text:
    A97A1571, A97A1572.
    MUNICIPAL ELECTRIC AUTHORITY OF GEORGIA v. CITY OF CALHOUN; and vice versa.
    (489 SE2d 599)
   Johnson, Judge.

The Municipal Electric Authority of Georgia (“MEAG”) is a statutorily created non-profit corporation which acquires electric power supply resources and provides wholesale electric power and energy to participating Georgia political subdivisions. The city of Calhoun (“Calhoun”), a participant in the program, sued MEAG claiming that it had been overcharged for certain bulk power and energy in violation of various provisions contained in a series of contracts between the parties. Following a two-week bench trial, the trial court entered a very thorough and detailed order entering judgment in favor of Calhoun and awarding damages in the amount of $629,070, representing overpayments made in 1993 and 1994. MEAG appeals in Case No. A97A1571, asserting the trial court'misinterpreted one key provision of the contracts. In Case No. A97A1572, Calhoun appeals from the trial court’s exclusion of its claim for overpayments made in 1992.

Case No. A97A1571

A brief review of the various contracts between these parties is necessary to provide a frame of reference for this appeal. The initial contract between MEAG and the participants in the program, including Calhoun, was dated October 1, 1975. Known as the “Project One Power Sales Contract,” it provided for the sale of electric capacity and electric energy from Plant Hatch and Plant Vogtle. Under the terms of this contract, a participant agreed to receive and pay for an entitlement share of the output of those plants. Calhoun’s share was 2.256 percent. Under § 312 of the Power Sales Contract, if a participant determined that the output and services of the generating facilities exceeded its requirements, MEAG could sell or transfer any or all of the excess output to any other participant in the program who agreed to take the excess. If none of the participants agreed to accept the excess, MEAG could dispose of the excess to other utility companies.

By 1986 it became clear that the demand for electric power by the participants in the program had been overestimated. The parties entered into an Agreement of Understanding For Sale and Purchase of Excess Capacity and Energy, known as the “1987 Agreement.” The purpose of this agreement was to “implement Section 312 of the Project One Power Sales Contract.” In paragraph 1 of the 1987 Agreement, the parties agreed that MEAG was authorized to determine the extent to which a participant’s power allotment exceeded its requirements. This determination “shall be made generally in accordance with the methodology described in Exhibit ‘A’ hereto.” Exhibit “A” consists of two models which illustrate a system of calculating a participant’s capacity requirements. Paragraph 3 of the 1987 Agreement sets the price participants are to pay for excess energy as “the lesser of the Blend Capacity Rate or the actual generation fixed cost per kW.”

In 1991, MEAG became concerned that the “blend capacity rate” charged for excess energy had increased to a level which prompted participants to consider purchasing their own diesel generators to meet their power needs for peak power rather than relying on MEAG. As a result, MEAG proposed to set the excess capacity price using a “rule of thumb” basis. During discussions in 1991, Calhoun objected to the new rates, and a compromise rate for the 1992 budget was reached. In 1993 and 1994 Calhoun paid the new rate under protest asserting that the budgets with rates set at a level other than the blend capacity rate or actual generation rate violated § 312 of the Project One Power Sales Contract and the 1987 Agreement.

MEAG contends that paragraph 7 of the 1987 Agreement, which provides that “[t]he Participant and the Authority agree that this methodology shall be used for the sale and purchase of excess capacity and energy until such time as changed upon thirty days prior written notice from the Authority to the Participant,” allows MEAG to unilaterally change any term of the 1987 Agreement, including the price, by giving the participants 30 days notice. Calhoun and the trial court interpret the term “methodology” as being a reference to the system by which MEAG determines the quantity of excess capacity of the various participants, not to the rate schedule.

1. In three related enumerations of error, MEAG contends the trial court erred in holding that the methodology referred to in paragraph 7 is limited to the system for determining excess capacity. We reject ME AG’s arguments and affirm the trial court for two principal reasons.

(a) “There are three steps in the process of contract construction. The trial court must first decide whether the contract language is ambiguous; if it is ambiguous, the trial court must then apply the applicable rules of construction (OCGA § 13-2-2); if after doing so the trial court determines that an ambiguity still remains, [the trier of fact] must then resolve the ambiguity.” (Citations and punctuation omitted.) Karlan, Inc. v. King, 202 Ga. App. 713, 715 (1) (415 SE2d 319) (1992). See Cincinnati Ins. Co. v. Page, 188 Ga. App. 876, 878 (374 SE2d 768) (1988). It appears that after application of the rules of construction, the ambiguity of the meaning of the word “methodology” in paragraph 7 of the 1987 Agreement was the only issue remaining for resolution by the finder of fact in the trial of the case. In resolving such an ambiguity, the finder of fact may consider parol or other extrinsic evidence to determine the intent of the parties. See American Communities Corp. v. RIHT Mtg. Corp., 195 Ga. App. 101, 102 (1) (392 SE2d 318) (1990). The record in this case exceeds 8,000 pages. Numerous witnesses testified to the intent of the parties in 1986 when the agreement was drafted, but as the trial court noted, “[t]en years separate the testimony and the actual events. The Court gives weight to the contemporaneous documents.” Particularly, it appears, the trial court relied on a letter from MEAG’s general counsel dated October 23, 1986, to the participants which explained that a “method” had been devised to determine the amount of excess capacity which participants may have. The price for such excess, the letter indicated “will be the MEAG blend capacity rate, and the excess energy will be priced at the lowest of these costs as set forth in the agreement.” The findings of the trial court sitting without a jury shall not be set aside unless clearly erroneous. OCGA § 9-11-52 (a); see generally Southern Environmental &c. v. Rosebud Landscape &c., 196 Ga. App. 392 (395 SE2d 913) (1990). Because there was a factual basis supporting the finder of fact’s determination that paragraph 7 of the 1987 Agreement only permits a unilateral change in the methodology used for determining excess capacity, that finding is not clearly erroneous and will not be disturbed.

(b) We agree with the trial court that if paragraph 7 were to be read as suggested by MEAG, that is, if any term of the contract is amendable at the will of MEAG, the entire contract would be void for vagueness because there could be no assent of the parties to the terms of the contract. See OCGA § 13-1-1; Cherokee Falls Investments v. Smith, 213 Ga. App. 603, 605 (1) (445 SE2d 572) (1994). Georgia courts are reluctant to hold a contract void for vagueness. See Smith v. Bd. of Commrs. &c. of Hall County, 244 Ga. 133, 143-144 (5) (259 SE2d 74) (1979). Here, as different power sources come on or offline, as the various participants in the program have fluctuations in their populations or energy needs, or as the ability to create more efficient models of energy usage develop, it is logical to expect that calculations regarding excess capacity may be subject to differing methodologies. This is not so with the price, which was negotiated and agreed to by the parties.

Case No. A97A1572

2. The trial court found that by failing to follow the procedures set out in § 210 of the Project One Sales Contract in 1992, after a compromise regarding the budget had been reached, Calhoun’s payments were voluntary and recovery is barred under OCGA § 13-1-13. Alternatively, the trial court found a common law waiver of Calhoun’s right to recover 1992 damages by virtue of Calhoun’s failure to comply with the provisions of § 210 of the Project One Sales Contract. Calhoun claims these findings are erroneous.

Section 210 of the Project One Power Sales Contract reads: “In the event the monthly Billing Statement is in dispute, [MEAG] will give consideration to such dispute and will advise the Participant with regard to [MEAG’s] position relative thereto within thirty days following written notification by the Participant of such dispute.” Calhoun takes the position that § 210 was intended to provide a mechanism for resolution of computation errors in the monthly billing statements and not as a means for addressing broader disputes such as those concerning the annual budget. Calhoun suggests that this provision does not place any affirmative burden on participants to pay disputed bills under written protest but places a burden on MEAG to respond to a dispute of which it has received written notification within 30 days.

“It is axiomatic that a contract should be construed by the court where the language is undisputed. ... If the contract does not require disentanglement of the language by a [finder of fact], ... it remains the duty of the trial court to look to the language of the contract with a view to effectuating the intent of the parties.” (Citations and punctuation omitted.) Candler v. Davis & Upchurch, 204 Ga. App. 167, 168 (2) (419 SE2d 69) (1992). Calhoun points out that no testimony or evidence was presented at trial concerning the parties’ intent with respect to that provision. Calhoun, of course, had the burden of proof at trial. By failing to introduce any evidence in support of its position regarding the parties’ intent as to § 210, Calhoun acquiesced in that issue being decided as a matter of law. As the trial court pointed out in its order, after reaching a compromise on the 1992 budget, Calhoun paid its monthly billings without objection. In 1993 and 1994, however, Calhoun did object to monthly billings in accordance with the contractual provisions allowing disputed payments to be made under protest. The trial court interpreted § 210 as placing an affirmative obligation on the participants to protest monthly billings in writing and concluded that Calhoun’s failure to protest the monthly billings in 1992 constituted a waiver. “The trial court’s findings will not be set aside unless they are clearly erroneous.” (Citations and punctuation omitted.) Id. The trial court’s reading of § 210 was not clearly erroneous and will not be disturbed.

3. We need not reach Calhoun’s assertion that the trial court erred in finding that the 1992 payments constitute unrecoverable voluntary payments under OCGA § 13-1-13 because a judgment which is right for any reason must be affirmed. See Precise v. City of Rossville, 261 Ga. 210, 211 (3) (403 SE2d 47) (1991).

Judgments affirmed.

Pope, P. J., and Blackburn, J, concur.

Decided July 24, 1997.

Alston & Bird, L. Clifford Adams, Jr., Peter M. Degnan, for appellant.

Erck, Dever & Merlin, Hayes M. Dever, Lawrence M. Merlin, Douglas M. Robinson, Judith W. Bowman, for appellee.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A97A1599.
    WORLE v. THE STATE.
    (489 SE2d 374)
    Decided July 24, 1997.
    Charles A. Worle, pro se.

   Blackburn, Judge.

Charles Anthony Worle appeals the trial court’s denial of his extraordinary motion to withdraw his guilty plea. As the trial court was without jurisdiction to entertain such a motion, we affirm its denial of the motion.

The record reveals that Worle pled guilty to aggravated sodomy, rape, kidnapping with bodily injury, and two counts of armed robbery. Worle was sentenced on February 12, 1992, to serve a life sentence on the kidnapping with bodily injury charge and to serve 20 years on each additional count to be served concurrent with the life sentence. On January 2, 1997, Worle filed his extraordinary motion to withdraw his guilty plea.

“The superior court’s jurisdiction to entertain a motion to withdraw the guilty plea ended after the term of court in which the judgment of conviction was rendered. Harden v. State, 177 Ga. App. 531 (339 SE2d 793) (1986). Stargell v. State, 204 Ga. App. 45 (418 SE2d 372) [(1992)].” (Punctuation omitted.) Stuckey v. State, 204 Ga. App. 793, 794 (1) (420 SE2d 655) (1992). “The motion cannot be considered a motion in arrest of judgment since it was not filed within the term the judgment was rendered, OCGA § 17-9-61 (b), nor can it be construed as a petition for habeas corpus because it was filed in the county in which he was convicted rather than against the warden in the county in which he is incarcerated. OCGA § 9-14-43; Lacey v. State, 253 Ga. 711 (324 SE2d 471) (1985).” Stargell, supra at 45-46.

In the present case, Worle’s extraordinary motion to withdraw his guilty plea was made outside the term of court in which the judgment of conviction was rendered. Therefore, we affirm the denial of defendant’s motion to withdraw his guilty plea.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

Paul L. Howard, Jr., District Attorney, Cassandra J. Cook, Juliette O. W. Scales, Assistant District Attorneys, for appellee.


text:
    A97A1625.
    GODFREY v. THE STATE.
    (489 SE2d 364)
   Blackburn, Judge.

Johnny Paul Godfrey was convicted by a jury of possession of more than one ounce of marijuana. The State presented evidence in aggravation of punishment, and as a result, Godfrey was sentenced to serve 12 years. He now contends that the court erred in admitting evidence in aggravation of punishment, as he did not timely receive notice of the State’s intent to present such evidence. He also argues that the court improperly considered such evidence because most of the prior convictions upon which the court relied in sentencing were not proved by certified copies. For the reasons set forth below, we affirm the sentence.

1. Godfrey claims that the trial court erred when it allowed the State to introduce evidence in aggravation of punishment. He argues that because the State did not provide him with clear notice of its intention to present such evidence, in accordance with OCGA § 17-10-2, the admission of such evidence was harmful error.

OCGA § 17-10-2 (a) provides that after a jury returns a guilty verdict in a felony case, such as this one, the judge shall dismiss the jury and conduct a presentence hearing. At such hearing, “the judge shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or nolo contendere of the defendant.” Id. However, “only such evidence in aggravation as the state has made known to the defendant prior to the defendant’s trial shall be admissible.” Id.

The record indicates that at the presentence hearing, which was conducted directly after trial, the State moved to tender 11 of Godfrey’s prior convictions and pleas into evidence. Godfrey’s counsel objected to this evidence based on lack of notice and informed the court that the prosecutor had shown him copies of the convictions and pleas only just prior to trial. According to Godfrey’s counsel, “I took [the convictions and pleas] from him, said thank you. I briefly looked at them and handed them back and then the trial began.” Although the record does not disclose at what exact point prior to trial these events took place, Godfrey claims that his counsel was handed the documents “as the panel of potential jurors walked into the room.”

On these facts, Godfrey’s contention that he did not receive notice prior to trial is without merit. “Receipt by appellant’s counsel, prior to jury selection, of notice of the State’s intent to use the prior conviction in aggravation of any sentences imposed in this case was timely notice pursuant to OCGA § 17-10-2.” Day v. State, 188 Ga. App. 648, 650 (8) (374 SE2d 87) (1988). Moreover, to the extent Godfrey may be arguing that he did not receive notice until jury selection had actually begun, even notice received during jury selection, prior to the jury’s being sworn, is sufficient to satisfy the requirement of the statute. See Payne v. State, 219 Ga. App. 318, 319 (4) (464 SE2d 884) (1995). Godfrey therefore received timely notice of the State’s intention.

Godfrey also argues that his counsel did not have sufficient time to review the evidence when the State presented it to his counsel. However, “[t]he failure to move for a continuance precludes appellant from asserting that his counsel was not afforded an ample opportunity to investigate the admissibility of the prior conviction[s] as evidence in aggravation of the [sentence] imposed in this case.” Day, supra at 650-651 (8). Godfrey’s arguments in this regard are therefore without merit.

2. Godfrey claims the trial court erred in sentencing him based upon uncertified copies of his prior convictions and pleas. He alleges that although some certified copies were introduced by the State, the majority of the documents relied upon by the trial court in aggravating his punishment were uncertified. According to Godfrey, the certified convictions alone would not have been sufficient to justify the aggravated punishment imposed.

Because Godfrey did not assert this as the basis for his objection to the admissibility of the prior convictions and pleas at trial, he has waived the issue. “ ‘Where an entirely different objection or basis for appeal is argued in the brief which was not presented at trial we will not consider that basis as we are limited to those grounds presented to and ruled upon by the trial court.’ ” (Citation omitted.) Hill v. State, 224 Ga. App. 208, 209-210 (2) (480 SE2d 256) (1997).

Furthermore, the record on appeal, as supplemented by the parties, indicates that all but one of the convictions and pleas which Godfrey contends were uncertified actually were certified when they were relied upon by the court. The court therefore had ten certified convictions and pleas before it when it sentenced Godfrey on this offense. Even presuming the court did rely on one inadmissible conviction in sentencing, in light of the other convictions and pleas which were properly before the court, Godfrey has not shown that he was harmed by any such error.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

Decided July 24, 1997.

Potts & Badaruddin, Shandor S. Badaruddin, for appellant.

Thomas J. Charron, District Attorney, Bruce D. Hornbuckle, Assistant District Attorney, for appellee.


author: Rupein, Judge.

text:
    A97A0284.
    BEESON et al. v. CROUCH.
    (490 SE2d 118)
   Rupein, Judge.

Jim Beeson and David Hughes sued Frank Davis, Combustion Labs, Inc. (“CLI”), and Mark Crouch, individually and as trustee for the Davis Family Trust (“the Trust”), for wrongful and fraudulent dissolution of a business venture. The trial court granted summary judgment to Crouch. Beeson and Hughes appeal, and for reasons-which follow, we affirm.

Summary judgment is appropriate when the court, viewing all the evidence and drawing all reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. [Cit.]” Id.

Viewing the evidence in this light, the record shows that Frank Davis obtained several patents relating to alternative fuel conversion systems. Davis subsequently transferred ownership of these patents to the Davis Family Trust. The document establishing the Trust named various members of Davis’ family as beneficiaries and appointed Mark Crouch as trustee. In February 1991, the Trust entered into an exclusive licensing agreement with CLI, a corporation whose stockholders primarily included Davis’ family members and the Trust. Pursuant to the licensing agreement, the Trust granted CLI an exclusive worldwide license to use certain Trust patents “to manufacture, produce, make, market, distribute, use, sell and lease ‘licensed articles.’ ” The agreement provided for termination in the event of a substantial breach of the agreement or expiration of the patents.

In December 1992, Beeson and Hughes talked with Davis about forming a business venture that would use the Trust patents in the “development, manufacture, marketing and sale of certain fuel conversion systems.” According to Beeson and Hughes, Davis represented that he operated his fuel conversion system business through CLI, which had been licensed by the Trust to manufacture, market and sell the conversion systems worldwide. Davis further represented that although he owned no stock in CLI, he controlled the corporation, as well as the Trust.

Hughes testified that Davis “offered Beeson and [Hughes] the opportunity to enter into a business venture for the development, manufacturing, marketing and sale of the ‘systems’ whereby in consideration for [Beeson and Hughes] advancing funding for the business venture, . . . Beeson would own 28% thereof, [Hughes] would own 28% thereof, Davis, (using the name of the Trust), would own 28% thereof, and the remaining 16% ownership interest in said business venture would be held by the then existing shareholders of CLI. . . .” According to Hughes, the venture was initially to operate as CLI and use CLI’s exclusive right to manufacture, market and sell the fuel conversion systems based upon the Trust patents. Beeson and Hughes accepted the offer and agreed to invest $300,000. They contend that from the end of 1992 through most of 1993, they invested over $300,000 in the venture, including an $80,000 initial advance.

Hughes testified that in October or November 1993, Davis informed him that Crouch, as trustee, had cancelled CLI’s exclusive licensing agreement and was negotiating a new exclusive agreement with another company for the manufacture, marketing and sale of the combustion systems. Davis further stated that the business venture with Beeson and Hughes had been terminated.

Beeson and Hughes sued Davis, Crouch, and CLI for wrongful termination and dissolution of their business partnership. They later amended their complaint to add claims for misrepresentation, recovery of sums advanced to the venture, unjust enrichment, imposition of a constructive trust, and cancellation of Davis’ transfer of patent rights to the Trust. Crouch moved for summary judgment, which the trial court granted. Beeson and Hughes now contend that questions of material fact remain as to Crouch’s liability, rendering summary judgment improper. We disagree.

1. On appeal, Beeson and Hughes first argue that they entered into a partnership with the Trust through Crouch. Assuming, without deciding, that the business venture at issue in this case was a “partnership,” this claim has no merit. Under the Uniform Partnership Act, a partnership “is an association of two or more persons to carry on as co-owners a business for profit. . . .” OCGA § 14-8-6 (a). Even if Beeson and Hughes entered into such a relationship with other people or entities, we find no evidence that they engaged in any partnership with Crouch or the Trust.

To support their claim, Beeson and Hughes cite to Beeson’s deposition, in which he discussed several conversations he had with Crouch during the venture. According to Beeson, he called Crouch “just to confirm we were new partners, new business venture, what was going on. And [Crouch] welcomed us with open arms. He said [Davis] needed some business help and financial. So we were off to a good start, as I recall.” Asked what else was said in the conversation, Beeson testified: “I told you that [Hughes] and I own two thirds, [Davis] one third, [Davis] being the trust.”

Beeson and Hughes contend this vague testimony establishes the Trust’s participation in the business transaction. A clear reading of Beeson’s testimony, however, reveals no statement from Crouch that the Trust had joined the venture. Although Beeson emphasized that Crouch “welcomed [them] with open arms,” his testimony provides no insight into whether Crouch welcomed them to (1) a venture that included the Trust; (2) a venture with Davis that would be working with the Trust’s patents; or (3) some other venture. In contrast, Crouch affirmatively testified that he, acting either individually or as trustee, never entered into a business venture with Beeson or Hughes.

The record further shows that Beeson and Hughes negotiated the venture with Davis and did not speak to Crouch until after it was consummated in late 1992. Beeson and Hughes claim that Davis told them he could act on behalf of the Trust. Yet, they have pointed to no evidence that Davis was in fact authorized to bind the Trust to such venture. According to Beeson, Crouch left him with the impression (but did not affirmatively state) that Davis controlled the Trust. Crouch specifically testified, however, that he never represented to Hughes, Beeson, or anyone else that Davis “was or is authorized to act on my behalf, personally, or on behalf of the Trust.”

Beeson’s vague deposition testimony is not sufficient to create a factual question as to the Trust’s participation in the venture. “In passing upon a motion for summary judgment, a finding of fact which may be inferred but is not demanded by circumstantial evidence, has no probative value against positive and unrebutted evidence that no such facts as sought to be inferred do exist. Although all evidence adduced on motion for summary judgment, including the testimony of [Beeson], must be construed against [Crouch], the testimony of either party is to be most strongly against him where it is self-contradictory, vague or equivocal.” (Citations and punctuation omitted.) Southern Intermodal Logistics v. Smith & Kelly Co., 190 Ga. App. 584, 587 (2) (379 SE2d 612) (1989). Beeson’s testimony evidences no agreement by Crouch to enter the business venture. Instead, it establishes only Beeson’s impression that Crouch and the Trust were part of the venture, which has “no probative value against [Crouch’s] unequivocal testimony.” Id.

Beeson and Hughes have introduced only vague and equivocal testimony that does not conflict with the positive and direct testimony offered by Crouch. Id. Accordingly, we find that no issues of material fact remain as to the Trust’s participation in the venture.

2. We similarly find no evidence that Crouch misrepresented any facts to Beeson and Hughes.

Beeson’s deposition testimony provides the primary basis for plaintiffs’ misrepresentation claim against Crouch. In particular, Beeson and Hughes claim that Crouch misrepresented to Beeson that Davis controlled the Trust. As discussed above, however, Crouch made no such representation. Although Beeson may have left the conversation with the impression that Davis controlled the Trust, he testified as follows at deposition: “Q. Did [Crouch] tell you that he couldn’t do anything else without [Davis’] approval? A. Couldn’t do anything without [Davis’] approval or the [T]rust, [Davis] ran the [T]rust and [CLI]. Q. And you say that Mark Crouch said that specifically? A. I can’t say Mark Crouch said that specifically, he didn’t say they didn’t do it. Mark didn’t tell me that he had to make the final decision, if that’s a roundabout way to answer your question. . . . But could [Davis] make the decision for the [T]rust and the family, yes, I was told that by [Davis] and in my opinion confirmed by [Crouch] by his not saying you can’t do that. . . . Q. You told [Crouch] that you understood that [Davis] could make decisions for the [T]rust, is that right? A. Yes. Q. And [Crouch] didn’t say anything one way or the other, is that right? A. He welcomed us into the deal. He did not say we couldn’t own two thirds, one third, he didn’t say the [T]rust had to vote on the stock. Q. But he didn’t say they didn’t have to either, is that right? A. That’s right.” (Emphasis supplied.)

We find this evidence insufficient to raise a question of fact in light of Crouch’s unequivocal testimony that he never represented that Davis controlled the Trust. Southern Intermodal Logistics, supra. The record shows that Crouch never told Beeson that Davis “ran” the Trust or that he had abdicated his authority to Davis. Perhaps Crouch left Beeson with the impression that Davis could make some undefined decisions for the Trust. Beeson and Hughes, however, have pointed to no evidence that Crouch ever represented that Davis controlled the Trust, as they now claim.

Beeson and Hughes further argue that Crouch misrepresented facts relating to the exclusive licensing agreement. Crouch testified that by letter dated July 2, 1992, he cancelled CLI’s rights under the 1991 exclusive licensing agreement because CLI failed to provide required accounting and sales reports to the Trust. Beeson admitted at deposition that he did not discuss the exclusive licensing agreement with Crouch when he spoke with the trustee in early 1993. Beeson and Hughes claim, however, that if Crouch actually cancelled the exclusive agreement before they entered the joint venture, Crouch should have disclosed the cancellation to them.

“Where a person sustains towards another a relation of trust and confidence, his silence when he should speak, or his failure to disclose what he ought to disclose, is as much a fraud in law as an actual affirmative false representation.” (Citations and punctuation omitted.) Arnall, Golden & Gregory v. Health Svc. Centers, 197 Ga. App. 791, 793 (2) (399 SE2d 565) (1990). According to Beeson and Hughes, they enjoyed such a confidential relationship with the Trust because the Trust formed part of their business venture. As found in Division 1, however, the record presents no evidence that the Trust joined the venture. Beeson and Hughes have pointed to no evidence that Crouch or the Trust owed them a duty to disclose any facts about the 1991 licensing agreement. Accordingly, we find no misrepresentation here.

3. We further find no evidence that Crouch tortiously interfered with Beeson and Hughes’ business venture. To establish tortious interference with a business relationship, Beeson and Hughes must show that Crouch “ ‘(1) acted improperly and without privilege, (2) purposely and with malice with the intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with [Beeson and Hughes], and (4) for which [Beeson and Hughes] suffered some financial injury.’. . . [Cit.]” Arford v. Blalock, 199 Ga. App. 434, 440 (13) (405 SE2d 698) (1991), aff’d sub nom. Wilensky v. Blalock, 262 Ga. 95 (414 SE2d 1) (1992). They cannot raise an issue of fact as to the first requirement.

The record shows that after Crouch terminated the 1991 exclusive licensing agreement on July 2, 1992, the Trust and CLI negotiated a new agreement (“the second licensing agreement”). By its terms, the second licensing agreement became effective immediately after Crouch terminated the prior agreement, but was not fully executed in writing until 1993. The second licensing agreement granted CLI a smaller licensing territory than the original “worldwide” agreement and also allowed the Trust to terminate CLI’s license “for any reason or for no reason” (Emphasis supplied.) By letter dated November 1, 1993, Crouch terminated that agreement on behalf of the Trust, apparently in order to negotiate a similar licensing agreement with another company.

We find no improper action by the Trust or Crouch. The Trust, acting through Crouch, was specifically authorized to cancel the second licensing agreement for any or no reason. Citing fiduciary duties of good faith, Beeson and Hughes argue that “ ‘[a] partner may not . . . “freeze out” a co-partner and appropriate the business to his own use.’ ” Arford, supra at 438 (6). As we found in Division 1, however, the Trust was not a partner to the joint venture, and Beeson and Hughes have pointed to no other evidence establishing a fiduciary relationship with the Trust.

Beeson and Hughes also contend that questions of fact remain as to when Crouch actually terminated the 1991 exclusive licensing agreement with CLI. They accuse Crouch of “pre-dating” the termination letter to July 2,1992, citing as evidence the testimony of CLI’s then-president, who did not recall receiving the letter. Beeson and Hughes apparently argue that the 1991 agreement, and its “substantial breach” termination clause, may never have been terminated, leaving Crouch without authority to cancel CLI’s license for “any reason or no reason.” Crouch, however, testified that he terminated the 1991 agreement by letter on July 2, 1992, and CLI’s General Manager testified that CLI received the July 2, 1992 letter.

We find the testimony cited by Beeson and Hughes insufficient to create a question of fact as to when the 1991 licensing agreement was terminated. See Southern Intermodal Logistics, supra. The evidence shows that the agreement was terminated by the Trust on July 2, 1992, before Beeson and Hughes entered the business venture at issue in this case.

4. Finally, Beeson and Hughes argue in cursory fashion that Davis conveyed his patents to the Trust in violation of OCGA § 18-2-22. They contend that the conveyance was “fraudulent and must be set aside and a constructive trust imposed on the patents and all proceeds received by the Trust. Crouch, as trustee, is the proper party with respect to these remedies.” This claim has no merit.

OCGA § 18-2-22 renders null and void conveyances made to defraud creditors. When a creditor presents the requisite proof for setting aside a conveyance under this Code section, “ ‘the law conclusively presumes a fraudulent intent and declares the [conveyance] void so far as creditors who held demands against the debtor at the time of the conveyance are concerned. (Cit.)’ [Cit.]” (Eihphasis supplied.) Barclay v. First Nat. Bank &c., 265 Ga. 744 (462 SE2d 374) (1995).

Decided July 11, 1997

Reconsideration denied July 25, 1997

Brown & Brown, George T. Brown, Jr., Alan T. Sorrells, for appellants.

Shapiro, Fussell, Wedge, Smotherman & Martin, Robert B. Wedge, Mary L. Hahn, Griffin, Cochrane & Marshall, Melissa S. Harben, Foster & Foster, Donald R. Foster, for appellee.

Beeson and Hughes argue that when Davis created the Trust in 1989, he had “severe financial difficulties from judgments, pending litigation and . . . tax liability” and began to improperly transfer patents into the Trust to keep them away from his creditors. Yet, Beeson and Hughes have presented no evidence that they are or have been creditors of Davis. The General Assembly defined the relationship between debtor and creditor as follows: “Whenever one person, by contract or by law, is liable and bound to pay to another an amount of money, certain or uncertain, the relation of debtor and creditor exists between them.” OCGA § 18-2-1. Beeson and Hughes adamantly deny that the funds they advanced to Davis constituted loans, contending instead that they invested those funds in the venture. Although they now argue through this suit that Davis is indebted to them, their legal claims have not been resolved.

As articulated by the Supreme Court, OCGA § 18-2-22 applies to creditors holding demands against the debtor at the time the allegedly fraudulent conveyance occurred. Barclay, supra. Beeson and Hughes do not fit this definition. Furthermore, Beeson testified that he knew Davis had conveyed the patents to the Trust because of the pending judgments. Under these circumstances, Beeson and Hughes can hardly argue that they were defrauded by the patent transfer. Accordingly, the trial court properly granted summary judgment to Crouch on this claim.

Judgment affirmed.

Birdsong, P. J, and Senior Appellate Judge Harold R. Banke concur.

       We note, and Beeson and Hughes concede, that Crouch’s alleged misrepresentations were made after, they accepted Davis’ offer and advanced funds to the venture. They contend, however, that they continued to invest in the venture in reliance upon Crouch’s subsequent statements.

       The record does not clearly establish when the second licensing agreement was finally executed. Crouch testified that he signed the agreement on behalf of the Trust in November 1992. Although we can find no evidence as to when the agreement was signed by CLI representatives, it is clear that it was executed by the end of August 1993.

       We have not considered, and need not consider for purposes of this appeal, whether the Trust’s decision to terminate the 1991 licensing agreement was authorized by the agreement’s “substantial breach” clause.


author:
Andrews, Chief Judge.
      McMurray, Presiding Judge, Beasley, Judge,

text:
    A97A0594.
    HAGAN v. GOODY’S FAMILY CLOTHING, INC.
    (490 SE2d 107)
   Andrews, Chief Judge.

Paul Hagan appeals from the grant of summary judgment to Goody’s Family Clothing Store (“Goody’s”) on its motion for summary judgment. Hagan claims there is an issue of fact as to whether Goody’s had actual knowledge of the wet area on the floor which caused his fall.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no 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. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a [genuine] jury issue on at least one essential element of plaintiff’s case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.” (Citations and emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Hagan testified he had been in the store only about a minute when he fell. Hagan did not recall seeing anything on the floor before he fell. After he fell, he glanced over and saw a wet spot on the floor, approximately 18 inches in diameter. Hagan testified there was nothing blocking his view of the substance and nothing in the aisle to prevent him from seeing it had he looked down. The reason he was not looking at the floor as he walked was because he was concentrating on finding the pants department. Hagan said there were no store employees in the area when he fell. Hagan stated that an employee came up to him after he fell and told him a child had thrown up on the floor. He said the manager came out after the fall and told someone to clean the floor. Hagan’s wife, who was walking beside him when he fell, went over to see what he had slipped on. She informed him it was vomit. Hagan submitted no other evidence in response to the motion for summary judgment.

In support of its motion for summary judgment Goody’s submitted the affidavit of Stacy Franklin, a sales clerk at the store who was working in the men’s department at the time of Hagan’s fall. Franklin stated in her affidavit that she walked back to the dressing rooms about a minute or two before Hagan’s fall. Just before she walked back to the dressing room, she was looking at the aisle where Hagan fell and did not see any foreign substance on the floor. She estimated that it was less than two minutes from the time she walked back to the dressing room until the time she heard of Hagan’s fall.

“[I]n order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.” Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). In other words, recovery is permitted only when the dangerous condition is known to the owner or occupant of the premises and not known to the person injured. Id. at 622.

Goody’s has submitted the affidavit of a clerk who stated that she looked at the aisle where Hagan fell less than two minutes before the fall and saw no foreign substance on the floor. Hagan claims this attempt to show lack of actual or constructive knowledge must fail because other employees told him a child had thrown up in the store. But, the only evidence submitted in support of this assertion is the hearsay evidence Hagan gives in his deposition.

“Evidence offered on motion for summary judgment is held to the same standards of admissibility as evidence at trial, and evidence inadmissible at trial is generally inadmissible on motion for summary judgment.” (Citations and punctuation omitted.) Hall v. Cracker Barrel &c., 223 Ga. App. 88, 92 (476 SE2d 789) (1996). Hearsay is never admissible and has no probative value unless it comes within a recognized exception to the rule. Jeweler’s Financial Svcs. v. Chapes, Ltd., 181 Ga. App. 872, 873 (354 SE2d 200) (1987).

The dissent states that this evidence can be considered on motion for summary judgment because it is admissible under the res gestae exception to the hearsay rule. “OCGA § 24-3-33 states: The admissions by an agent or attorney in fact, during the existence, and in pursuance of his agency, shall be admissible against the principal. OCGA § 10-6-64 states: The agent shall be a competent witness either for or against his principal. His interest shall go to his credit. The declarations of the agent as to the business transacted by him shall not be admissible against his principal, unless they were a part of the negotiation, and constituting the res gestae, or else the agent is dead. The Code sections must be construed together, and the second effectively limits the scope of the first.” (Citations and punctuation omitted.) Brooks v. Kroger Co., 194 Ga. App. 215, 216 (390 SE2d 280) (1990).

In Johnston v. Grand Union Co., 189 Ga. App. 270 (375 SE2d 249) (1988), cert. denied, 189 Ga. App. 912, a case directly on point, the plaintiff claimed that a store employee came up to her immediately after she was injured by the store’s automatic doors and said there was something wrong with the door and she (the employee) had said that “ ‘if the door wasn’t fixed, someone was going to get hurt.’ ” Id. In affirming the trial court’s decision that this evidence was not part of the res gestae, we held that “[cjertainly the sayings of the unknown red-haired person were not part of the res gestae, since the alleged utterer is unknown, it cannot be shown that they qualify as being free from all suspicion of device or afterthought. OCGA § 24-3-3.” (Punctuation omitted.) Id. at 271. Moreover, “the putting forward of some unidentified, unspecific person as an ‘employee,’ who allegedly made certain remarks that would bind or incriminate the employer, and as to whom there is no showing the person can be brought forth at trial or even located, or in fact exists, is not enough to raise a genuine issue of material fact controverting the defendant’s positive testimony that there was no defect of which it had actual or constructive superior knowledge.” (Citations omitted.) Id. at 272. See also Taylor & Mathis, Inc. v. Doyle, 219 Ga. App. 445 (465 SE2d 484) (1995) (physical precedent only); Sarantis v. Kroger Co., 201 Ga. App. 552, 553 (411 SE2d 758) (1991); Hall v. Rome Auto. Co., 181 Ga. App. 621, 622 (353 SE2d 542) (1987); Collins v. S. H. Kress & Co., 114 Ga. App. 159, 160 (150 SE2d 373) (1966).

The cases cited by the dissent are distinguishable. For example, in Quiktrip Corp. v. Childs, 220 Ga. App. 463 (469 SE2d 763) (1996), the statement objected to was made by one of three employees on duty in the store at the time. Id. at 465. Therefore, it was not a statement made by some unknown person who could not be located, brought forward at trial, or possibly did not even exist. Further, since each case concerning the res gestae exception to the hearsay rule must be decided on its own facts and the admissibility of such testimony is left to the sound discretion of the trial judge, we cannot say that, in this instance, the trial court abused its discretion. Allen v. State, 174 Ga. App. 206, 207 (329 SE2d 586) (1985).

Therefore, the only competent evidence in. the record as to whether or not Goody’s had actual or constructive knowledge of the hazard is that of Franklin who states she saw no foreign substance on the floor less than two minutes before Hagan’s fall. Thus, Goody’s has pierced Hagan’s pleadings on an essential element of his claim.

Accordingly, viewing all the facts and reasonable inferences from those facts in a light most favorable to Hagan, we find the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp., supra at 495. The trial court did not err in granting Goody’s motion for summary judgment.

Judgment affirmed.

Birdsong, P. J., Smith and Ruffin, JJ., concur. McMurray, P. J., Beasley and Eldridge, JJ., dissent.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent from the affirmance of summary judgment in favor of defendant Goody’s Family Clothing, Inc. in plaintiff Paul Hagan’s tort action to recover for personal injuries received when he slipped in vomit on the floor of defendant’s premises. At his deposition, plaintiff testified that, after he fell, “one of the employees!, a saleswoman,] came over and told us at this time that some kid, he came in the store with his parent and his mother had been trying on clothes and this kid had got sick and vomited in the floor and they had done exited the store. . . .” “And so they finally got the manager out and . . . they were all telling this same story about this kid had been in the store, but there was no barricades up around this vomit; there was nobody standing there telling anybody to watch their step. They knew of it, but for what reason [plaintiff did not] know, that anybody didn’t clean it up.”

In my view, these statements by defendant’s unidentified employees in the presence of the manager investigating the incident are admissible under OCGA § 24-3-3 as part of the res gestae and indicate prior actual knowledge of the existence, location, and nature of the hazardous foreign substance in this case.

“Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.” OCGA § 24-3-3. “That part of the [Code] section which admits declarations so nearly connected with [an] act as ‘to be free from all suspicion of device or afterthought’ in evidence is but a statement of the ‘spontaneous-declaration doctrine’ which is an exception to the rule against hearsay.” Glens Falls Indem. Co. v. Gottlieb, 80 Ga. App. 634, 635 (1), 636 (1) (a) (56 SE2d 799). “The identity of a person making an extrajudicial statement need not be established by the testimony of the witness who establishes the existence of the statement. It may be established by circumstantial evidence or by the testimony of other witnesses.” Lundy v. Tucker, 34 Ga. App. 721, hn. 1 (130 SE 924). “Hearsay statements made to an investigating officer shortly after the incident are part of the res gestae and are admissible at trial. Powell v. Jackson, 142 Ga. App. 34, 35 (234 SE2d 837) (1977); Land v. McClure, 135 Ga. App. 243, 244 (2) (217 SE2d 600) (1975).” Brown v. City of Fitzgerald, 177 Ga. App. 859, 861 (3), 862 (341 SE2d 476).

“The employee[s’] declarations [here], in essence, sprang from [plaintiff’s] revelation about his accident and [purportedly] explained why the employees had not [cleaned up the 18-inch patch of vomit]. Under the circumstances, it is clear that the statements] [were] voluntarily made and that there was no time for afterthought or design by the employee[s] prior to making [them].” Quiktrip Corp. v. Childs, 220 Ga. App. 463, 465 (3), 466 (469 SE2d 763). My review of the case sub judice reveals admissible evidence indicating defendant’s prior actual knowledge of the alleged hazardous substance, thereby rendering summary judgment inappropriate. See Brooks v. Sessoms, 47 Ga. App. 554 (1) (171 SE 222); Lundy v. Tucker, 34 Ga. App. 721, hn. 3, supra. Compare Collins v. S. H. Kress & Co., 114 Ga. App. 159 (1), 160 (150 SE2d 373). In Collins, there was absolutely no “evidence showing affirmatively that such [extrajudicial] statement was in fact made by an agent of the defendant, and that it was in fact made in reference to [that] plaintiff’s fall.” Id. As my colleague's in the majority would nevertheless affirm the unwarranted grant of summary judgment in the case sub judice, I respectfully dissent.

I am authorized to state that Judge Beasley and Judge Eldridge join in this dissent.

Beasley, Judge,

dissenting.

I concur in the dissent of Presiding Judge McMurray. The primary issue at this stage, as we review the grant of summary judgment to defendant proprietor, is whether there is admissible evidence of a declaration against interest or res gestae statement made by an agent of defendant to prove prior, superior knowledge of the foreign substance by the proprietor. If there is, then the jury must decide if the proprietor breached its duty of care for its invitee.

Hagan, the injured plaintiff, testified in deposition that he did not know what the substance was that he had slipped on until “the employees” told him “somebody had spit up on the floor.” In explaining this, he testified as recited by Presiding Judge McMurray. In addition, he related that the manager, a woman, told them to go to Humana Hospital and that Goody’s should be billed. He did not know the manager’s name or what she looked like but said his wife did. Sales clerk Stacy Franklin testified by affidavit that the assistant store manager on duty, whom she notified of Hagan’s fall right after it happened, was Ann Tapley. Although Franklin testified that a few minutes prior to Hagan’s fall she was able to observe the aisle “and did not see any foreign substance or liquid on the floor,” she did not testify that she was looking for such or that none was there. There is contrary evidence showing that the substance was present when Hagan fell and that whoever was the source of it had time to leave the area.

Lundy v. Tucker, 34 Ga. App. 721, hn. 1 (130 SE 924) (1925), holds that an extrajudicial statement need not be established by the witness who establishes the existence of the statement but may be shown “by circumstantial evidence or by the testimony of other witnesses.” The witness in Lundy who heard the statement, which was against the declarant’s interest in the lawsuit, did not know the woman who made it or whether that woman was the defendant. Even though this testimony was cumulative of another witness’ testimony that he heard defendant make the statement, the court reversed the denial of a new trial because the trial court had excluded the first witness’ testimony and this was error prejudicial to plaintiff.

Decided July 3, 1997

Reconsideration denied July 25, 1997

Samuel W. Cruse, for appellant.

Fulcher, Hagler, Reed, Hanks & Harper, David H. Hanks, Elizabeth McLeod, for appellee.

Collins v. S. H. Kress & Co., 114 Ga. App. 159 (150 SE2d 373) (1966), like this case, involved a slip and fall in a store. Plaintiff produced an alleged statement made by some unidentified person soon after the incident to the effect that “ ‘I told you ten minutes ago to get that stuff up, that somebody was going to break their neck.’ ” Id. This was properly excluded as an admission of the proprietor’s knowledge of the presence of a foreign substance because there was no evidence that the declarant was an agent of defendant. There must be some affirmative evidence of this fact, “though it is not essential that the identity of the person making the statement be shown.” Id. at 160 (1).

Viewing the evidence in favor of Hagan as the nonmoving plaintiff, Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), a jury could draw a reasonable inference that assistant store manager Ann Tapley- was one of the persons who explained to the Hagans the source of the foreign substance, indicating a prior knowledge of it by some employee, even if not herself. The jury could also reasonably infer that, because the child and his mother were no longer present, the child’s sickness had occurred long enough in advance of Hagan’s fall for the proprietor to clean it up or warn invitees of its presence.


author: Ruffin, Judge.

text:
    A95A2864.
    PARSONS, BRINCKERHOFF, QUADE & DOUGLAS, INC. et al. v. HARDAWAY COMPANY.
    (490 SE2d 558)
   Ruffin, Judge.

In Parsons, Brinckerhoff &c., Inc. v. Hardaway Co., 221 Ga. App. 74 (470 SE2d 904) (1996), we reversed the trial court’s decision denying appellants’ motion for summary judgment. The Supreme Court reversed our decision in Hardaway Co. v. Parsons, Brinckerhoff &c., Inc., 267 Ga. 424 (479 SE2d 727) (1997). Accordingly, our judgment in this case is vacated, the judgment of the Supreme Court is made the judgment of this Court, and the trial court’s denial of appellants’ motion for summary judgment is affirmed.

Decided July 25, 1997.

Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, James R. Doyle II, Gregory H. Wheeler, for appellants.

King & Spalding, Joseph B. Haynes, Charles K. McKnight, Jr., for appellee.

Judgment affirmed.

Pope, P. J, and Beasley, J., concur.


text:
    A97A0741.
    WILLIAMS v. STEPLER.
    (490 SE2d 167)
   Ruffin, Judge.

John Williams sued his ex-wife, Sharon Stepler, for intentional interference with his custody rights of their minor son, intentional infliction of emotional distress, defamation, and invasion of privacy by casting him in a false light. Williams appeals from the trial court’s order granting summary judgment to Stepler. For reasons which follow, we affirm.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no 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. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” (Emphasis in original.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

The record in this case shows that when they divorced in 1990, Williams and Stepler entered into an agreement providing for joint custody of their six-year-old son. The agreement was incorporated into the final decree issued by the Superior Court of Gwinnett County (“1990 decree”). On August 28, 1995, Stepler, an attorney, filed a petition, pro se, for relief under the Family Violence Act alleging that their son told her Williams “had put his hand inside [the son’s] pants while they were watching T.V.”

On September 25, 1995, after hearing evidence and arguments on Stepler’s family violence petition, the superior court judge entered a written temporary protective order which contained findings of fact and conclusions of law. The order, which was prepared by Stepler, states in part: “The Court finds that [Williams] did . . . place his hand inside [the child’s] shorts, touching [him] inappropriately. The Court further finds that this touching caused [the son] severe emotional distress.” The order further provided that Williams’ conduct constituted simple battery and cited as authority Wells v. State, 204 Ga. App. 90 (418 SE2d 450) (1992). The trial court accordingly awarded temporary physical custody to Stepler.

On October 12, 1995, Williams filed a complaint in the Superior Court of Gwinnett County requesting a change of custody. On that same date, Williams filed an Application for Discretionary Appeal of the superior court’s September 25, 1995 temporary protective order. We granted Williams’ application and, after review, reversed the trial court’s grant of the protective order. Williams v. Stepler, 221 Ga. App. 338 (471 SE2d 284) (1996) (physical precedent only). On October 13, 1995, the superior court transferred Williams’ change of custody action to the juvenile court. On November 2, 1995, Williams filed a superior court contempt action against Stepler, alleging in part that she wrongfully denied him physical custody of their son. Williams contended that his appeal of the protective order acted as an automatic supersedeas of the order and that the custody and visitation provisions of the 1990 decree controlled. Pursuant to OCGA §§ 15-1-9.1 and 15-11-6 (b), the superior court subsequently transferred to the juvenile court, with an order of designation, “for investigation and determination” those portions of the contempt action which called into question issues of “custody, visitation and child support.”

Following a hearing, the juvenile court found that Williams’ appeal was not an automatic supersedeas of the protective order and that Stepler’s custody of the child pursuant to that order did not constitute contempt of the 1990 decree. Williams did not appeal the juvenile court’s order, but filed this action against Stepler for intentional interference with his custody rights of their minor son.

1. We agree with the trial court that the juvenile court’s order barred Williams’ claim against Stepler for intentional interference of his custody rights.

OCGA § 9-12-40 provides that “[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” Although OCGA § 9-12-40 embodies the doctrine of res judicata, the related doctrine of estoppel by judgment similarly establishes the conclusiveness of previously decided issues. See Jim West Housemovers v. Cobb County, 259 Ga. 314 (380 SE2d 251) (1989). “The doctrine of estoppel by judgment differs from the plea of res judicata, in that, while res judicata applies only as between the same parties and upon the same cause of action to matters which were actually in issue or which under the rules of law could have been put in issue, estoppel by judgment applies as between the same parties upon any cause of action to matters which were directly decided in the former suit.” (Citations and punctuation omitted.) Id. “Finality is the goal and the essence of the doctrines of res judicata and estoppel by judgment. Both doctrines generally prevent an unsuccessful litigant from attempting to re-litigate issues previously litigated by a court of competent jurisdiction.” Id.

In this case, the doctrine of estoppel by judgment prevents Williams from re-litigating the custody issue which was decided by the juvenile court in the contempt action. It is clear from the record that the instant case includes the same parties that were involved in the juvenile court contempt action. Furthermore, although this case concerns a cause of action for intentionally interfering with custody rights, the propriety of Stepler’s custody of the parties’ minor child was an issue directly decided adversely to Williams in the former contempt action. Finally, while the juvenile court would not otherwise have had jurisdiction to decide if Stepler was in contempt of the superior court’s custody order (see Gignilliat v. Gentry, 217 Ga. App. 518, 519-520 (1) (457 SE2d 833) (1995)), the designation order gave the juvenile court judge “all of the powers and authority of a judge of the court in which he [was] presiding.” OCGA § 15-1-9.1 (g). Accordingly, because the custody issue was previously decided by a court of competent jurisdiction, and Williams failed to appeal from that decision, he is barred from re-litigating the issue here and the trial court did not err in granting Stepler summary judgment on this claim. In so finding, we render no opinion on whether the juvenile court properly decided the issue, because be it “correct or otherwise, its judgment until reversed is regarded as binding in every other court.” (Citations and punctuation omitted.) Jim West Housemovers, supra at 315.

2. We also find no merit in Williams’ assertion that the trial court erred in granting Stepler summary judgment on his claim for intentional infliction of emotional distress. Here again Williams argues that evidence of Stepler’s interference with his custody rights sufficiently supported this claim.

The conduct complained of in support of a claim for intentional infliction of emotional distress must be extreme and outrageous. Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 706 (2) (409 SE2d 835) (1991). “ ‘Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and leave him to exclaim “Outrageous!” ’ ” (Emphasis supplied.) Id. “Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law. [Cit.]” Id.

In this case, Stepler contended that she maintained custody of the minor son pursuant to the superior court’s temporary protective order. Although we subsequently reversed the order because the trial judge did not allow his interview with the child to be recorded, no evidence indicates that Stepler knew the resulting order was invalid and would be vacated. See Williams, supra at 339-340. Moreover, as we ruled in Division 1, Williams is barred from claiming that Stepler interfered with his custody rights because that issue was already decided adversely to Williams by a court of competent jurisdiction. See Jim West Housemovers, supra. Finally, even if Williams’ appeal of the protective order resulted in an automatic supersedeas of that order, we do not find that Stepler’s continued custody under the otherwise facially valid order constituted outrageous conduct. Simply stated, the issues presented by the labyrinth of pleadings, motions, and appeals filed in the ongoing litigation between the parties have been far from clear. This certainly is true regarding the issues related to Stepler’s custody of the child pursuant to the temporary protective order. Under these circumstances it is difficult to imagine how the recitation of the facts to an average member of the community would arouse his resentment against Stepler and leave him to exclaim “Outrageous!” Yarbray, supra.

We accordingly conclude that the trial court did not err in granting Stepler summary judgment on Williams’ claim for intentional infliction of emotional distress. See Fisher v. Toombs County Nursing Home, 223 Ga. App. 842, 846 (3) (479 SE2d 180) (1996).

3. Finally, Williams asserts that the trial court erred in granting Stepler summary judgment on his defamation and false light claims, which were based on Stepler’s preparation of the protective order in the family violence action. We disagree.

The record shows that, following the hearing, the trial court directed Stepler to draft the protective order. After preparing a draft order, Stepler sent a copy to Williams’ attorney for comments and suggestions. When she received no response from Williams’ attorney, Stepler sent the proposed order to the trial judge and a copy to Williams’ attorney. The trial judge subsequently adopted the proposed order verbatim.

Williams contends that the order defamed him because it contained a finding that he improperly touched his son and a citation to Wells v. State, supra, a simple battery case in which the defendant was convicted of pinching a woman’s breast. Williams argues that because the trial judge did not specifically include these references in his oral order from the bench, Stepler’s inclusion of them in her proposed written order gave rise to his tort claims against her. We disagree and find that the submitted order was absolutely privileged.

OCGA § 51-5-8 provides that “[a]ll charges, allegations, and averments contained in regular pleadings filed in a court of competent jurisdiction, which are pertinent and material to the relief sought, whether legally sufficient to obtain it or not, are privileged. However false and malicious such charges, allegations, and averments may be, they shall not be deemed libelous.” “The privilege is intended ‘for the promotion of the public welfare, the purpose being that members of the legislature, judges of courts, jurors, lawyers, and witnesses may speak their minds freely and exercise their respective functions without incurring the risk of a criminal prosecution or an action for the recovery of damages.’ [Cit.]” Stewart v. Walton, 254 Ga. 81, 82 (2) (326 SE2d 738) (1985).

It is clear from a review of past decisions that, in light of the foregoing policy considerations, we have not strictly limited the privilege under OCGA § 51-5-8 to “pleadings” as they are defined under OCGA § 9-11-7 (a). Rather, the absolute privilege afforded by OCGA § 51-5-8 has been more broadly construed to cover a notice of lis pendens, an affidavit in support of an arrest warrant, and the words of a judge in the course of a judicial proceeding. Alcovy Properties v. MTW Investment Co., 212 Ga. App. 102, 103 (1) (441 SE2d 288) (1994); Watkins v. Laser/Print-Atlanta, 183 Ga. App. 172, 173 (2) (358 SE2d 477) (1987); Bell v. Anderson, 194 Ga. App. 27 (389 SE2d 762) (1989). Indeed, we have generally described the coverage of the privilege to include “official court documents” and acts of “legal process.” Phillips v. MacDougald, 219 Ga. App. 152, 155 (2) (c) (464 SE2d 390) (1995); Rothstein v. L. F. Still & Co., 181 Ga. App. 113, 115 (2) (b) (351 SE2d 513) (1986).

We believe that a proposed order prepared by a party, in the course of a judicial proceeding, at the direction of the judge, is absolutely privileged as an official court document. Stepler was merely attempting to comply with the trial judge’s directive in preparing the order, which incidentally dealt with an extremely sensitive subject matter that would likely offend any individual, however phrased. Allowing for the recovery of damages against an attorney in Stepler’s position would certainly frustrate the exercise of this duty. Moreover, once the findings were adopted by the court, they became findings of the court, which under existing precedent are afforded absolute privilege. See Bell, supra.

Decided July 25, 1997

John T. Williams, pro. se.

Sharon S. Stepler, pro se.

Accordingly, we conclude that the trial court did not err in granting Stepler summary judgment on Williams’ claims for defamation and invasion of privacy.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.


author: Judge Harold R. Banke.

text:
    A97A1081.
    SAMPLES v. THE STATE.
    (490 SE2d 172)
   Judge Harold R. Banke.

Agbert Larry Samples, Jr. was convicted of driving while intoxicated (less safe to drive) (“DUI”). On appeal, he enumerates two errors.

This case arose after a deputy working the graveyard shift observed Samples drive through a stop sign without completely stopping and then turn so quickly that his wheels squealed and the rear of his car fishtailed. The officer observed Samples repeat this driving pattern further up the road. After the officer stopped the car, he noticed that Samples was unstable in his footing, his eyes were red and bloodshot, and he smelled like he had been drinking. Samples’ speech was broken and hard to understand, and he failed two field sobriety tests. The officer then arrested Samples for DUI and administered the Miranda and implied consent warnings. After the officer asked Samples if he would submit to the tests, Samples allegedly refused to answer and did not take a test.

Prior to trial, Samples moved in limine to exclude at trial “evidence of . . . [his] silence or refusal to answer.” He argued that the State should be precluded from commenting upon his silence after administering the Miranda warning. The trial court granted the motion, excluding evidence of Samples’ refusal to take the test. The court reasoned that because Samples was Mirandized prior to his mute refusal to submit to testing, due process protected his post-arrest silence.

During the arresting officer’s direct examination, while exploring the details of the arrest, the State asked whether Samples had been Mirandized. The officer unresponsively replied, “I advised him of his Miranda Warning and Implied Consent.” At that point, Samples moved for a mistrial, arguing that the mere mention of implied consent so prejudiced the jury as to deny him a fair trial. The court denied the motion, but gave a curative instruction, explaining it had previously determined that the implied consent warning given was legally insufficient and, as a result, no alcohol concentration test had been administered. The court directed the jury to refrain from drawing any harmful inference from that fact. Held:

1. We reject Samples’ contention that the mere mention of the implied consent warning required a mistrial. The purpose of the motion in limine and the order granting it was to protect Samples’ exercise of his right to remain silent. We fail to see how the officer’s nonresponsive use of the two words “implied consent” abridged that right when he made no mention of Samples’ silence or any blood alcohol test. Jordan v. Johnson, 223 Ga. App. 875, 876 (479 SE2d 175) (1996) (physical precedent only) (party who complains of violation of order in limine bears the burden of showing the court ruled so as to limit the evidence in the particulars claimed).

Moreover, even if the injection of the words “implied consent” was improper, the curative instruction rendered any error harmless. Crawford v. State, 256 Ga. 585, 587 (2) (351 SE2d 199) (1987). “ ‘ “Where a motion for mistrial is made on the ground of inadmissible matters being presented to the jury, the corrective measure to be taken by the trial court... is largely a matter of discretion, and where (, as here,) proper corrective measures are taken and there is no abuse of that discretion, a refusal to grant a mistrial is not error.” ’ (Citations omitted.) [Cit.]” Griffin v. State, 221 Ga. App. 138, 141 (3) (470 SE2d 744) (1996) (physical precedent only); see Lashley v. State, 196 Ga. App. 672, 673 (1) (396 SE2d 590) (1990).

2. We likewise reject Samples’ contention that reversal is required because the trial court improperly commented on the evidence in administering the above-mentioned curative instruction. The record shows that the court never expressed an opinion on what the evidence showed or any issue related to Samples’ guilt. Dixon v. State, 196 Ga. App. 15, 19 (10) (b) (395 SE2d 577) (1990) (courts are prohibited from expressing or intimating an opinion about what has or has not been proved). It simply related an undisputed fact to the jury, that the implied consent warning Samples received was inadequate. See Thompson v. State, 258 Ga. 816, 817 (3) (375 SE2d 219) (1989). In any event, Samples failed to demonstrate how he was harmed by the instruction. Ely v. State, 222 Ga. App. 651, 653 (3) (475 SE2d 647) (1996).

Decided July 25, 1997

Debra G. McDonald, for appellant.

Kenneth W. Mauldin, Solicitor, Ruth M. Bebko, Assistant Solicitor, for appellee.

Judgment affirmed.

Johnson and Blackburn, JJ, concur.

       The trial court instructed the jury as follows: “Members of the jury, at this time, the court instructs you with respect to the last response of this witness in regard to what he made reference to as the Implied Consent Rights. The court at a pretrial hearing in this case has determined that the Implied Consent Rights that were administered or given to the Defendant at the time of his arrest in this case were legally insufficierit as a matter of law. As a result of that, there was no test administered subsequent to the arrest of the Defendant to determine blood alcohol concentration. Now, the court further instructs you that this jury would not be authorized to draw any inference adverse or harmful to the Defendant with respect to this matter,. . . that the fact that no test was administered . . . nothing adverse or harmful to the Defendant can be drawn from the fact that it was not given due to the State’s omission to properly advise him of the Implied Consent Rights that would have been legally required.”


author: Beasley, Judge.

text:
    A97A1139.
    BOWMAN v. THE STATE.
    (490 SE2d 163)
   Beasley, Judge.

Randall Lee Bowman was indicted on charges of child molestation (OCGA § 16-6-4) and burglary (OCGA § 16-7-1 (a)). The child molestation count charged Bowman “with the offense of CHILD MOLESTATION (16-6-4), A FELONY for that the said accused . . . did unlawfully commit an indecent act, to wit: accused did solicit C. S. (initials), a child under the age of 14 years, to engage in sexual intercourse and sodomy, and did request the said C. S. (initials), to place a condom on his penis, contrary to the laws of [Georgia], the good order, peace and dignity thereof.” The burglary count accused Bowman of unlawfully entering the child’s residence with the intent to commit child molestation.

At trial, the 13-year-old victim testified that in the early hours of June 28, 1995, Bowman entered her bedroom through the window without authority. He asked the child if he could suck her breasts, if he could have sexual intercourse with her, and if he could perform oral sex on her. He showed her a condom and asked if she would put it on his penis. He lay down on her bed and exposed his penis to her. She went and told her mother, who testified that when she arrived at the child’s bedroom, she found Bowman lying on the child’s bed with his pants unzipped. After he asked her not to turn him in, she showed him the door and called police, who came and found a bent screen at the child’s bedroom window and a condom wrapper in the room on top of her teddy bear. Bowman later told the police it was his condom wrapper. He was convicted on both counts.

Bowman filed a motion for new trial on general grounds as to both counts and a motion in arrest of judgment as to child molestation on the ground that the indictment was legally insufficient to charge a violation of OCGA § 16-6-4. He appeals the denial of both motions but pursues no challenge to the burglary conviction.

1. “A challenge to the sufficiency of the substance of the indictment can be made after trial by means of a motion in arrest of judgment.” Bramblett v. State, 239 Ga. 336, 338 (1) (236 SE2d 580) (1977). See OCGA § 17-9-61. Bowman argues the indictment fails to allege an essential element of child molestation “because solicitation of a child to engage in sexual activities is not an indecent ‘act’ sufficient to constitute the crime of child molestation in the absence of any allegation of defendant’s intent with regard to such solicitation.”

“A motion to arrest judgment due to a defective indictment should be granted only where the indictment is absolutely void. [Cit.]” Campbell v. State, 223 Ga. App. 484, 485 (3) (477 SE2d 905) (1996). “In attacking an indictment after the verdict, every presumption and inference is in favor of the verdict. [Cit.] By failing to file a demurrer before trial, [Bowman] waived his right to a perfect indictment. [Cit.]” Staples v. State, 199 Ga. App. 551 (405 SE2d 551) (1991). See Clarington v. State, 178 Ga. App. 663, 667 (6) (344 SE2d 485) (1986) (“ ‘After conviction, an indictment will be construed most strongly in favor of the State’ ”); King v. State, 103 Ga. App. 272, 275 (1) (119 SE2d 77) (1961).

OCGA § 16-6-4 (a) defines child molestation as occurring when a person “does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” The issue is whether soliciting a child to engage in the conduct described in the indictment, which solicitation Bowman refers to as an “inchoate” act because no touching occurred, sufficiently describes an act of child molestation where no specific intent of Bowman is alleged.

Immoral or indecent acts constituting child molestation refer to “acts which offend against the public’s sense of propriety as well as to . . . acts . . . more suggestive of sexually oriented misconduct [to a child’s body] than simply assaultive in nature.” Chapman v. State, 170 Ga. App. 779, 780 (1) (318 SE2d 213) (1984). An “act generally viewed as morally and sexually indelicate, improper and offensive” can constitute child molestation. Id. “A child’s mind may be victimized by molestation as well.” Smith v. State, 178 Ga. App. 300, 301 (1) (342 SE2d 769) (1986). “The child molestation statute [was] enacted as part of a general legislative scheme to protect children under the age of 16 from physical and psychological damage resulting from sexual exploitation. [Cits.]” State v. Vines, 226 Ga. App. 779, 780 (487 SE2d 521) (1997). Thus, showing and describing the use of a condom to a child while having an erection, exposing one’s penis to a child, or requiring a child to dance naked for the defendant have been held to be child molestation, even though in none of these cases did the defendant touch the child. Smith v. State, supra; Gunter v. State, 215 Ga. App. 517, 519 (3) (451 SE2d 108) (1994); Thompson v. State, 187 Ga. App. 563 (2), 564 (370 SE2d 819) (1988).

Based on these considerations, we recently held valid a child molestation indictment “alleging that [the defendant] initiated a conversation with the child about sexual acts including fondling of private parts, intercourse and oral sodomy.” Vines, supra at 781. “The sexually exploitative nature of the alleged act is not altered by the fact that it involved speech unaccompanied by other acts. Accordingly, the allegation of the conversation alone, without any further allegation of physical contact with the child or other conduct by [the defendant], was sufficient to satisfy the statutory requirement in OCGA § 16-6-4 (a) that the accused committed an ‘immoral or indecent act.’ ” Id.

Bowman’s indictment accuses him of soliciting a child to engage in sexual intercourse and sodomy and of asking the child to place a condom on the defendant’s penis, which acts could offend the public’s sense of propriety, suggest sexually oriented misconduct to the child’s body, and be viewed as morally and sexually indelicate, improper and offensive. These acts, which victimize the child’s mind, are not inchoate but are in and of themselves violative of the statute. Vines, supra. Citing Wittschen v. State, 259 Ga. 448 (383 SE2d 885) (1989), Bowman claims such acts can at most constitute attempted child molestation. Wittschen, however, holds that soliciting a child on a public highway to engage in sexual misconduct may constitute attempted child molestation; it does not address whether such may also constitute child molestation.

Bowman argues that the indictment’s failure to allege that he committed the acts of solicitation with the intent to arouse or satisfy his or the child’s sexual desires is fatal. “It is an elementary rule of criminal procedure that an indictment should contain a complete description of the offense charged, and that there can be no conviction unless every essential element thereof is both alleged in the indictment and proved by the evidence. However, an indictment substantially in the language of the Code is sufficient in form and substance. Where the indictment alleges an offense, . . . and alleges that the act was unlawfully committed, and that it was contrary to the laws of the State, and employs language from which it must necessarily be inferred that the criminal intent existed, it is not void because it fails to expressly allege the criminal intent.” (Citations and punctuation omitted; emphasis in original.) Hammock v. State, 201 Ga. App. 614, 615-616 (1) (b) (411 SE2d 743) (1991). “In the context of ‘child molestation,’ the word [indecent] would alert a defendant that he or she was being charged with committing an unlawful act with a lustful intent against a child. Such an act would inherently be for someone’s sexual gratification. The only parties involved in the act of child molestation, i.e., those who could receive gratification from the act, would be the perpetrator or the child victim. . . . [T]he language that the act was contrary to state law and its good order, peace and dignity makes clear that the act was committed unlawfully. From the indictment as a whole, the existence of the requisite criminal intent is implicit. The indictment was not void as a matter of law.” Id. at 616. Compare Frost v. State, 200 Ga. App. 267, 268 (2) (407 SE2d 765) (1991) (indictment which states the defendant acted “unlawfully” sufficiently alleges intent necessary for first degree arson).

Not only does Bowman’s indictment contain the elements found sufficient in Hammock, but it also specifically refers to the child molestation Code section by its section number. Jones v. State, 206 Ga. App. 604, 605 (2) (426 SE2d 179) (1992), noted “that this entire issue [of the indictment’s sufficiency] could have been avoided by the simple expediency of referring to the relevant Code section in the accusation. [Cits.]” See State v. Howell, 194 Ga. App. 594, 595 (391 SE2d 415) (1990) (reference to Code section in indictment cures failure to allege specific intent).

Bowman cites Smith v. Hardrick, 266 Ga. 54 (464 SE2d 198) (1995), for the proposition that the indictment must always allege specific intent where such is an element of the crime. Hardrick found an indictment on a charge of aggravated assault fatally defective where it alleged only that the defendant placed his hands around the victim’s neck and used his hands to apply pressure to her neck contrary to the law. Hardrick is distinguishable in that one could not infer the required intent to murder, rape or rob from such allegations. See OCGA § 16-5-21. But accusations of soliciting children to engage in sex acts implicitly include an intent to arouse or satisfy the defendant’s or child’s sexual desires. Moreover, the Hardrick indictment referenced no Code section.

The indictment satisfied the three reasons given in Frost, supra at 267-268 (2), for requiring specificity, accuracy, and completeness in an indictment.

2. In his second enumeration of error Bowman claims that the trial court erred in denying his motion for new trial in that the evidence of mere solicitation was insufficient to support the jury’s verdict. The denial of a motion for new trial is subject to an abuse of discretion standard. OCGA § 5-5-21; Hayden v. Sigari, 220 Ga. App. 6, 9 (3) (467 SE2d 590) (1996).

Decided July 25, 1997.

Billy I. Daughtry, Jr., for appellant.

Lindsay A. Tise, Jr., District Attorney, Kathleen R. Johnson, Assistant District Attorney, for appellee.

Not only was the evidence of the acts of solicitation sufficient to convict Bowman of child molestation, but the evidence that Bowman exposed his penis to the child victim was alone sufficient for a conviction. Gunter v. State, supra at 519 (3); Hathcock v. State, 214 Ga. App. 188, 189-190 (2) (447 SE2d 104) (1994); Bentley v. State, 179 Ga. App. 287 (1) (346 SE2d 98) (1986). It was not error to deny a new trial.

Judgment affirmed.

McMurray, P. J, and Senior Appellate Judge Harold R. Banke concur.

       Though proven at trial, Bowman’s exposing his penis to the child was not alleged in the indictment, so we do not consider this fact in determining the sufficiency of the indictment, although it is relevant to the sufficiency of the evidence issue.


text:
    A97A1204.
    MADDOX v. THE STATE.
    (490 SE2d 174)
   Ruffin, Judge.

Robert Ross Maddox appeals his conviction and life sentence for possession of methamphetamine and possession with intent to distribute. In his enumerations of error, Maddox claims that the State failed to prove he intended to distribute the drug; that the erroneous admission of “uncharged crimes” evidence demanded a mistrial; and that no probable cause existed for the traffic stop which led to the seizure of the methamphetamine. He also seeks reversal of his life sentence. For reasons which follow, we affirm.

1. In challenging the sufficiency of the evidence, Maddox admits he possessed the methamphetamine but contends the State failed to prove he intended to distribute it. Construing the evidence and all reasonable inferences in favor of the jury’s verdict pursuant to the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), we must determine whether a. rational jury could have found, beyond a reasonable doubt, that Maddox possessed the methamphetamine with the intent to distribute it. See Curtis v. State, 208 Ga. App. 720, 721 (431 SE2d 719) (1993).

The evidence at trial showed that after stopping Maddox’s truck and searching him, officers found in the crotch of his pants four separate, small plastic bags of methamphetamine with a total weight of 4.3 grams. They also found in his jacket pocket a large bag of white powder, a syringe, and a vial of milky liquid. One of the arresting officers, Trooper Brown, told the jury about his extensive background in narcotics investigations, including his experience with methamphetamine dealers. Brown testified that the amount of methamphetamine Maddox possessed was consistent with distribution rather than use. Brown also testified that the large bag of white powder found in Maddox’s jacket was a substance used by methamphetamine dealers to “cut” the pure drug. Additionally, the State introduced evidence of Maddox’s 1987 conviction for possession of methamphetamine with intent to distribute. Although Maddox admitted he was formerly a “dope dealer,” he insisted the methamphetamine he possessed in this case was for his own personal use.

While Maddox is correct that mere possession will not support a conviction for possession with intent to distribute, the foregoing evidence supports the conviction. Evidence showed the drugs were divided into four small packages. See Bowers v. State, 195 Ga. App. 522 (1) (394 SE2d 141) (1990) (presence of drugs in small packages allows jury to infer intent to distribute). Maddox had a prior conviction for selling methamphetamine. Trooper Brown, an experienced narcotics investigator, testified without objection that the circumstances of Maddox’s possession showed an intent to distribute. See Davis v. State, 200 Ga. App. 44, 45 (2) (406 SE2d 555) (1991). Although Brown was never tendered as an expert, the prosecutor laid the foundation for his expert testimony, and the defense never objected to the opinions the officer gave based on his experience as a narcotics investigator. See Smith v. State, 226 Ga. App. 150, 151 (2) (485 SE2d 538) (1997) (conviction supported by testimony of untendered expert, to which defense did not object); see also Henry v. State, 265 Ga. 732, 736 (5) (462 SE2d 737) (1995) (witness, though not tendered as expert, “functioned essentially” as such). This evidence allowed the jury to find Maddox possessed the methamphetamine with intent to distribute and exclude the theory that Maddox possessed the drug only for his personal use. Compare Stephens v. State, 219 Ga. App. 881, 883 (1) (467 SE2d 201) (1996) (physical precedent only), in which the State neither tendered the officer as an expert nor laid a foundation for his opinion testimony.

2. Maddox contends a mistrial was required when an arresting officer testified he told Maddox that police “had received information in the past from a reliable confidential informant that [Maddox had] been running . . . guns.” We disagree. The trial court issued a curative instruction, warning the jurors to disregard the comment and reminding them that Maddox “is on trial only for the charges in the indictment. . . .” When the court asked whether any juror could not disregard the comment, none responded. Under these circumstances, the cautionary instruction was sufficient, and the trial court acted within its discretion by denying the motion for mistrial. See McDaniel v. State, 204 Ga. App. 753, 754 (2) (420 SE2d 636) (1992) (in child molestation prosecution, where witness improperly mentioned an additional, uncharged offense, curative instruction was sufficient). Moreover, it appears in this case that Maddox waived any insufficiency in the trial court’s curative instructions because he did not timely renew his motion for mistrial until the close of the State’s evidence. See Mansfield v. State, 214 Ga. App. 520, 521 (2) (448 SE2d 490) (1994) (failure to except to instructions or timely renew motion for mistrial precludes appellate review); Kent v. Hunt & Assoc., 165 Ga. App. 169, 171-172 (8) (299 SE2d 123) (1983) (renewed motion for mistrial made at close of evidence was untimely).

3. Maddox also moved for a mistrial when an officer testified that at the time police searched Maddox, he was found carrying a small amount of marijuana in addition to the methamphetamine. Without determining whether Maddox preserved this ground of error with a timely motion for mistrial and renewal of that motion following the trial court’s curative instructions, we find no error. See Kent, supra. Because the marijuana was found with the methamphetamine, its discovery was part of the res gestae. “Even though a defendant is not charged with every crime committed during a criminal transaction, every aspect of it relevant to the crime charged may be presented at trial. This is true even if the defendant’s character is incidentally placed in issue.” (Citations and punctuation omitted.) Carroll v. State, 202 Ga. App. 544, 547 (2) (415 SE2d 37) (1992). The State was entitled to present this evidence as part of the circumstances surrounding Maddox’s arrest. See Giddens v. State, 206 Ga. App. 409, 410 (425 SE2d 299) (1992).

As an additional ground of appeal, Maddox claims a mistrial was required because the State presented no evidence showing the green leafy substance was, in fact, marijuana. Because he never objected to the testimony on this ground at trial, he has waived this claim of error. This Court does not consider objections to evidence different from those made in the trial court. See Wilkins v. State, 220 Ga. App. 516, 517 (1) (469 SE2d 695) (1996).

4. The trial court did not err by admitting into evidence the methamphetamine, which Maddox contends was the product of an illegal traffic stop and nonconsensual search and seizure. We need not address the procedural issue: whether Maddox’s oral motion to suppress, made during trial, was sufficient to preserve this issue for trial. But see Turner v. State, 178 Ga. App. 888 (1) (a) (345 SE2d 99) (1986) (“ ‘By failing to file a written motion to suppress, a defendant waives an appeal on that ground.’ [Cit.]”). Here, the evidence construed in favor of the trial court’s ruling showed officers stopped Maddox only after they saw his truck weaving back and forth across the lanes of travel and onto the shoulder of the road. Maddox then consented to the search of his person, which netted the drugs. The trial court did not err in finding the stop justified, as evidence shows the officers saw Maddox violate the traffic laws. See OCGA § 40-6-48 (1); State v. Holcomb, 219 Ga. App. 231, 232-233 (464 SE2d 651) (1995); Lowe v. State, 214 Ga. App. 92, 93 (446 SE2d 532) (1994). The record also supports a finding that Maddox freely and voluntarily consented to the search. Id. at 94.

Decided July 25, 1997.

Kathleen J. Anderson, for appellant.

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

5. At the time Maddox was sentenced, OCGA § 16-13-30 (d) required that repeat drug offenders receive a life sentence, which the trial court imposed on September 26, 1995. That statute was amended effective July 1, 1996, to give the trial court greater discretion in imposing a lesser sentence. Maddox now claims, for the first time on appeal, that he should have the benefit of the 1996 amendment. We disagree. The amendment was not retroactive. See Jackson v. State, 223 Ga. App. 471 (2), 472 (477 SE2d 893) (1996).

Judgment affirmed.

Birdsong, P. J, and Eldridge, J., concur.


text:
    A97A1249.
    LIGHTFOOT v. THE STATE.
    (490 SE2d 177)
   Blackburn, Judge.

George Walter Lightfoot was convicted of armed robbery and obstruction of an officer in connection with his holdup at knifepoint, of a cashier in a convenience store. At trial, Lightfoot submitted a written request to charge on the lesser included offense of robbery by intimidation. The trial court declined to give such charge, finding that it was not adjusted to the facts, and Lightfoot enumerates this ruling as error.

The standard of review applied by the Georgia appellate courts to a trial court’s refusal to charge was set forth by the Supreme Court in Edwards v. State, 264 Ga. 131 (442 SE2d 444) (1994). There the Supreme Court held that “ ‘[a] written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense.’ [Cit.]” Id. at 132. However, “where the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense.” (Emphasis in original.) Id. at 133.

Relying primarily upon Edwards and Holcomb v. State, 230 Ga. 525 (198 SE2d 179) (1973), Lightfoot argues that the court was required to charge the jury on robbery by intimidation. In Holcomb, the Supreme Court held that because robbery by intimidation is a lesser included offense of armed robbery, “it necessarily follows that evidence authorizing a conviction of robbery by the use of an offensive weapon would authorize a conviction of robbery by intimidation.” Id. at 527. That being so, Lightfoot argues, the evidence adduced at his trial that he committed armed robbery was also evidence that he committed robbery by intimidation, thus requiring a charge on the lesser included offense under the rule set forth in Edwards.

We cannot agree. Lightfoot’s construction of Edwards and Holcomb, while not unfounded, does not accurately reflect the status of the law in this area. Although Holcomb does hold that the same evidence which authorizes a conviction for armed robbery will also authorize a conviction for robbery by intimidation, it goes on to state that “failure to charge on robbery by intimidation [is] not error [where] the evidence [does] not demand a charge on that offense.” (Emphasis in original.) Holcomb, supra at 527. Accordingly, though evidence of armed robbery might authorize a conviction for robbery by intimidation, in some cases the evidence of robbery by intimidation will not be such that a charge on that offense is demanded. In those cases, there can be no error when the trial court refuses to give a charge on the lesser included offense. See Thomas v. State, 226 Ga. App. 441 (487 SE2d 75) (1997) (unnecessary to charge robbery by intimidation where robbery occurred at gunpoint and defendant did not deny he was armed).

This point is well illustrated in three cases decided subsequent to Holcomb: Bixby v. State, 234 Ga. 812, 814 (2) (218 SE2d 609) (1975); Brock v. State, 232 Ga. 47, 48 (205 SE2d 272) (1974); and Clempson v. State, 144 Ga. App. 625, 626-627 (3) (241 SE2d 495) (1978). In each armed robbery case, this Court or the Supreme Court determined that no evidence of robbery by intimidation was presented, and that all the evidence showed robbery by use of an offensive weapon. Accordingly, it was determined that no error was shown from any of the trial courts’ refusals to charge on the lesser included offense of robbery by intimidation.

In this case, no evidence of robbery by intimidation was shown. The evidence shows that Lightfoot entered a convenience store with an extended knife in his hand, held up the cashier, took money from the cash drawer, and at one point, threatened to bury the knife in the cashier’s back if anyone entered the store. No evidence was presented to the effect that a weapon was not used in the robbery, as Lightfoot testified only that he did not remember any of the events connected with the robbery. Although he claims that a charge on robbery by intimidation was appropriate because the cashier testified that he was intimidated, this fact does not authorize a charge on robbery by intimidation on the facts of this case. “There is no evidence, and the jury would have had no reason to believe, that [the cashier] was persuaded to part with the cash . . . other than by having a [knife] pointed at him. ... It was not error to fail to charge a request on robbery by intimidation since such charge is unsupported by evidence.” Griffeth v. State, 154 Ga. App. 643, 645 (3) (a) (269 SE2d 501) (1980).

Decided July 25, 1997.

David C. Butler, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Ann B. Harris, Assistant District Attorneys, for appellee.

The other cases cited by Lightfoot do not change this result and do not alter our analysis in this regard. Taken to its logical conclusion, Lightfoot’s position would require a charge on the lesser included offense of robbery by intimidation in every armed robbery prosecution. However, it is clear that the law contains no such requirement. There was no evidence presented in this case that would have authorized a conviction for robbery by intimidation that would not also have demanded a conviction of armed robbery. Accordingly, Lightfoot’s enumeration is without merit.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.