) (1991). Additionally, OCGA § 24-3-2 notwithstanding, “[w]e find no authority which indicates that investigators may testify to the fruits of their investigations without regard for the hearsay rule; rather such witnesses are bound by that rule and must testify from their own first-hand knowledge alone.” (Citation and punctuation omitted.) Jones v. State, 247 Ga. 268, 272 (9) (275 SE2d 67) (1981), cert. denied, 454 U. S. 817 (102 SC 94, 70 LE2d 86) (1981).

Greene had no first-hand knowledge of what Nealy said to Berry while in the hospital, and Dukes did not present or proffer any evidence at trial that Greene himself, and not Berry, took specific actions following the interview of Nealy which required explanation. As Dukes failed to demonstrate the necessity of explaining any conduct of Detective Greene made in response to the notes of another officer, OCGA § 24-3-2 was not applicable in this situation, and the trial court correctly sustained the State’s objection to the hearsay testimony.

5. Dukes testified on his own behalf, admitting on direct examination that he had done community service work in connection with a charge for disorderly conduct. On cross-examination, Dukes admitted that he had been arrested on this charge, and the State tendered over Dukes’ objection a booking photograph made of Dukes at the time of that arrest. Dukes argues his objection to the relevancy of the photograph should have been sustained.

As a preliminary matter, because Dukes had already testified to the prior offense, he had injected his character into evidence, so the booking photo did not impermissibly place his character in evidence. With respect to the relevancy objection, Dukes himself made his arrest on the prior offense relevant by testifying about the disorderly conduct on direct examination. “Photographs which are material and relevant to any issue are admissible even though they may be duplicative and inflame the jury.” (Citations and punctuation omitted; emphasis in original.) Rash v. State, 207 Ga. App. 585, 587 (4) (428 SE2d 799) (1993). In Rash, a book-in photograph from a prior offense was admitted to show the identity of the defendant as the perpetrator of the prior offense, even though the defendant’s identity had been established. Id. Likewise, the trial court did not err in admitting the book-in photograph of Dukes as proof of his arrest even where the fact of his arrest had been established.

6. Dukes enumerates two errors regarding the court’s charge to the jury. In the first, he contends the trial court erred in failing to charge the jury on pointing a pistol at another, OCGA § 16-11-102, a lesser included offense of aggravated assault. See Fowler v. State, 188 Ga. App. 873, 874 (4) (374 SE2d 805) (1988). However, "[f]ailure to charge on a lesser included offense is never error absent a written request to do so.” Vincent v. State, 203 Ga. App. 874, 876 (1) (418 SE2d 138) (1992). Although Dukes submitted a written request to charge entitled, “Lesser Offense Verdict Form,” the blanks contained on the form for filling in both the lesser and greater offenses were never completed. That is, the form itself mentions nothing about this particular lesser included offense. This inadequacy prevents the form from being a written request to charge, and Dukes’ argument is accordingly without merit. See Vincent, supra at 876 (not error to fail to charge lesser included offenses where written request failed to name the lesser included offenses to be charged).

Finally, Dukes maintains the trial court erred when it charged the jury that “[provocation by threats or words alone in no case justified the assault in resentment of the provoking words.” (Emphasis supplied.) Dukes contends that the judge’s use of the word “justified,” instead of “justifies,” violated OCGA § 17-8-57, the prohibition on expression by the trial judge of his opinion on the evidence. Alternatively, he claims the use of the word “justified” amounted to impermissible burden-shifting.

OCGA § 17-8-57 provides in pertinent part, "[i]t is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” The Supreme Court held in Beam v. State, 265 Ga. 853, 857 (5) (463 SE2d 347) (1995), that "[i]n order to determine whether a trial court has improperly expressed an opinion in its charge as to what has or has not been proved, the whole charge may be considered. OCGA § 17-8-57 is only violated when the court’s charge assumes certain things as facts and intimates to the jury what the judge believes the evidence to be.” (Citations and indention omitted.)

Reviewing the charge as a whole, the sentence which Dukes enumerates as error appears not to have been an improper comment by the trial judge on the evidence, but rather a slip of the tongue as to a single word. Just prior to this sentence, the court gave the jury a complete charge on the defense of justification. Immediately following the subject sentence, the jury was charged that “whether or not the assault was done under circumstances which would be justifiable or was done solely as a result of and in the resentment of threats or provoking words alone is a matter for you, the jury, to determine.” In the very next sentence, the court charged, “[n]ow, if you believe that the defendant was justified under the instructions which I have just given to you, then it would be your duty to acquit the defendant.”

Decided January 22, 1997

Taking the trial judge’s conversion of “justifies” to “justified” in context, and considering the whole charge given, this slip of the tongue does not amount to a violation of OCGA § 17-8-57 requiring reversal. See Marion v. State, 206 Ga. App. 159, 161 (2) (424 SE2d 838) (1992) (reversal for violation of OCGA § 17-8-57 not warranted where trial court’s statement, taken in context of whole charge, did not amount to expression of opinion). Dukes’ argument on this issue is therefore without merit.

Dukes also claims that the use of the word “justified” as set forth above impermissibly placed the burden of proving justification upon him. Again, in evaluating Dukes’ burden-shifting argument, “[t]he charge to the jury is to be taken as a whole and not out of context when making determinations as to the correctness of same.” (Citations and punctuation omitted.) Garren v. State, 220 Ga. App. 66, 68 (5) (467 SE2d 365) (1996).

Examination of the whole charge illustrates that immediately following the sentence Dukes enumerates as error, the court charged the jury that whether or not the assault was justifiable was for their determination. The jury was also charged on the defendant’s presumption of innocence, the State’s burden of proof, the complete defense of justification, and the duty to acquit if justification was found. More importantly, the court also charged the jury that the burden of proof never shifts to the defendant. Accordingly, “[w]e find that the charge, taken as a whole, did not shift any burden to the defendant or lessen the state’s burden of proof.” Scoggins v. State, 156 Ga. App. 652, 654 (5) (275 SE2d 676) (1980). As the charge did not impermissibly place the burden of proof upon Dukes, this argument is without merit.

Judgment affirmed.

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

John F. Nebl, John H. Tarpley, for appellant.

J. Tom Morgan, District Attorney, Desiree S. Peagler, Benjamin M. First, Assistant District Attorneys, for appellee.

       The court did sustain the State’s objections to questions about whether Nealy ever carried a gun and by whom he was employed in Florida. However, Dukes’ enumerations of error do not address these questions, and this Court will not consider Dukes’ arguments contained in his brief that the court’s rulings on these questions were erroneous. See Strickland v. State, 221 Ga. App. 120, 121 (1) (470 SE2d 508) (1996) (“ ‘error argued in the brief but not enumerated as error will not be considered on appeal’ ”).

       In this same discussion with the bench, Dukes’ counsel informed the court that he also intended to ask Nealy how long he had been dealing drugs. The court ruled that Dukes could not ask this question, but as Dukes has not enumerated this ruling as error, it is not before us.


author: McMUKRAY, Presiding Judge.

text:
    A96A1645.
    NUNN v. THE STATE.
    (480 SE2d 614)
   McMUKRAY, Presiding Judge.

Defendant was tried before a jury and convicted of using “fighting words” in violation of OCGA § 16-11-39 (a) (3), having no proof of insurance in violation of OCGA § 40-6-10 (b), and obstruction of a law enforcement officer in violation of OCGA § 16-10-24 (a). The evidence adduced at trial reveals that the incident giving rise to these crimes relates to defendant’s defiant, violent and profane conduct toward Deputy Ralph Kanouff of the Oconee County Sheriff’s Office during a routine traffic stop. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant challenges the sufficiency of the evidence in his first three enumerations of error, arguing essentially that discrepancies and conflicts in Deputy Kanouff’s testimony raise doubt as to the meaning and weight of the deputy’s testimony. This argument is without merit. “Credibility of witnesses and the weight accorded their testimony rests solely with the trier of fact — in this case, the jury. State v. Smith, 134 Ga. App. 602 (215 SE2d 345) (1975). ‘This court passes on the sufficiency of the evidence, not its weight, which was considered by the jury.’ Paul v. State, 144 Ga. App. 106 (240 SE2d 600) (1977); Dillard v. State, 147 Ga. App. 587, 588 (249 SE2d 640) (1978). Conflicts in the testimony of witnesses are a matter of credibility for the jury to resolve. Fisher v. State, 151 Ga. App. 93 (258 SE2d 920) (1979).” Beard v. State, 153 Ga. App. 550 (1) (265 SE2d 875).

(a) Use of “Fighting Words” Conviction. Deputy Kanouff’s testimony that defendant used disgustingly profane words which disparaged the dignity of motherhood, childhood and the intellect of law enforcement officers while Deputy Kanouff was preparing to serve defendant with a traffic citation is sufficient to authorize the jury’s findings that defendant is guilty, beyond a reasonable doubt, of using “fighting words” in the manner charged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). See Brooks v. State, 166 Ga. App. 704 (305 SE2d 436).

Decided January 22, 1997.

Thurmond, Mathis & Patrick, David T. Wooten, Anthony T. Pete, for appellant.

Harry N. Gordon, District Attorney, James D. Love, Assistant

(b) No Proof of Insurance Conviction. Deputy Kanouff s testimony that defendant produced an expired temporary proof of insurance card is sufficient to authorize the jury’s findings that defendant is guilty, beyond a reasonable doubt, of no proof of insurance in violation of OCGA § 40-6-10 (b). Jackson v. Virginia, 443 U. S. 307, supra; Branch v. State, 182 Ga. App. 818 (1), 819 (357 SE2d 136).

(c) Obstruction of a Law Enforcement Officer Conviction. Deputy Kanouff’s testimony that defendant disobeyed the deputy’s order for defendant to stop kicking a “radar antenna” inside the deputy’s patrol car is sufficient to authorize the jury’s findings that defendant is guilty, beyond a reasonable doubt, of obstruction of a law enforcement officer in the manner charged in the indictment. Jackson v. Virginia, 443 U. S. 307, supra; Imperial v. State, 218 Ga. App. 440, 441 (461 SE2d 596).

2. Defendant contends the trial court erred in failing to charge the jury as to the defense of justification — even though he did not request such a charge — because justification was his sole defense to the charge that he used “fighting words.” This contention provides no basis for review.

A defendant cannot complain about a result he procured or aided in causing. Hawkins v. State, 195 Ga. App. 739 (2) (395 SE2d 251). In the case sub judice, defense counsel informed the trial court after the close of evidence and before the charge to the jury that any charge on the defense of justification would not be adjusted to the facts of the case. Under these circumstances, defendant has no room to complain about the trial court’s alleged failure to charge on the defense of justification.

Judgment affirmed.

Senior Appellate Judge Harold R. Banke concurs. Ruffin, J., concurs in the judgment only.

District Attorney, for appellee.

       Defendant was charged with use of “fighting words” in that he, “without provocation, used opprobrious and abusive words which by their very utterance tended to incite an immediate breach of the peace by using words which as a matter of common knowledge and under ordinary circumstances when used to another person tended to provoke violent resentment, in that specifically [defendant] used foul and abusive language in the presence of Deputy Ralph Kanouff. . . .”

       Defendant was charged with obstruction of a law enforcement officer in that he “did knowingly and willfully obstruct and hinder Ralph Kanouff, a law enforcement officer engaged in the official discharge of his official duties, by failing to obey the directions of said law enforcement officer. . . .”


text:
    A96A1918.
    HOBBS v. THE STATE.
    (480 SE2d 330)
   Birdsong, Presiding Judge.

Aubrey Clifton Hobbs, Jr. appeals his convictions for driving under the influence of alcohol. Held:

1. Hobbs contends the evidence is insufficient to sustain his conviction. Although Hobbs argues that the evidence showed he was not driving when he was stopped by the police, the arresting officer testified that he saw Hobbs driving the car. Further, notwithstanding the exclusion of the results of the Intoximeter 3000, see Division 2 below, the testimony from the police officer regarding Hobbs’ ability to drive safely is sufficient to establish Hobbs’ guilt. On appeal we view the evidence in the light most favorable to the verdict, Hobbs no longer enjoys the presumption of innocence, and this Court neither determines the sufficiency of the evidence, weighs the evidence, nor judges the witnesses’ credibility. Grant v. State, 195 Ga. App. 463 (393 SE2d 737). Having reviewed the evidence in the light most favorable to the jury’s verdict, we conclude that a rational trier of fact could have found Hobbs guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Crawford v. State, 245 Ga. 89, 90 (263 SE2d 131).

2. Hobbs also contends the trial court erred by denying his motion in limine seeking to exclude the results of the Intoximeter 3000 because the test violated OCGA § 40-6-392 (a) (1) as the test was conducted on a machine that was operated without all the parts prescribed by the manufacturer. As there is no dispute that the machine did not have all those parts, this case is controlled by our decisions in State v. Kampplain, 223 Ga. App. 16, 17-19 (477 SE2d 143) and State v. Hunter, 221 Ga. App. 837, 838 (473 SE2d 192). Although it is true that this test was conducted before this version of OCGA § 40-6-392 (a) (1) was passed, the terms of the statute made this provision applicable to cases pending when the Act was approved by the Governor. Because this case was pending on that date, the provisions of the Code section apply even though it was impossible for the police to have complied with them. Nevertheless, we must follow the plain language of the statute. State v. Hunter, supra. Accordingly, Hobbs’ convictions must be reversed and the case remanded to the trial court with direction to grant the motion in limine so that the results of the Intoximeter 3000 are excluded. “Moreover, nothing in this opinion is intended to preclude the State from proving a DUI offense by other admissible evidence.” State v. Kampplain, supra at 19.

Decided January 22, 1997.

Lee Sexton, for appellant.

William T. McBroom III, District Attorney, James E. Hardin, Assistant District Attorney, for appellee.

3. In view of our disposition in Division 2, Hobbs’ other enumerations of error are moot and are not likely to arise again upon further prosecution.

Judgment reversed.

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