text:
    A99A0569.
    FRAME et al. v. BOOTH, WADE & CAMPBELL, A GEORGIA GENERAL PARTNERSHIP.
    (519 SE2d 237)
   Smith, Judge.

The law firm of Booth, Wade & Campbell (“Booth”) brought suit on a promissory note against Christopher Frame and C.F., Inc., a South Carolina corporation of which Frame was president (collectively “Frame”). The trial court granted Booth’s motion for summary judgment, and Frame brings this appeal, contending the trial court erred in several respects. We find no merit in Frame’s contentions, and we affirm the judgment.

1. Frame’s first enumeration is conditional: He asserts that additional documents filed by Booth in reply to Frame’s response to the motion for summary judgment were filed less than thirty days before a ruling was issued on Booth’s motion, and if the trial court relied upon those documents in granting summary judgment, that was error. OCGA § 9-11-56 (c); see Custom Lighting &c. v. Hampshire Co., 204 Ga. App. 293, 295 (1) (418 SE2d 811) (1992). But in its order denying Frame’s motion to vacate the judgment, the trial court expressly denied relying on those documents, stating that they were considered “only in conjunction with [Frame’s] pending motion to dismiss, and not on [Booth’s] pending motion for summary judgment.”

2. Frame contends the trial court erred in awarding summary judgment to Booth on his defense of economic duress. We do not agree.

The record shows that the note forming the subject of the action was for a sum representing attorney fees billed by Booth and unpaid by Frame, together with accrued interest. These fees were incurred in defending an action filed against Frame in July 1990 by Golden Isles Petroleum, Inc., in the United States District Court for the Southern District of Georgia. Booth undertook representation of Frame in the fall of 1990, and received a $20,000 retainer from Frame. That litigation went on for some time, Frame’s financial condition worsened, and he did not pay Booth’s invoices. He offered Booth his general partnership interest in a real estate venture, but Booth declined and served notice of its intent to withdraw from representation in November 1991. In January 1992, after having completed the withdrawal and after Frame had retained new counsel, Booth began negotiating for the payment of its fees due and owing. These negotiations culminated in the execution of the note in April 1992. In 1993, when payments on the note were not forthcoming, Booth declared the note in default and accelerated all remaining payments. This action followed.

Answering Booth’s complaint, Frame denied executing and delivering the note only “to the extent that the promissory note, which is the subject matter of said allegations, was entered into under duress caused by the Plaintiff.” Frame admitted, in response to requests for admission, that he signed and delivered the note and that he had made no payments on the note. His primary defense was that he signed the note under “economic duress.”

Duress is recognized as a defense in Georgia; it derives from OCGA § 13-5-6, which provides, in pertinent part: “Since the free assent of the parties is essential to a valid contract, duress, either by imprisonment, threats, or other acts, by which the free will of the party is restrained and his consent induced, renders the contract voidable at the election of the injured party.” The duress encompassed by the statute is a form of fraud, in which coercion replaces deception to injure the signer. Tidwell v. Critz, 248 Ga. 201, 203 (1) (282 SE2d 104) (1981). But to enable the signer to void the contract, the duress

must consist of threats of bodily or other harm, or other means amounting to coercion, or tending to coerce the will of another, and actually inducing him to do an act contrary to his free will. The threats must be sufficient to overcome the mind and will of a person of ordinary firmness.

(Citations and punctuation omitted.) Id.

Economic duress is a form of the duress recognized in OCGA § 13-5-6:

“Business compulsion” or “economic duress” involves the taking of undue or unjust advantage of a person’s economic necessity or distress to coerce him into making a contract and is also recognized as a contractual defense. [Cits.] However, a duress claim of this nature must be based upon acts or conducts of the opposite party which are wrongful or unlawful. [Cits.]

Charter Med. Mgmt. Co. v. Ware Manor, 159 Ga. App. 378, 381 (3) (283 SE2d 330) (1981). Georgia courts are reluctant to void contracts, however. When the signer is sophisticated in business matters and has access to and in fact obtains advice of counsel, the defense of duress is not available to void the contract.

One may not void a contract on grounds of duress merely because he entered into it with reluctance, the contract is very disadvantageous to him, the bargaining power of the parties was unequal or there was some unfairness in the negotiations preceding the agreement.

(Citation and punctuation omitted.) Tidwell, supra at 204 (1).

Moreover, even if acts could otherwise have been construed as sufficient duress to void a note, reliance upon the defense of duress may be waived. In Tidwell, this court found such a waiver when the obligor, a “highly educated professional,” took three months to sign the employment contract in issue, during which time he consulted with counsel of his own choosing. Id. at 204 (1). In Ware Manor, a waiver was found when the debtor paid another note to the same creditor, and the paid note was part of the same transaction executed under the same alleged duress. Id. at 381-382 (3).

Attorneys have a statutory lien on clients’ papers and money in their possession, and they “may retain the papers until the claims are satisfied.” OCGA § 15-19-14 (a). But Frame maintains that Booth took advantage of his economic hardship by withdrawing from representation while holding his “file” and refusing to forward papers to his new counsel, although trial was approaching, until Frame agreed to sign the note. He relies upon Standard 22 of the State Bar Rules to show that this conduct was “wrongful or unlawful.” The standard provides as follows:

(a) If permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a proceeding before that tribunal without its permission.
(b) In any event, a lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled and complying with applicable laws and rules.
A violation of this standard may be punished by a public reprimand.

We do not agree that Frame has shown this conduct to be sufficient to satisfy the requirements for economic duress. First, the Supreme Court administers the Bar Standards. Violation of a standard alone “does not establish civil liability of attorneys for their professional misconduct, nor does it create remedies in consequence thereof,” Allen v. Lefkoff, Duncan, Grimes & Dermer, 265 Ga. 374 (1) (453 SE2d 719) (1995), and it does not provide a basis for criminal liability. Id. at 374, n. 3.

Second, Frame has not shown a violation of Standard 22. The record includes clear evidence that Booth complied with the notice provisions of the standard. Under the standard, an attorney is required to deliver to the client only those papers “to which the client is entitled.” If, under OCGA § 15-19-14 (a) the attorney is lawfully entitled to retain the papers until the fee is paid, the client is not “entitled” to those papers until then. The record shows that when Frame agreed to sign the note, his papers were turned over to his new attorney.

Perhaps more importantly, although Frame asserts he was prejudiced greatly by the withholding of his papers, he has presented no evidence of this prejudice or any other injury. He was represented by counsel, and counsel took no steps to have the papers turned over during the months in which the terms of the note were being negotiated.

Finally, Frame was a sophisticated businessman, as evidenced by the nature of the Golden Isles litigation, and he had access to and consulted with counsel of his choice for three months before signing the note. Even if we were to conclude that Booth’s actions constituted economic duress, we therefore would also conclude that he waived any reliance upon this defense. Tidwell, supra. No question exists that Booth presented a prima facie case to recover on the note. Frame admitted signature, delivery, and non-payment. Once the prima facie case was made out, the burden shifted to Frame to come forward with evidence supporting a defense preventing the grant of summary judgment. See Braswell v. Bank of Early, 229 Ga App. 445, 447 (494 SE2d 277) (1997). He did not do so, and the trial court did not err in entering summary judgment against him on his defense of economic duress.

Decided June 3, 1999 — Cert. applied for.

Savage & Turner, Robert B. Turner, Robert S. Kraeuter, for appellants.

McGuire, Woods, Battle & Boothe, Douglas N. Campbell, Edward H. Nicholson, Jr., for appellee.

3. Frame maintains that a jury issue existed with regard to the reasonableness of the attorney fees owed to Booth and that the trial court therefore erred in awarding summary judgment on this issue. We do not agree.

Frame relies upon Sosebee v. McCrimmon, 228 Ga. App. 705 (492 SE2d 584) (1997). In that case, an attorney was retained and the fee was agreed upon as an hourly rate. The attorney withdrew from representation and the client was forced to retain other counsel and pay a substantial fee to new counsel to cover the same ground that had been covered by original counsel. We held in Sosebee that under those circumstances, a jury issue existed because “there can arise an occasion when the value of the benefit received by a party must be reduced for reasons of equity or justice. [Cit.]” Id. at 709.

But in this case, the reasonableness of Booth’s fee simply is not at issue, because this action was a suit on a note that included a provision authorizing the 15 percent attorney fees permitted under OCGA § 13-1-11 (a). “A plaintiff who is entitled to a summary judgment on a document establishing ‘evidence of indebtedness,’ within the meaning of OCGA § 13-1-11 (a) is also entitled to a judgment for attorney fees thereon.” (Citations and punctuation omitted.) Dalcor Mgmt. v. Sewer Rooter, 205 Ga. App. 681 (1) (423 SE2d 419) (1992). The fee to be awarded therefore was only a matter of mathematical calculation, and the trial court did not err in granting summary judgment on the issue of attorney fees.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

       Although recognized in Ware Manor, we have found no Georgia decision voiding a contract under this theory. See, e.g., Miller v. Calhoun/Johnson Co., 230 Ga. App. 648, 650 (4) (497 SE2d 397) (1998) (financial difficulties alone do not constitute legal duress); Hovendick v. Presidential Fin. Corp., 230 Ga. App. 502, 505 (3) (497 SE2d 269) (1998) (economic distress not legal duress); Holtzendorf v. Seckinger, 195 Ga. App. 177, 183 (1) (393 SE2d 13) (1990) (threat of legal action not economic duress); Gen. Motors Acceptance Corp. v. Bowen Motors, 167 Ga. App. 463, 467-468 (1) (C) (306 SE2d 675) (1983) (no evidence of economic duress); Woods v. Wright, 163 Ga. App. 124, 125-126 (292 SE2d 545) (1982) (unfavorable bargaining position not legal duress because legal remedies available).

       A letter from Frame to Booth dated January 28,1992 indicates clearly that new counsel has been retained. The note was not executed until April 1992.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A99A0698.
    HARDING v. GODWIN et al.
    (518 SE2d 910)
   Andrews, Judge.

We granted this application for an interlocutory appeal of the trial court’s order denying Dr. Susan Harding’s motion to dismiss Melanie Godwin’s complaint for medical malpractice. For the following reasons, we reverse.

This case arose after Melanie Godwin’s husband Nicholas died of a heart attack approximately half an hour after leaving the emergency room at Brooks County Hospital. Ed Braswell, a paramedic, examined Nicholas Godwin and, according to Melanie Godwin’s deposition testimony, told Nicholas that he could wait until tomorrow and see Dr. Harding.

Before they left the hospital, Ms. Godwin, who knew Dr. Harding, saw and called to her, asking Harding to take a look at Nicholas because she was still worried about him. Harding talked to Godwin in the hallway, asking him questions and palpating his chest. Dr. Harding told Godwin to take some antacid and see her or his regular doctor in the morning.

After Nicholas Godwin died of a heart attack shortly after leaving the emergency room, Melanie Godwin filed a complaint against the hospital on September 16,1997, for wrongful death, pain and suffering, and medical and funeral expenses, alleging that Ed Braswell failed to properly assess her husband’s condition and obtain treatment for him. On June 19, 1998, the day before the statute of limitation expired, Godwin filed an amended complaint against Dr. Harding. Godwin did not obtain leave of court before filing the amended complaint.

Harding filed a motion to dismiss on July 15, 1998, claiming Godwin had never obtained leave of court to add her as a party. On August 12, 1998, Godwin filed a motion to add Susan Harding as a party. The court granted Godwin’s motion to amend on September 22, 1998. The court also found that although the two-year statute of limitation on Godwin’s claims expired on June 20, 1998, her claim against Harding related back and was not time-barred.

When an amended complaint adds a defendant, the party seeking to amend under OCGA § 9-11-15 must seek leave of court as required by OCGA § 9-11-21. Clover Realty Co. v. Todd, 237 Ga. 821 (229 SE2d 649) (1976); Dollar Concrete Constr. Co. v. Watson, 207 Ga. App. 452 (428 SE2d 379) (1993). Therefore, because the amended complaint in this case was filed without leave of court, it was not effective to add Harding as a defendant. Clover, supra; Dollar Concrete, supra. Thus, unless Godwin could show that the amended complaint related back to the date of the original pleading, the claim against Harding was time-barred.

OCGA § 9-11-15 (c) provides:

Whenever the claim or defense asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back to the date of the original pleadings if the foregoing provisions are satisfied, and if within the period provided by law for commencing the action against him the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

Thus, OCGA § 9-11-15 (c) may authorize the addition of a new party defendant and a relation-back as to that defendant but only if all three of the following elements are satisfied: (1) the amendment adding the new defendant must arise out of the same facts as the original complaint; (2) the new defendant must have sufficient notice of the action; and (3) the new defendant knew or should have known that, but for a mistake concerning his identity as a proper party, that action would have been brought against him. Cobb v. Stephens, 186 Ga. App. 648, 649-650 (368 SE2d 341) (1988) (citing A. H. Robins Co. v. Sullivan, 136 Ga. App. 533 (221 SE2d 697) (1975)).

“In Cobb . . . we recognized the requirement that there be a strict adherence to the letter of OCGA § 9-11-15 (c) by the one who would rely upon it as authority for the addition of a new party to an existing action.” Swan v. Johnson, 219 Ga. App. 450, 451 (465 SE2d 684) (1995). In Swan, as in the case before us, Swan was the party the plaintiff sought to add and, therefore, Swan had the burden as the movant on summary judgment, to show that OCGA § 9-11-15 (c) was inapplicable. Swan did this by filing an affidavit stating that there could have been no mistake as to his identity because he was the only lifeguard on duty the day of the drowning, the occurrence giving rise to the complaint. This shifted the burden back to the plaintiff to show the applicability of the relation-back provisions of OCGA § 9-11-15 (c). Because there was nothing in the record which contradicted Swan’s affidavit, Swan had demonstrated as a matter of law that the relation-back provisions of the statute did not apply. Id. at 451.

Similarly, in this case, Harding has pointed out that the plaintiff was present when Harding examined her husband, was privy to all that occurred during that examination, and heard Harding tell Nicholas to go home and take some antacids and rest.

This shifted the burden back to Godwin to show the applicability of the relation-back provisions of OCGA § 9-11-15 (c). The record is clear that Ms. Godwin does not dispute that she was present when Dr. Harding examined her husband. Therefore, Godwin cannot satisfy the requirement that, but for some mistake concerning her identity as a proper party, Harding should have known the action would have been brought against her. There can be no mistake concerning the doctor’s identity, examination or diagnosis when the plaintiff herself was present.

Decided June 3, 1999 — Cert. applied for.

Coleman, Talley, Newbern, Kurrie, Preston & Holland, Wade H. Coleman, Edward F. Preston, Clifton G. Spencer, for appellant.

Ellerbee Law Firm, O. Wayne Ellerbee, Laurie L. Paterson, Saliba & Moore, George M. Saliba II, for appellees.

Because Godwin cannot satisfy one of the requirements necessary for the amended complaint to relate back to the date of the original pleading, her claim against Harding is time-barred. The trial court erred in not granting Harding’s motion to dismiss.

Judgment reversed.

McMurray, P. J., and Ruffin, J., concur.


author: Johnson, Chief Judge.

text:
    A99A0849.
    DANDY v. THE STATE.
    (518 SE2d 907)
   Johnson, Chief Judge.

A jury found Henry Dandy guilty of possession of cocaine. Dandy appeals from the judgment of conviction entered on the verdict and the denial of his motion for new trial. For the following reasons, we affirm.

1. Dandy contends the evidence was insufficient to support the verdict because the state failed to prove venue. The indictment charged Dandy with possessing cocaine in Muscogee County. The arresting officer testified that the offense was committed in Muscogee County. We note that there was no evidence that the offense was committed in any other county. The evidence was sufficient to authorize the jury’s finding, beyond a reasonable doubt, that the crime charged was committed in Muscogee County. See Pryor v. State, 231 Ga. App. 136, 137 (3) (497 SE2d 805) (1998); Joiner v. State, 231 Ga. App. 61, 63 (497 SE2d 642) (1998).

2. Dandy complains that the state failed to introduce this evidence of venue before resting its case, and argues that the trial court erred in permitting the state to reopen its case so that it could introduce evidence establishing venue. This enumeration is without merit.

It is within the trial court’s discretionary power to permit the state to reopen its case after the close of evidence and to introduce further evidence. See Thompson v. State, 175 Ga. App. 645, 646 (1) (b) (334 SE2d 312) (1985); Morris v. State, 170 Ga. App. 849, 850 (2) (318 SE2d 517) (1984). We find no abuse of discretion. See Bryan v. State, 168 Ga. App. 711-712 (1) (310 SE2d 533) (1983). Because the trial court was authorized to allow the case to be reopened, and because sufficient evidence of venue was introduced upon reopening, we need not decide whether the circumstantial evidence of venue introduced before the case was reopened was sufficient to prove venue. See generally Davis v. State, 225 Ga. App. 564, 566 (3) (484 SE2d 284) (1997) (venue may be proved by circumstantial evidence); and Frisbey v. State, 236 Ga. App. 883, 885 (2) (514 SE2d 453) (1999) (evidence of venue sufficient where officer testified as to which county he worked for and there was no evidence conflicting with conclusion that venue was in that county).

Decided June 3, 1999 — Cert. applied for.

William J. Mason, for appellant.

Henry A. Dandy, Jr., pro se.

J. Gray Conger, District Attorney, Mark A. Casto, Frances D. Hakes, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.


author: Blackburn, Presiding Judge.

text:
    A99A0865.
    ISP ALLIANCE, INC. v. PHYSIOTHERAPY ASSOCIATES.
    (519 SE2d 241)
   Blackburn, Presiding Judge.

In this garnishment action, ISP Alliance, Inc. appeals the trial court’s rulings that (1) its counterclaim against Physiotherapy Associates should be dismissed and (2) its motion for attorney fees should be denied. For the reasons set forth below, we affirm.

The record shows that Physiotherapy Associates obtained a monetary judgment against Donald and Joann Riner. Physiotherapy Associates then filed a garnishment action against Mr. Riner’s employer, America Net, on May 9, 1997. A default judgment was obtained against America Net. On January 7, 1998, Physiotherapy Associates filed a garnishment action in the state court of Fulton County against “ISP Alliance, Inc. d/b/a America Net.” In response to this action, Southtrust Bank, which held ISP’s account, filed a check with the clerk of the court in the amount of the judgment against America Net.

On February 24, 1998, ISP filed a traverse to the garnishment action. In this pleading, ISP stated that, although it had purchased the assets of America Net, it had not assumed America Net’s legal responsibilities.

In its traverse, ISP brought a counterclaim against Physiotherapy Associates, alleging that Physiotherapy Associates had converted its funds by causing its bank to freeze the assets in question. In its pleading, ISP requested compensatory and punitive damages as well as attorney fees.

In its order, the trial court ruled, without explanation, that Physiotherapy Associate’s garnishment action against ISP should be dismissed with prejudice, that ISP’s counterclaim should be dismissed for lack of jurisdiction, and that ISP’s motion for attorney fees should be denied.

1. ISP contends that the trial court improperly dismissed its counterclaim. As we find that ISP failed to state a claim for conversion, the trial court did not err in refusing to consider such claim.

As an initial matter, we note that ISP has failed to provide this Court with any transcript of a hearing held before the trial court. As a general matter, “[w]hen an appellant omits evidence necessary for determination of issues on appeal affirmation is required. [Cit.]” Griffin v. Travelers Ins. Co., 230 Ga. App. 665, 666 (497 SE2d 257) (1998). In this case, however, ISP’s appeal presents this Court with a question of law which can be decided without reference to the omitted transcript.

A person commits the offense of theft by conversion when, having lawfully obtained funds . . . under an agreement or other known legal obligation to make a specified application of such funds ... , he knowingly converts the funds ... to his own use in violation of the agreement or legal obligation.

OCGA § 16-8-4 (a). As a matter of law, no conversion occurred in this case. The freezing of ISP’s assets was precipitated by operation of the garnishment statute, not Physiotherapy Associates’ own doing. As such, Physiotherapy Associates never converted ISP’s funds to its own use. Rather, the funds were automatically frozen by operation of law until such time that a court could determine whether ISP truly owed the funds to Physiotherapy Associates. Therefore, the trial court should not have considered ISP’s counterclaim in this case because it lacked any legal merit, and a decision by a trial court which is correct for any reason will be affirmed. Precise v. City of Rossville, 261 Ga. 210, 211 (3) (403 SE2d 47) (1991).

2. As we have found that the trial court properly dismissed ISP’s counterclaim in this action, we also affirm the court’s ruling denying attorney fees prayed for by ISP in relation to such counterclaim.

Decided June 4, 1999 — Cert. applied for.

Fisher & Phillips, Keith B. Romich, for appellant.

Frederick J. Hanna, Elizabeth C. Whealler, for appellee.

Judgment affirmed.

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


text:
    A99A0932.
    TURNER v. THE STATE.
    (518 SE2d 923)
   Johnson, Chief Judge.

The issue in this case is whether the trial court erroneously denied the criminal defendant’s double jeopardy plea in bar. We find the court did not err and affirm the ruling.

Jason Turner allegedly approached a woman standing near her car at a convenience store, snatched the woman’s purse, threw her into her car, got in the car himself and tried to drive away. He was unable to leave the convenience store area, however, because two drivers in other vehicles blocked his path. Turner hit the vehicles and then fled on foot from the scene. Police later arrested him at another convenience store.

Turner was charged by accusation in state court with improper backing, leaving the scene of an accident and driving with a suspended license. He entered guilty pleas to those charges and was given a probated sentence. Almost a month after his guilty pleas, Turner was indicted for robbery of the woman’s car, robbery of her purse and kidnapping. Turner filed a double jeopardy plea in bar, claiming that he cannot now be prosecuted for the indicted offenses because they should have been brought against him at the same time as the driving offenses. The trial judge denied the plea in bar on the ground that the prosecutor of the driving offenses did not know about . the other crimes. Turner appeals from the court’s denial of his plea in bar, arguing the evidence shows the prosecutor did in fact know of the other crimes when he prosecuted Turner for the driving offenses. The argument is without merit.

The procedural aspect of double jeopardy is set forth in OCGA § 16-1-7 (b), which prohibits successive prosecutions if several crimes arising from the same conduct are known to the prosecuting attorney at the time of commencing the prosecution and are within the jurisdiction of a single court. Blackwell v. State, 230 Ga. App. 611, 612 (2) (a) (496 SE2d 922) (1998). In determining what is known by the prosecutor, the Supreme Court has rejected a subjective knowledge test and instead has adopted an actual knowledge test: OCGA § 16-1-7 (b) applies only to crimes which are actually known to the prosecutor handling the proceedings. Baker v. State, 257 Ga. 567, 568-569 (361 SE2d 808) (1987). The defendant therefore bears the burden of affirmatively showing that the prosecutor had actual knowledge of the crime allegedly subject to a plea in bar under the statute. State v. Goble, 231 Ga. App. 697, 699 (500 SE2d 35) (1998).

Here, Turner has not carried his burden of affirmatively showing that the prosecutor of his driving offenses in fact knew of the other crimes arising out of the incident at the convenience store. Turner argues the prosecutor had actual knowledge of the other crimes from the accident report supplied to him by the sheriff’s department. That report provides:

The driver of vehicle #1 forced his way into vehicle #1 and attempted to travel west out of the parking lot of 2013 Walton Way (Starvin Marvin). The left side of vehicle #1 struck a pole at the listed location. Vehicle #2 pulled behind vehicle #1 in an attempt to block the exit of vehicle #1. Vehicle #1 then backed east, and the rear of vehicle #1 struck the front of vehicle #2. The driver of vehicle #3 pulled in front of vehicle #1 to block vehicle #1 forward exit. The driver of vehicle #1 then pulled forward, west, and the front of vehicle #1 struck the right side of vehicle #3. The driver of vehicle #1 fled the scene on foot and was apprehended at the corner of Heard Ave at Central Ave. The driver of vehicle #1 was determined at fault for improper backing and hit and run.

Contrary to Turner’s argument, the report does not expressly allege that Turner stole the victim’s car and purse or that he tried to kidnap her. Although the report states that Turner forced his way into the car he was driving, it does not clearly state that he stole the car. As the prosecutor testified at the plea in bar hearing, the report statement that Turner forced his way into the car did not indicate to him that Turner had stolen the vehicle, but only indicated that Turner was trying to get into the car and leave the scene. The prosecutor further asserted without contradiction that the report gave him no indication that Turner had committed crimes other than the driving offenses. Given the prosecutor’s unrefuted testimony, we must agree with the trial court’s ruling that the report did not give the prosecutor actual knowledge of the other crimes allegedly committed by Turner.

Decided June 4, 1999.

Garrett & Gilliard, Michael C. Garrett, Elliott B. Watkins, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Turner also claims the prosecutor knew of the felonies from a booking history showing that Turner was booked into jail on felony charges on the same date he was booked into jail on the traffic offenses. The prosecutor explained, however, that a booking date shows only when a person is put in jail, and does not necessarily indicate the date an offense was committed. Thus, the prosecutor did not know from the booking history when the listed felony offenses occurred, let alone if they arose out of the same transaction as the traffic offenses.

At most, the evidence relied on by Turner shows the prosecutor’s subjective knowledge of the other crimes. We therefore are compelled to uphold the trial court’s denial of Turner’s double jeopardy plea in bar on the basis that Turner did not affirmatively show the prosecutor actually knew of the other crimes when he prosecuted the traffic offenses. See Hill v. State, 234 Ga. App. 173, 177 (1) (507 SE2d 3) (1998); compare Weaver v. State, 224 Ga. App. 243, 244 (480 SE2d 286) (1997).

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

       For purposes of an analysis of the prosecutor’s actual knowledge required by OCGA § 16-1-7 (b), we assume without deciding that the driving offenses and the indicted felonies arose out of the same conduct or transaction and are within the jurisdiction of a single court. See generally McCannon v. State, 252 Ga. 515, 518, n. 5 (315 SE2d 413) (1984); Harrell v. State, 196 Ga. App. 101, 103 (2) (395 SE2d 598) (1990).


text:
    A99A1051.
    AUSTIN v. THE STATE.
    (518 SE2d 918)
   Blackburn, Presiding Judge.

Terrence L. Austin appeals his conviction, following a jury trial, for robbery by force, contending that the verdict was inappropriately based on certain hearsay evidence identifying him as the perpetrator. For the reasons set forth below, we affirm.

The record shows that Elton Nesbitt was working as a clerk at a convenience store in Macon at the time of the incident. During his shift from 10:00 p.m. until 2:00 a.m., Nesbitt noticed Austin loitering around the property for several hours on the night in question. While preparing to close the shop for the night, Nesbitt informed Austin that if he intended to buy anything, he would have to do so at that time. Austin entered the store, robbed Nesbitt, and fled. Later, Nesbitt, who had observed Austin for hours preceding the robbery, immediately identified Austin as the perpetrator from a.photo lineup.

During trial, Nesbitt testified that several days after the robbery, an unidentified woman came into the store and informed him that the robber’s name was Terrence. In addition, Lieutenant Helen Jackson, who investigated the case, testified that a police dispatcher received an anonymous tip that Austin had committed the crime. Austin objected to none of this testimony, and he cross-examined both witnesses on the same subject. Now, on appeal, Austin contends that his conviction must be reversed because the jury’s verdict was based on such nonprobative hearsay evidence. We disagree.

“Hearsay evidence is without probative value and will not establish fact in issue even in the absence of a timely objection.” (Citation and punctuation omitted.) Calhoun v. State, 213 Ga. App. 375, 376 (4) (a) (444 SE2d 405) (1994).

Such testimony, admitted without objection and without cautionary instructions is dangerous in that it will be assumed to have been considered by the jury in its deliberations and could have played an important role in connecting the defendant with the commission of the crime. Collins v. State, 146 Ga. App. 857 (1-b) (247 SE2d 602) (1978) holds that where there is no other direct evidence other than this type nonprobative hearsay evidence linking defendant with the crime the case must be reversed. However, where . . . there is other direct evidence, this renders [an enumeration of error with regard to the admission of the hearsay evidence] meritless, or, at the most harmless error.

Morris v. State, 160 Ga. App. 505 (1) (287 SE2d 405) (1981). In short, such nonprobative hearsay evidence will be assumed to have been considered by the jury, and the case must be reversed unless the presence of other direct evidence in the case renders the admission of the hearsay harmless.

Pretermitting the issue of whether the evidence which Austin complains of constituted hearsay, the admission of such evidence in this case was harmless, as there is direct evidence linking Austin to the crime. Nesbitt, the store clerk who had the opportunity to observe Austin for hours before he committed the robbery, positively identified Austin as the perpetrator from a photo line-up and at trial. Therefore, Austin’s enumerations of error are meritless or, at the most, harmless error. Id.

Austin’s reliance on Collins, supra, does not change this result. In Collins, there was no direct evidence that the defendant committed the crime with which he was charged. In contrast, there is direct evidence'in this case that Austin committed robbery.

Decided June 4, 1999.

William D. Phillips, for appellant.

Charles H. Weston, District Attorney, Elizabeth K. Bobbitt, Myra Y. Christian, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


author: Barnes, Judge.

text:
    A99A1166.
    WRIGHT v. THE STATE.
    (519 SE2d 461)
    Decided June 4, 1999 — Cert. applied for.

      Healey & Svoren, Nina M. Svoren, for appellant.

      James T. Irvin, Solicitor, for appellee.
   Barnes, Judge.

Following a bench trial, Leif Wright was found guilty of driving under the influence of alcohol with a blood-alcohol concentration of .10 or more in violation of OCGA § 40-6-391 (a) (5). Wright appeals, contending the trial court erred by admitting evidence of the results of the state administered chemical test because the State failed to introduce the original certificate of inspection for the Intoxilyzer 5000 used to test his breath. See OCGA § 40-6-392 (f). We disagree and affirm.

We recently held that uncertified photocopies of a certificate of inspection for an Intoxilyzer 5000 were admissible in a case where a police officer testified that he recognized the documents which were admitted “as photocopies of the original certificate” for the machine used to test the defendant’s breath. Andries v. State, 236 Ga. App. 842, 845 (512 SE2d 685) (1999). In this case, Trooper Wright testified at trial that she personally made photocopies of the original certificates of inspection for the Intoxilyzer 5000 which was used to test Wright’s breath. The trial court did not err when it admitted these photocopies. Id.

Judgment affirmed.

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


author: Judge Harold R. Banke.

text:
    A99A0892.
    DALY’S DRIVING SCHOOL, INC. v. SCOTT.
    (519 SE2d 1)
   Judge Harold R. Banke.

In actions against corporations, the Civil Practice Act and the Georgia Business Corporation Code provide alternative methods for obtaining substituted service of process in lieu of personal service on corporate officers or agents. OCGA § 14-2-62 (b) was the service provision of the Business Corporation Code, but it was replaced by OCGA § 14-2-504 (b) in 1988. OCGA § 9-11-4 (d) (1), the service provision of the CPA, was amended in 1989. This case presents issues concerning these laws.

This is a damage action by Scott against Daly’s Driving School, Inc. After certifying that service could not be effected on the school’s registered agent Phillips at its registered office on Beaver Ruin Road in Norcross, Georgia, Scott served the Secretary of State pursuant to OCGA § 9-11-4 (d) (1) and then obtained a default judgment. Daly’s moved to set aside the judgment under OCGA § 9-11-60 (d) on grounds that Scott knew the school was no longer doing business at its registered office and could have personally served the registered agent or other authorized agent or officer of the corporation at another location. We granted the school’s application for discretionary appeal from the trial court’s denial of the motion to set aside.

After becoming employed by Daly’s in 1993, Scott worked at the school’s principal office on Beaver Ruin Road. In 1994, Daly’s relocated this office to Jimmy Carter Boulevard. Scott worked there until 1996 when he was transferred to the corporation’s satellite office on Lee Industrial Boulevard in Austell.

Scott’s employment supervisor was Phillips, who is the president of the school as well as its registered agent for service of process. The school’s 1997 registration with the Secretary of State accurately gave Jimmy Carter Boulevard as its corporate address, but incorrectly stated that Beaver Ruin Road was the address of its registered office and agent Phillips.

Scott was terminated from his employment in 1997. He then retained the services of counsel to pursue the present damage claims. In September 1997, counsel for Scott sent a demand letter by certified mail to Phillips at the school’s Jimmy Carter Boulevard address. A receipt for this letter was duly signed.

On December 2, Scott’s wife sent another letter by certified mail to Daly’s also at its Jimmy Carter Boulevard address. But this letter was forwarded to a post office box maintained by Daly’s and then returned unclaimed, as the school had again relocated its corporate office. Scott filed this action on December 18.

The school’s motion to set aside the default judgment was supported by an affidavit in which Phillips averred that Scott could have located him at the Austell office or by calling him at a published telephone number for the school of which both Scott and his counsel had actual knowledge. In response, Scott argued that since Daly’s had vacated the addresses it had given the Secretary of State for both its principal and registered offices, he was authorized to effect substituted service under OCGA § 9-11-4 (d) (1) without making any additional efforts to effect personal service. The trial court agreed. Held:

As a condition of doing business in Georgia, the Business Corporation Code requires each corporation to continuously maintain in this state a registered office and a registered agent. OCGA § 14-2-501.

Under OCGA § 9-11-4 (d) (1), service shall be made by delivering a copy of the summons and complaint “to the president or other officer of the corporation, secretary, cashier, managing agent, or other agent thereof.” When “for any reason” service cannot be had in such manner, OCGA § 9-11-4 (d) (1) makes the Secretary of State an agent of the corporation upon whom process may be served. Before serving the Secretary of State, OCGA § 9-11-4 (d) (1) prior to its 1989 amendment required plaintiff or his attorney to file an affidavit showing that personal service on an authorized officer or other agent of the corporation could not be had within the State. See Lexington Developers v. O’Neal Constr. Co., 142 Ga. App. 434, 438 (1) (236 SE2d 98) (1977), rev’d on other grounds O’Neal Constr. Co. v. Lexington Developers, 240 Ga. 376 (240 SE2d 856) (1977). It was therefore clear that service on the Secretary was not authorized under OCGA § 9-11-4 (d) (1) if it were possible to obtain in-state service on any authorized officer or agent of the corporation. See O’Neal, supra at 377; Bricks v. Walker Showcase, 255 Ga. 122,124 (1) (336 SE2d 37) (1985).

In 1989, OCGA § 9-11-4 (d) (1) was amended so as to require the plaintiff or his attorney to certify in writing to the Secretary of State that process has been forwarded by registered mail

to the last registered office or agent listed on the records of the Secretary of State, that service cannot be effected at such office, and that it therefore appears that the corporation has failed either to maintain a registered office or appoint a registered agent in this state.

We conclude that the intent of the 1989 amendment was to permit substituted service on the Secretary of State where the corporation has failed to maintain a registered office or personal service cannot be effected there. This statute thus promotes essentially the same policy as did former OCGA § 14-2-62 (b), which authorized substituted service on the Secretary of State whenever a corporation failed to appoint or maintain a registered agent in this state or whenever its registered agent could not with reasonable diligence be found at the registered office. O’Neal, supra at 376-378. It was thus held that when either condition of the statute was met, the plaintiff was authorized to effect substituted service on the Secretary without regard to how easily personal service on a corporate officer or agent otherwise could have been obtained. See O’Neal, supra; Frazier v. HMZ Property Mgmt., 161 Ga. App. 195 (291 SE2d 4) (1982); D & C Trading Co. v. Indian Products, Ltd., 179 Ga. App. 198, 199 (2) (345 SE2d 865) (1986).

As recognized in Frazier, supra at 196:

Title [14] requires corporations to maintain registered agents and registered offices as a condition of doing business in Georgia, so as to make it . . . virtually impossible to evade service of process. [Cits.] . . . [T]he consequence of [imposing a burden on plaintiff to show that they did not know where the registered agent of the corporation might otherwise be found] would be to make service of a corporation an entirely uncertain matter in every case and to make evasion of service an easy proposition. ... If the corporation complies with statutory requirements for doing business in this state, it will not be deprived of service or notice. . . .

OCGA § 14-2-504 (b) now authorizes service on a corporation by registered or certified mail at its principal office, if the corporation has no registered agent or the registered agent cannot with reasonable diligence be served. OCGA § 14-2-504 (b) thus requires a plaintiff to use reasonable diligence in serving the registered agent of the corporation wherever he can be found in the state unless the corporation has no registered agent. Here, Daly’s had a registered agent and a registered office, albeit one that was not maintained. Had Scott sought to utilize OCGA § 14-2-504 (b), he would have been required to exercise due diligence in locating Phillips. Instead, Scott availed himself of OCGA § 9-11-4 (d) (1). These two Code sections provide “alternative” service methods. Lexington Developers, supra.

The trial court did not err in holding that in this case substituted service on the Secretary of State was proper under OCGA § 9-11-4 (d) (1).

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

Decided May 21, 1999

Reconsideration denied June 7, 1999.

Robert A. Kaiden, for appellant.

Thomas L. Williams, for appellee.


author: Smith, Judge.

text:
    A99A0451.
    O’NEAL v. THE STATE.
    (519 SE2d 244)
   Smith, Judge.

This is the second appearance of this case before this court. In O’Neal v. State, 211 Ga. App. 741 (440 SE2d 513) (1994), we affirmed O’Neal’s convictions on charges of possession of cocaine with intent to distribute and misdemeanor obstruction of an officer. He now appeals pro se from the trial court’s denial of three post-conviction motions. We find no merit in any of O’Neal’s contentions, and we affirm the trial court’s denial of the motions.

1. O’Neal contends the trial court erred in denying his extraordinary motion for new trial based on newly discovered evidence. As best we understand his motion and his brief, the “newly discovered evidence” consists entirely of allegations that the arresting officers were under investigation at the time of O’Neal’s trial and the Macon Police Department later dismissed one or both of them; that one officer did not prove the existence or reliability of an informer from whom he received information; and that one officer’s testimony at a pretrial hearing differed from his testimony at trial.

Even assuming the record contained admissible evidence supporting these allegations, the trial court correctly found that the sole use of the evidence would be to impeach the credibility of the officers. As such, it does not support the grant of an extraordinary motion for new trial. “Under OCGA § 5-5-23, newly discovered evidence that is merely impeaching in its character cannot be the basis for a new trial.” (Citation and punctuation omitted.) Lawrence v. State, 227 Ga. App. 70, 74 (487 SE2d 608) (1997). The trial court did not err in denying O’Neal’s extraordinary motion for new trial.

2. In his next argument, O’Neal appears to assert that his sentence was “illegal” because he was sentenced to less than the maximum allowable sentence even though the State indicted him as a recidivist. O’Neal is correct that he was sentenced to a shorter term of confinement than is mandated by OCGA § 17-10-7 (a). The statute provides:

Except as otherwise provided in subsection (b) of this Code section, any person convicted of a felony offense in this state . . . and sentenced to confinement in a penal institution, who shall afterwards commit a felony punishable by confinement in a penal institution, shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he or she stands convicted, provided that, unless otherwise provided by law, the trial judge may, in his or her discretion, probate or suspend the maximum sentence prescribed for the offense.

Decided June 7, 1999 — Cert. applied for.

Buster O’Neal, Jr., pro se.

Charles H. Weston, District Attorney, Howard Z. Simms, Assistant District Attorney, for appellee.

Cocaine is a Schedule II drug. OCGA § 16-13-26 (1) (D). The maximum sentence for a first offense of possession with intent to distribute is 30 years. OCGA § 16-13-30 (d). O’Neal was sentenced to 20 years. He therefore is correct in stating that he was sentenced to a shorter term of confinement than that required by the statute. But as recognized by the trial court, the error was a benefit, and he cannot complain. Murphy v. State, 203 Ga. App. 152, 155 (3) (416 SE2d 376) (1992) (full concurrence as to Division 3). The trial court did not err in denying O’Neal’s motion to correct an illegal sentence.

3. In his final enumeration of error, O’Neal maintains the trial court erred in denying his motion for reduction of sentence. His request for sentence reduction has been denied twice before. O’Neal acknowledges that the cases he cites in support of his request address sentence reduction within the same or the next term of court, and they are not applicable almost six years after conviction. See, e.g., Doby v. Evans, 258 Ga. 777 (373 SE2d 757) (1988); State v. Bradbury, 167 Ga. App. 390, 392 (4) (306 SE2d 346) (1983). As noted in Doby, a court has no power to amend or vacate its judgment after the expiration of the term at which judgment is entered. Id. The trial court did not err by denying O’Neal’s motion for sentence reduction.

Judgment affirmed.

Pope, P. J., and Eldridge, J, concur.


text:
    A99A0984.
    JAMSKY v. HPSC, INC.
    (519 SE2d 246)
   Blackburn, Presiding Judge.

Robert Jamsky appeals the trial court’s order which granted summary judgment to the plaintiff, HPSC, Inc., in the underlying action on a deficiency claim arising out of the sale of collateral pursuant to a lease financing agreement. Jamsky contends that the sale price was not commercially reasonable.

“In reviewing [a] grant or denial of summary judgment, this Court conducts a de novo review of the evidence.” Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432) (1996).

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).

(Punctuation omitted.) Id.

“In Georgia, all lease contracts for ‘goods,’ including finance leases, first made or first effective on or after July 1, 1993, are governed by Article 2A of the Uniform Commercial Code. OCGA § 11-2A-101 et seq.” [Cit.] The Agreement was entered into by the parties [in 1995]; therefore, it is subject to Article 2A of the UCC and §§ 527 and 528 thereof. The provisions of §§ 527 and 528 regarding damages available upon default are applicable “(e)xcept as otherwise provided with respect to damages liquidated in the lease agreement (Code Section 11-2A-504) or otherwise determined pursuant to agreement of the parties (Code Sections 11-1-102 (3) and 11-2A-503).” OCGA §§ 11-2A-527 (2) and 11-2A-528 (1). In this case, the Agreement “otherwise provides for damages liquidated in the lease agreement,” specifically setting forth a formula to calculate such damages. As a result, OCGA §§ 11-2A-527 and 11-2A-528 are not applicable to the matter at hand, and the more general directives of OCGA § 11-2A-504 are controlling.
According to OCGA § 11-2A-504, “(d)amages payable by either party for default, or any other act or omission, . . . may be liquidated in the lease agreement but only at an amount or by a formula that is reasonable in light of the then anticipated harm caused by the default or other act or omission.” OCGA § 11-2A-504 (1).

Carter v. Tokai Financial Svcs., 231 Ga. App. 755, 757-758 (500 SE2d 638) (1998).

In the present case, paragraph 9 of the Agreement provides that, upon default, HPSC may do one or more of the following:

(a) we may cancel or terminate this Lease and/or any or all other agreements that we have entered into with you; (b) we may require you to immediately pay us, as compensation for loss of our bargain and not as a penalty, a sum equal to (i) the present value of all unpaid Lease Payments for the remainder of the term plus the present value of our anticipated residual interest in the Equipment, each discounted at a rate per year equal to the discount rate of the Federal Bank of Boston on the date payment is demanded plus 1%, plus (ii) all other amounts due or that become due under this Lease; (c) we may require you to deliver the Equipment to us as set forth in Section 3; (d) we or our agent may peacefully repossess the Equipment without court order and you will not make any claims against us for damages or trespass or any other reason; and (e) we may exercise any other right or remedy available at law or in equity. You agree to pay all of our costs of enforcing our rights against you, including reasonable attorneys’ fees. If we take possession of the Equipment, we may sell or other wise dispose of it with or without notice, at a public or private sale, and apply the net proceeds (after we have deducted all costs related to the sale or disposition of the Equipment) to the amounts that you owe us. You agree that if notice of sale is required by law to be given, 10 days’ notice shall constitute reasonable notice. You will remain responsible for any amounts that are due after we have applied such net proceeds.
“Determining whether such a clause constitutes an enforceable liquidated damages provision or an unenforceable penalty is a question of law for the court. To qualify as an enforceable liquidated damages provision three factors must be present: First, the injury caused by the breach must be difficult or impossible of accurate estimation; second, the parties must intend to provide for damages rather than for a penalty; and, third, the sum stipulated must be a reasonable pre-estimate of the probable loss. . . . On summary judgment, [HPSC], as movant, has the burden of showing that as to the three prongs ... no genuine issue of material fact exists.” (Citations and punctuation omitted.) Peterson v. P. C. Towers, L.P., 206 Ga. App. 591, 592-593 (3) (426 SE2d 243) (1992).

Carter, supra at 758.

HPSC has carried this burden. The lease requires the reduction of the accelerated rent to present value which we have previously noted tends to establish a reasonable estimate of probable loss. See Carter, supra at 759. Additionally, HPSC was required to apply the net proceeds to the amount owed by Jamsky.

Decided June 7, 1999.

Robert H. Baer, for appellant.

Arnall, Golden & Gregory, James R Smith, for appellee.

As Jamsky has failed to come forward with any evidence challenging HPSC’s evidence of the amount owed, the trial court correctly granted HPSC’s motion for summary judgment.

Judgment affirmed.

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


text:
    A99A1047.
    THOMPSON v. PERMANENT GENERAL ASSURANCE CORPORATION.
    (519 SE2d 249)
   Judge Harold R. Banke.

Permanent General Assurance Corporation (“PGAC”) refused to pay a collision claim on its auto insurance policy issued to Michael Thompson. PGAC contended that Thompson had made a material misrepresentation in the insurance application, which voided the policy. Thompson sued PGAC on the claim, and the trial court granted PGAC summary judgment. On appeal Thompson contends the evidence was disputed whether the misrepresentation was material.

On September 6, 1995, Thompson with the help of an insurance agent completed and signed a PGAC insurance application listing himself and his wife as the covered drivers. He elected liability, uninsured motorist, and collision coverage. Where the application asked him to list any other persons living in his household who were 14 years old or older, “None” is typed. In fact, Thompson had a 15-year-old unlicensed daughter at home. The policy issued effective September 6.

As the policy neared time for its first annual renewal, Thompson on August 28, 1996, paid the renewal premium and told the insurance agent that his now 16-year-old daughter had just received her learner’s permit and needed to be added to the policy. The agent responded that he would first need some license information on the daughter and that the premium would increase. On September 4 the daughter was driving the insured car and totaled the vehicle. On September 6 Thompson gave the daughter’s license information to the agent and paid the increased premium, resulting in a renewal of the policy with the daughter now listed as a covered driver. In response to the collision claim filed regarding the September 4 accident, PGAC declined coverage, claiming the misrepresentation in the insurance application voided the policy. Held:

As in Hicks v. American Interstate Ins. Co. &c., 158 Ga. App. 220, 221 (1) (279 SE2d 517) (1981), it is important to note at the outset that the fact that the daughter was driving the covered vehicle at the time of the collision and whether or not coverage extended under that circumstance are not relevant to this appeal. The issue is whether or not Thompson’s failure to list the daughter’s name on the application was a misrepresentation material to the risk of insuring the car, which would void the policy.

Misrepresentations, incorrect statements, or omissions of fact on an insurance application do not prevent recovery under the policy unless (a) fraudulent, or (b) material either to acceptance of the risk or the hazard assumed, or unless (c) the insurer in good faith would not have issued the policy in the amount and at the rate charged if the truth had been known to the insurer. OCGA § 33-24-7 (b); Taylor v. Ga. Intl. Life Ins. Co., 207 Ga. App. 341, 342 (427 SE2d 833) (1993). To void the policy, the burden rests on the insurer to show that the misrepresentation was material to its acceptance of the terms of the policy. Jackson Nat. Life Ins. Co. v. Snead, 231 Ga. App. 406, 410 (3) (b) (499 SE2d 173) (1998). “A material misrepresentation is one that would influence a prudent insurer in determining whether or not to accept the risk, or in fixing a different amount of premium in the event of such acceptance.” (Citation and punctuation omitted.) Id.; Ga. Intl. Life Ins. Co. v. Bear’s Den, 162 Ga. App. 833, 838 (3) (292 SE2d 502) (1982). Because this is a question for the jury, summary judgment is error absent undisputed evidence that allows no inference other than materiality. Snead, 231 Ga. App. at 410 (3) (b); Bear’s Den, 162 Ga. App. at 838 (3).

Here the misrepresentation is that Thompson had no household members over the age of 14 other than himself and his wife, when in fact he had a 15-year-old unlicensed daughter living at home. PGAC has presented no evidence showing that this omitted fact would have affected its decision to accept the risk at the premium stated. At most PGAC has submitted an affidavit from a claims manager that PGAC would not have issued the policy at the initial premium rate if a student driver had been added to the application for policy. But PGAC has submitted no evidence that Thompson’s daughter was a student driver at the time of the September 1995 application or that at that time she drove the covered car or was to be added to the policy as a covered student driver.

To the contrary, PGAC’s own evidence confirms that she received her learner’s license just before the August 1996 request to add her to the policy, which is when she began driving the covered car. Accordingly, the affidavit concerning increased rates for adding student drivers to policies is hardly relevant in determining whether Thompson’s failure to list his unlicensed 15-year-old daughter, who was not driving the car, affected PGAC’s decision to accept the risk at the stated rate.

Decided June 7, 1999.

Goddard, Thames, Hammontree & Bolding, Matthew D. Thames, for appellant.

Angela M. Cirina, for appellee.

Other evidence further disputes that this omission was material. When Thompson told the insurance agent of the daughter’s existence in August 1996, PGAC, which was imputed with the agent’s knowledge (see Patriot Gen. Ins. Co. v. Millis, 233 Ga. App. 867, 870 (1) (506 SE2d 145) (1998)), did not immediately declare the policy void. In fact, the agent readily described the means and increased premium needed to add her as a licensed driver to the policy, and PGAC unquestioningly renewed the policy with her as a covered driver.

Such facts not only indicate the misrepresentation may have been immaterial, but also raise the possibility of waiver. After learning of a misrepresentation in the application, an insurer waives the defense that the misrepresentation voided the policy if it treats the policy as valid and binding and retains the insured’s premiums as earned. Florida Intl. Indem. Co. v. Osgood, 233 Ga. App. 111, 113 (1) (503 SE2d 371) (1998). Because one can hardly renew something that is dead, PGAC’s renewing the policy is one indication that the policy was not void. State Farm Fire &c. Co. v. Jenkins, 167 Ga. App. 4, 6 (1) (305 SE2d 801) (1983). There also being no indication that the initial premium was returned, waiver may have occurred.

Because there are disputed issues of fact as to the materiality of the misrepresentation and as to waiver, the trial court erred in granting PGAC summary judgment. This ruling moots the other enumeration of error.

Judgment reversed.

Blackburn, P. J., and Barnes, J., concur.


text:
    A99A1291.
    HARRIS v. THE STATE.
    (519 SE2d 243)
   Blackburn, Presiding Judge.

After entering a plea of guilty to the charge of shoplifting, Emory Harris appeals from the sentence imposed on him. Harris contends that the trial court erroneously considered prior guilty pleas to other felonies in sentencing him as a recidivist offender pursuant to OCGA § 17-10-7 (c). For the reasons set forth below, we affirm the sentence of the trial court.

During sentencing, the State offered certified copies of five prior felony convictions. Harris objected to the evidence of four of the five convictions, which represented prior guilty pleas, contending that the State produced no evidence that the pleas were voluntary. However, Harris presented no evidence to support his contention, and he simply argued that the State had the burden to show that the prior guilty pleas were voluntary.

Harris relies on Pope v. State, 256 Ga. 195 (345 SE2d 831) (1986), in which our Supreme Court held:

A plea of guilty that is invalid under Boykin [v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969)] may not be used to enhance punishment in a subsequent trial. . . . [0]nce the defendant raises the issue of intelligent and voluntary waiver with respect to prior guilty pleas, the burden is on the [S]tate to establish a valid waiver. Boykin states that “ ‘(p)resuming waiver from a silent record is impermissible.’ ” Id. at 242.

Id. at 209-210 (17).

Subsequent to the decision in Pope, the United States Supreme Court further delineated its holding in Boykin by explaining that “Boykin does not prohibit a state court from presuming, at least initially, that a final judgment of conviction offered for purposes of sentence enhancement was validly obtained.” Parke v. Raley, 506 U. S. 20, 30 (113 SC 517, 121 LE2d 391) (1992). The U. S. Supreme Court stated that “the Due Process Clause permits a State to impose a burden of production on a recidivism defendant who challenges the validity of a prior conviction under Boykin” Id. at 34.

In Nash v. State, 233 Ga. App. 75 (503 SE2d 23) (1998), cert. granted, this Court considered the effect of Parke on the Supreme Court of Georgia’s decision in Pope. Because Pope was based on an interpretation of the U. S. Constitution, and the U. S. Supreme Court had subsequently interpreted the Constitution in a different manner, a unanimous Court of Appeals held that Parke was controlling, and that, when considering the admissibility of a prior guilty plea for purposes of recidivist sentencing, a trial court is “authorized to . . . apply the presumption of regularity which is deeply rooted in our American jurisprudence and in Georgia is codified in OCGA § 24-4-24 (b) (1).” (Punctuation and footnote-omitted.) Nash, supra at 79. [Footnote: Although the Supreme Court’s decision in Mize v. State, 269 Ga. 646, 657 (15) (501 SE2d 219) (1998), implicitly calls into question our decision in Nash, the Supreme Court did not overrule Nash in that case, nor did it consider the U. S. Supreme Court’s decision in Parke. Accordingly, and in light of the fact that the Supreme Court has granted certiorari in Nash, we adhere to our unanimous decision in Nash. See OCGA § 15-3-1 (unanimous whole-court decision may not be “overruled or materially modified except with the concurrence of all the Judges”).]

Decided June 7, 1999.

John W. Donnelly, for appellant.

Harry N. Gordon, District Attorney, John A. Pursley, Assistant District Attorney, for appellee.

Wells v. State, 237 Ga. App. 109, 115 (514 SE2d 245) (1999).

Based on Nash, supra, the trial court appropriately applied a presumption of regularity to Harris’ prior felony convictions. Therefore, as Harris failed to present any evidence to rebut the presumption that his prior felony pleas were voluntary, the trial court did not err in admitting such prior pleas for sentencing purposes. Nash, supra. See also Brown v. State, 237 Ga. App. 322 (514 SE2d 236) (1999); Rutledge v. State, 237 Ga. App. 390 (515 SE2d 1) (1999).

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A99A0109.
    BOYD v. CRAWFORD.
    (519 SE2d 306)
   McMurray, Presiding Judge.

This case first appeared in Boyd v. Crawford, 231 Ga. App. 169 (498 SE2d 762), where we held that the trial court improperly entered judgment for Michelle D. Crawford as the trial court indicated it had based its decision in part because James Boyd failed to attend a hearing. Because OCGA § 9-11-41 (b) (1) limited the trial court to dismissing Boyd’s complaint without prejudice, we vacated the trial court’s judgment and remanded the case for entry of an order and judgment dismissing Boyd’s action without prejudice. Id. at 170-171 (3). This appeal followed the trial court’s subsequent order dismissing Boyd’s action without prejudice. Held:

1. Boyd asserts the same enumeration of errors that he asserted in his first appeal. We considered Boyd’s enumeration of errors and brief in his first appeal and determined that, but for a technicality, there was no basis for reversing the trial court’s order adjudicating Boyd’s claims. Boyd, 231 Ga. App. at 170 (2), (3), supra. We have considered Boyd’s enumeration of errors and brief in the case sub judice and find no basis for reversing the trial court’s order dismissing Boyd’s action without prejudice.

Decided April 23, 1999

Reconsideration dismissed June 8, 1999.

James Boyd, pro se.

Deming, Parker, Hoffman, Green & Campbell, James R. Green, Jr., for appellee.

2. Crawford’s motion for imposition of a penalty pursuant to Court of Appeals Rule 15 (b) is denied.

Judgment affirmed.

Andrews and Ruffin, JJ, concur.


text:
    A99A0224, A99A0225.
    EMMETT v. REGIONS BANK (two cases).
    (518 SE2d 472)
   Barnes, Judge.

Nolan Emmett, the executor of the estates of Gilbert Lee Cabbage and Florence Irene Cabbage, and Claude Richard Emmett, co-executor of Mrs. Cabbage’s estate, sued Regions Bank. The Emmetts asserted that the bank improperly cashed certificates of deposit (“CDs”) and a savings account that were jointly held by Mr. and Mrs. Cabbage, and failed to pay the proceeds of Mr. Cabbage’s IRA to Mrs. Cabbage.

The bank deposited the proceeds of the IRA into the court registry and moved to interplead Mr. Cabbage’s daughter, Brenda Hayes. The disposition of those funds remains pending in the trial court and is not before this court.

The trial court granted summary judgment to the bank as to the CDs and the savings account in both actions. The Emmetts appeal, alleging the court erred in denying their motions to compel and strike, and in granting partial summary judgment to the bank. For the reasons that follow, we affirm.

Mr. and Mrs. Cabbage had been married for approximately 40 years, and each had two children by previous marriages. They jointly held a checking account, a savings account, and two CDs with Regions Bank. Mr. Cabbage also held an IRA and a third CD jointly with Hayes at Regions Bank.

In June 1996, Mrs. Cabbage was diagnosed with pancreatic cancer and a few weeks later she entered a nursing home. On June 17, 1996, Regions Bank transferred approximately $30,000 from the couple’s joint savings account into a new account held by Mr. Cabbage and Hayes. On that date the bank also cashed the two CDs held by Mr. and Mrs. Cabbage, worth approximately $14,000 and $25,000, and opened two new CDs held by Mr. Cabbage and Hayes. On June 21, 1996, Hayes transferred the assets listed above into other accounts in her name. On June 24, 1996, Mr. Cabbage died, and Nolan Emmett was appointed executor of his will. On August 26, 1996, Mrs. Cabbage died, and Nolan and Claud Richard Emmett were appointed co-executors of her will.

1. The Emmetts first argue that the trial court erred in denying their motion to compel Regions Bank to produce certain documents. We review the trial court’s ruling on discovery matters for abuse of discretion. Mixon v. City of Warner Robins, 214 Ga. App. 519 (2) (448 SE2d 377) (1994). The Emmetts sought, among other things, a copy of the debit memo withdrawing more than $30,000 from Mr. and Mrs. Cabbage’s joint savings account and copies of all checks written on the checking and savings accounts for April through July of 1996. Regions Bank responded to the motion by producing copies of some of the items requested, but not all, indicating that some items could not be found, such as the debit memo showing the savings account withdrawal. Regions Bank also submitted affidavits by its bookkeeping supervisor and two bookkeeping clerks, swearing they had searched for the requested documents but that some of them could not be found.

In denying the motion to compel, the trial court noted that Regions Bank stated that the only evidence it had regarding the transactions at issue were computer records, which it had produced. Pretermitting the issue of whether the bank should have kept copies of these transactions for seven years, as the Emmetts argue, the bank showed that it did not have certain copies in its possession. Therefore, we find the trial court did not abuse its discretion in denying the motion to compel the bank to produce documents it did not have.

2. The Emmetts next argue that the trial court erred in denying their motion to strike affidavits submitted by Regions Bank and to strike Hayes’ deposition. The Emmetts contend that the affidavits of the teller who waited on Mr. Cabbage and Hayes on June 17, 1996, and of the vice president who explained the computer-generated documents showing the history of the account and CDs should be struck because they did not specifically state they were made of the affiants’ own knowledge.

OCGA § 9-11-56 (e) provides that affidavits supporting a summary judgment motion “shall be made on personal knowledge.” However, the affidavits need not expressly state that they are based on personal knowledge if they clearly reflect that their contents were rooted in the affiant’s “personal knowledge and observation.” Edwards v. Campbell Taggart Banking Cos., 219 Ga. App. 806, 808 (2) (466 SE2d 911) (1996). Here, Rhodes’ affidavit stated that:

Mr. Gilbert Cabbage and Mrs. Brenda Hayes, customers of Regions Bank, were personally known to me. . . . Mr. Cabbage and his daughter, Brenda Hayes, came into the Bank on June 17,1996. Mr. Cabbage cashed in two CD’s that were in the name of Gilbert Cabbage/Florence Cabbage. Two new CD’s were opened that same day in the name of Gilbert Cabbage or Brenda Sue Hayes.

It is clear from the affidavit that Rhodes made the statements from her personal knowledge.

Further, contrary to appellants’ representation in their briefs, the Regions Bank vice-president swears in his affidavit that it is “based on personal knowledge.” The trial court did not abuse its discretion in denying the Emmetts’ motion to strike the affidavits based on lack of personal knowledge.

3. The Emmetts next contend that the trial court erred in denying their motion to strike Hayes’ deposition because she had been impeached during her testimony. The trial court did not explicitly rule on this ground of the Emmetts’ motion to strike. However, none of the cases cited by the appellants supports the proposition that a trial court should strike a deposition when the deponent is impeached. Further, Hayes’ allegedly impeaching statement, her admission that she falsely swore her father’s estate was not in probate in order to gain title to his car, does not address whether Regions Bank had authority to transfer the assets at issue here. Finally, Regions Bank argues that, even if Hayes’ deposition were struck, the bank teller’s affidavit conclusively establishes that Mr. Cabbage authorized the transactions at issue. We find no support for the conclusion that a trial court should strike deposition testimony when the deponent is allegedly impeached during the deposition, and hold the trial court did not abuse its discretion in denying the Emmetts’ motion to strike Hayes’ deposition.

4. Appellants also argue that the trial court should have struck these affidavits and Hayes’ deposition because the “best evidence” of the transactions at issue would be the CDs themselves and debit memos or checks showing the fund withdrawals. OCGA § 24-5-4 (a) provides that “[t]he best evidence which exists of a writing sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for.” However, the Emmetts do not question that the CDs existed, or that a large sum of money was withdrawn from the savings account; they question whether the transactions were properly authorized.

It is not contrary to the best-evidence rule that oral testimony of a fact in issue may be primary evidence thereof, although there is written evidence of the same fact, where the essential fact to be proved is neither the existence nor the contents of the writing, but the existence of the independent fact itself, to which the writing is merely collateral or incidental. In such a situation the rule requiring production of original writings has no application.

Peterson v. Lott, 200 Ga. 390, 392-393 (1) (37 SE2d 358) (1946). See Michaels v. Kroger Co., 172 Ga. App. 280, 284 (1) (322 SE2d 903) (1984) (error in excluding evidence of plaintiffs earnings on the ground that best evidence would be income tax returns or W-2).

Since the Emmetts do not seek to prove the existence of the documents, the best evidence rule does not apply. The trial judge did not err in denying the motion to strike the affidavits of Regions Bank’s teller and vice-president on the ground that they were not the “best evidence” of the transactions at issue.

5. The Emmetts assert the trial court erred in implicitly holding that Regions Bank did not have to retain original certificates and withdrawal slips, arguing that OCGA § 7-1-910 requires banks to maintain certain records. That Code section, however, applies to currency transactions and is not applicable to the case at bar. Further, the provision of Regions Bank’s customer agreement cited by the Emmetts applies to “check retention accounts,” and appellants made no showing that the savings account at issue fit that description.

OCGA § 7-1-63 (c), cited by the Emmetts, concerns the retention of records by financial institutions, and provides that “[a]ny copy of a record . . . , including legible products of computer operations, shall be admissible in evidence as though it were the original.” Further, the Emmetts cite 12 USC § 1829b, which provides that where the Secretary of the United States Treasury determines that maintaining records is useful for criminal, tax, or regulatory proceedings, he shall prescribe regulations to carry out those purposes. However, the section does not address whether banks must maintain originals or copies of CDs or withdrawal slips. Finally, 12 USC § 1730d, which the Emmetts cite in support of their argument that the trial court erred in ruling that Regions Bank did not have to retain original certificates and withdrawal slips, has been repealed.

Finally, Ga. Comp. Rules & Regs. Rule 80-10-1 specifies minimum retention periods for CDs and savings account deposit tickets, as the Emmetts argue. However, Ga. Comp. Rules & Regs. Rule 80-10-1.02 (2) specifies that printouts of electronic data processing records concerning the withdrawal and deposit transactions that contain “essentially the same information as the conventional records . . . may be retained in lieu of the records listed.” The trial court found that Regions Bank had produced such computer records. We find that the trial court did not err in ruling that Regions Bank was not required to retain original certificates and withdrawal slips.

6. Finally, the Emmetts enumerate several errors concerning the trial court’s findings, all of which relate to the issue of whether the trial court erred in granting summary judgment to Regions Bank.

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 non-moving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c).

Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

One essential element of the Emmetts’ complaints is that Regions Bank allowed the withdrawal of substantially all the funds from the joint savings account and of all funds from three CDs “without proper authorization or authority of either Gilbert L. Cabbage or Florence Irene Cabbage.” To refute that element, Regions Bank points to the affidavit of the teller who averred that she waited on Mr. Cabbage and Hayes on June 17, 1996; that Mr. Cabbage cashed two CDs that were in his name and Mrs. Cabbage’s; and that Mr. Cabbage opened a new savings account in his and Hayes’ names. Hayes testified in deposition that she and Mr. Cabbage went to Regions Bank on June 17, 1996; that Mr. Cabbage told the teller he wanted “Florence’s name taken off [two CDs] and [Hayes’] name put on,” and that Mr. Cabbage signed whatever the bank teller asked him to sign.

Ample evidence exists to show Mr. Cabbage was an account holder on the savings account and all three CDs. That evidence includes a Regions Bank vice-president’s affidavit tracing the Cabbages’ checking and savings account from the time they were first opened with First National Bank of Gainesville (“FNB”), through FNB’s merger with Regions Bank, to the present. That affidavit also traces the history of a CD worth approximately $20,000 held by Mr. Cabbage and Hayes, first purchased in August 1995. A Regions Bank teller swore by affidavit that the other two CDs at issue, one for $14,000 and the other for $25,000, jointly belonged to Mr. and Mrs. Cabbage.

The bank’s customer service agreement provides that, on multiparty accounts, each party listed can close the account and receive the balance of funds on deposit. OCGA § 7-1-816 provides that “Any multiple-party account may be paid, on request, to any one or more of the parties.” Appellants’ assertion in their brief that “both the signatures of Gilbert Cabbage and Florence Cabbage would be necessary to transfer the funds” is not supported by anything in the record. The bank teller averred that Mr. Cabbage directed her in person to close the savings account held jointly with his wife and open a new one jointly with his daughter, and further cashed two of the CDs and opened two new CDs in his and Hayes’ names.

Decided May 26, 1999

Reconsideration denied June 8, 1999 — Cert. applied for.

Edmund A. Waller, for appellant.

Stewart, Melvin & Frost, Frank Armstrong III, for appellee.

The Emmetts object to two additional trial court rulings: that Mr. Cabbage added Hayes to the savings account on June 17, 1996, and that two signature cards showed authorized account holders. However, even without those rulings, Regions Bank showed that no genuine issue of material fact exists regarding Mr. Cabbage’s ownership interest in the savings account and CDs or his authority to transfer the funds on June 17, 1996. The burden thus shifted to the Emmetts to “point to specific evidence giving rise to a triable issue.” Lau’s Corp., supra, 261 Ga. at 491.

In response, the Emmetts produced Claud Richard Emmett’s affidavit in which he avers that on June 19, 1996, he went to Regions Bank with Mrs. Cabbage’s power of attorney to inquire after her accounts. He said employees told him that they could not give him any information about the three CDs because they were registered solely to Mr. Cabbage, and told him the savings account had been cashed in on June 17, 1996. The trial court properly concluded that, even viewed in the light most favorable to the Emmetts, this affidavit asserting that Regions Bank refused to give information to a representative of someone not a party to the accounts does not give rise to a question of fact.

After reviewing the record, we conclude that the trial court did not err in granting summary judgment to Regions Bank on the Emmetts’ claims regarding the savings account and the three CDs.

7. Regions Bank’s motion for imposition of frivolous appeal penalties is denied.

Judgments affirmed.

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


text:
    A99A0367.
    HOWARD v. THE STATE.
    (518 SE2d 152)
   McMurray, Presiding Judge.

Defendant Howard appeals his conviction of the offense of aggravated assault upon a correctional officer. Both of defendant’s enumerations of error address the sufficiency of the evidence to authorize the conviction. Held:

The evidence stated in the light most favorable to sustaining the verdict of the jury shows that the victim, Richard Brantley, a correctional officer at the state prison in Reidsville, was distributing spoon packs, containing plastic utensils, napkins, and condiments, to a range of prison cells prior to a meal time when he was struck by a quantity of hot liquid thrown from a cell. He received first, second, and third degree burns to 50 percent of his body, from his face to his waist. Brantley was approximately halfway through the second tier of cells when he was struck by the liquid which he identified by smell to contain baby oil and liniment, substances which the inmates could obtain from the prison store or hospital. Inmates were able to heat liquids for such nefarious purposes by using wiring taken from radios.

While Brantley did not know the source of the hot liquid, he was accompanied by a correctional officer trainee, Chris Reeves, who was walking two or three feet behind him. Reeves observed the liquid coming out of “Cell 32” and testified that there was “no doubt in [his] mind which cell it came out of.” Defendant was the sole resident of that cell and had earlier that day threatened Brantley during an argument.

Defendant relies upon evidence attributing the attack upon Brantley to inmate Murcheson who was located in Cell 36, the fourth cell past Cell 32 in the direction Brantley was moving prior to the attack. This evidence included the testimony of inmate Antonio Fambro, who stated that Murcheson had admitted committing the attack.

Defendant argues that Fambro’s testimony, that he knew inmate Murcheson did it “[c]ause he told me he did,” provides probative, direct, and uncontradicted evidence in the form of an admission against penal interest which must prevail over the “circumstantial evidence” of his guilt. This position, based on the proposition stated in State v. Crisanti, 220 Ga. App. 705, 711 (2) (470 SE2d 314), that a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence to the contrary, is fatally flawed.

It is Fambro’s testimony as to Murcheson’s statement which lacks probative value. Since Murcheson did not testify at trial, his declaration to Fambro that he, rather than defendant, committed the offense falls squarely within the Georgia hearsay rule and is not admissible under any exception thereto. Gardner v. State, 263 Ga. 197, 198 (4) (429 SE2d 657). Hearsay evidence has no probative value even when admitted without objection. Germany v. State, 235 Ga. 836, 840 (221 SE2d 817).

Decided May 18, 1999

Reconsideration dismissed June 8, 1999.

Cheney, Waters, Gross & Gay, Glen A. Cheney, for appellant.

J. Thomas Durden, Jr., District Attorney, Timothy B. Lumpkin, Assistant District Attorney, for appellee.

Other evidence relied upon by defendant related to the physical circumstances following the attack, including the absence of liquid on the floor outside defendant’s cell and the presence of a puddle of liquid along with a “couple” of spoon packs on the floor outside Cells 35 and 36. However, these circumstances do not preclude a conclusion that the attack originated in defendant’s cell since the absence of correctional officers from the cell tier for a period following the attack provided an opportunity for liquid to be poured on the floor for the purpose of creating a mistaken impression as to where the attack had originated.

Ultimately, the jury was faced with determining the credibility of Reeves. Reeves testified that he was two or three feet behind Brantley, that he had just reached down and picked up a fallen spoon pack when he saw the liquid substance coming out of the cell, that he looked up and got the cell number and wrote it down on either his hand or a piece of paper as he was trying to get Brantley out of the area. Defendant attacked the credibility of Reeves, in part by attempting to show that things happened too fast after the attack for him to have written down the cell number.

The determination of the factual issues, including those relating to the credibility of witnesses and resolving conflicts in the evidence, was a matter particularly for the jury. Bowden v. State, 270 Ga. 19, 21 (4) (504 SE2d 699); Norris v. State, 258 Ga. 889, 890 (376 SE2d 653); Holland v. State, 232 Ga. App. 284 (1) (501 SE2d 829). We have carefully reviewed the transcript and find that the evidence is sufficient to authorize a rational trier of fact to determine that defendant is guilty beyond a reasonable doubt of the offense of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Holloway v. State, 222 Ga. App. 350 (474 SE2d 249).

Judgment affirmed.

Andrews and Ruffin, JJ, concur.


author: Ruffin, Judge.

text:
    A99A0385.
    LUCAS v. LOVE et al.
    (519 SE2d 253)
   Ruffin, Judge.

Will Lucas sued Connie Love and her employer, Federal Express, for injuries he sustained in an automobile accident. A jury found in favor of the defendants, and Lucas appeals asserting numerous errors. Lucas’ assertions lack merit and we affirm.

1. Lucas challenges the sufficiency of the evidence, contending that there was “no evidence” to support the jury’s verdict. Once a jury has returned a verdict and it has been approved by the trial court, we will affirm the verdict “if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence.” Light v. Mason, 225 Ga. App. 260 (1) (483 SE2d 685) (1997). In evaluating a challenge to the sufficiency of the evidence, we construe the evidence in the light most favorable to uphold the verdict. Mattox v. MARTA, 200 Ga. App. 697 (409 SE2d 267) (1991).

So construed, the evidence shows that on the morning of April 11,1995, Lucas and his passenger, Willie Willis, were headed east on Highway 85 in a 1988 Mercury Marquis. Connie Love, a courier for Federal Express, was traveling behind Lucas in a Ford Econoline van. According to both Lucas and Love, it was misting outside and the roads were wet. Both drivers were traveling below the 55-mph speed limit. Love estimated she was driving 35-45 mph.

Lucas testified that as he crested a hill on Highway 85, he saw two state trooper patrol cars, with lights flashing, parked on the side of the road. In addition, Lucas saw an ambulance, also with lights flashing, backing into the road. Lucas slowed down in case he needed to stop for the ambulance. Love, who was several car lengths behind Lucas, crested the hill and saw both the ambulance and Lucas’ car. She immediately applied her brakes, but was unable to stop before rear-ending Lucas. According to Love, her brakes locked, causing her to skid on the wet road.

Under these circumstances, the jury was authorized to conclude that Love was not negligent. See James v. Tyler, 215 Ga. App. 479, 480 (1) (451 SE2d 506) (1994) (in rear-end collision cases, issues of liability are for the jury to decide). Accordingly, Lucas’ claim is without merit. See also Willis v. Love, 232 Ga. App. 543 (502 SE2d 487) (1998) (trial court did not err in denying Willis’ motion for directed verdict).

2. In his second enumeration of error, Lucas contends that the trial court erred in permitting the defendants’ attorney to ask Love whether she felt that she was “a safe enough distance away [from Lucas] to come to ... a complete stop if anything happened on the wet roads.” At trial, Lucas objected to this question because it called for an opinion that Love was not qualified to give. The trial court did not err in overruling this objection as a lay witness may express opinions regarding speed and stopping distance based upon personal observations. Fouts v. Builders Transport, 222 Ga. App. 568, 575 (6) (474 SE2d 746) (1996).

On appeal, Lucas maintains that the question posed to Love relates to the ultimate issue of Love’s negligence and, as such, improperly invades the province of the jury. Because Lucas failed to make this specific objection at trial, he has waived the issue on appeal. Dept. of Transp. v. Cannady, 230 Ga. App. 585, 590 (2) (497 SE2d 72) (1998).

3. Lucas claims that the trial court erred in admitting into evidence a complaint that he had filed in state court relating to the same incident. After Lucas testified that he had not come to a complete stop when he was rear-ended by Love, the defendants’ attorney asked him about the averment in the earlier complaint that he had come to a complete stop. The defendants then tendered the prior complaint into evidence. At trial, Lucas contended that the complaint was inadmissible because it had “served [the defendants’] purpose . . . for impeachment” and admitting the document into evidence would “just [be] a rehashment.” Contrary to Lucas’ contention, the complaint did not “rehash” his testimony as he never admitted to having stopped prior to the accident. Thus, to the extent that the complaint contradicted Lucas’ testimony, it was admissible as impeachment evidence. See Cook v. Partain, 224 Ga. App. 251, 252 (1) (a) (480 SE2d 279) (1997); Dickey v. State, 240 Ga. 634, 638-639 (3) (242 SE2d 55) (1978).

On appeal, Lucas argues that the trial court improperly admitted the document as an admission and that the document served no proper impeachment purpose. As Lucas did not object on these grounds at trial, error, if any, is waived. See Cannady, supra.

4. In four enumerations of error, Lucas argues that the trial court erred in charging the jury. “It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error.” (Punctuation omitted.) Clemons v. Atlanta Neurological Institute, 192 Ga. App. 399, 401 (1) (b) (384 SE2d 881) (1989). Moreover, a trial court does not err in refusing to give a requested charge that is not legally accurate and adjusted to the evidence. Gen. Ins. Svcs. v. Marcola, 231 Ga. App. 144, 147 (4) (497 SE2d 679) (1998).

(a) Lucas asserts that the trial court erred in charging the doctrine of sudden emergency. As set forth in Holt v. Scott, 226 Ga. App. 812, 815 (2) (487 SE2d 657) (1997),

[t]he doctrine of sudden emergency refers only to those acts which occur immediately following the apprehension of the danger or crisis and before there is time for careful reflection. The rule of sudden emergency is that one who in a sudden emergency acts according to [her] best judgment or, because of want of time in which to form a judgment, acts in the most judicious manner, is not chargeable with negligence. An emergency is a “sudden peril” caused by circumstances in which the defendant did not participate and which offered [her] a choice of conduct without time for thought so that negligence in [her] choice might be attributable not to lack of care but to lack of time to assess the situation.

(Punctuation omitted.) According to Lucas, the charge was inappropriate because Love did not offer any testimony indicating that she had a choice of conduct. The defendants, on the other hand, contend that a charge on sudden emergency was warranted because the photographs tendered into evidence showed that Love had room to pass Lucas on the shoulder of the road rather than hit him from behind.

A jury charge need not be supported by overwhelming evidence. Fouts, supra at 570 (1). It is enough if there is sufficient evidence from which jurors can carry on a legitimate process of reasoning. Id. Here, the issue to be decided was whether Love was negligent in rear-ending Lucas. The photographs tendered by both parties showed that the shoulder of the road appeared wide enough for Love to have passed Lucas. Thus, to the extent that the jury might have penalized Love for failing to pass Lucas on the shoulder, a charge on sudden emergency was appropriate. See Willis, supra at 545 (2) (b).

(b) Lucas also maintains that the trial court erred in refusing to give his requested charge on OCGA § 40-6-74 regarding a driver’s duty to stop when approached by emergency vehicles with lights flashing. Here, the emergency vehicles were not approaching Lucas, but either were on the side of the road or backing onto the road. Moreover, Lucas testified that he did not stop when he saw the vehicles as required by the Code section. Accordingly, the trial court did not err in refusing to give this charge as it was not adjusted to the evidence. See Shilliday v. Dunaway, 220 Ga. App. 406, 410 (7) (469 SE2d 485) (1996).

(c) Lucas contends that the trial court erred in charging the jury “that negligence cannot be inferred from the mere happening of an event.” However, this charge represents an accurate statement of the law, and thus the trial court did not err in giving it. See Consolidated Freightways v. Futrell, 201 Ga. App. 233, 235-236 (5) (410 SE2d 751) (1991).

Decided June 8, 1999.

L. B. Kent, for appellant.

Bovis, Kyle & Burch, John H. Peavy, Jr., for appellees.

(d) Finally, Lucas argues that the trial court erred in charging the jury that “the mere fact that the vehicle is struck by another vehicle does not establish liability on the driver of either vehicle.” Lucas maintains that, under the facts of this case, Love’s negligence can be presumed. We disagree. Even in rear-end collisions, “Negligence is not to be presumed, but is a matter for affirmative proof.” Cagle v. Ameagle Contractors, 209 Ga. App. 712 (434 SE2d 546) (1993). Accordingly, the trial court did not err in giving the charge as it represents an accurate statement of abstract principles of law. Meeks v. Cason, 208 Ga. App. 658, 660-661 (1) (431 SE2d 407) (1993).

Judgment affirmed.

McMurray, P. J, and Andrews, J., concur.

       In a separate trial, Willis sued the defendants, alleging she sustained injuries attributable to Love’s negligence. Following a defense verdict, Willis appealed. We affirmed the verdict in Willis v. Love, 232 Ga. App. 543 (502 SE2d 487) (1998).


text:
    A99A0997.
    NASH v. PIERCE et al.
    (519 SE2d 462)
   Judge Harold R. Banke.

Three members of the Madison County Board of Commissioners (Pierce, Clark, and Fortson) sought injunctive relief against Commission Chairman Wesley J. Nash. Following a bench trial, the court found in their favor and ordered Nash to comply with certain mandates, to cease certain other activities, and to use county funds to pay certain expenses. Nash asserts three errors on appeal. Held:

1. First, Nash contends the trial court erred in ordering him to use county funds to pay the legal expenses incurred by Commissioner Clark in prevailing in a recall action filed against Clark in probate court. The trial court relied on a written county policy in ordering this payment. See OCGA § 45-9-21.

In their briefs, the parties admit that Nash has since made the payment. An appellant’s voluntary payment of the judgment renders moot the issues sought to be determined on appeal. Morris v. Morris, 242 Ga. 591 (1) (250 SE2d 459) (1978); Keener v. King Hardware Co., 215 Ga. 577 (111 SE2d 215) (1959); Ralston v. Etowah Bank, 207 Ga. App. 775, 776 (1) (429 SE2d 102) (1993).

Decided June 8, 1999.

William C. Bushnell, for appellant.

R. Dale Perry, for appellees.

2. Second, Nash challenges the court’s determination that he could not hold the position of county treasurer in addition to the chairmanship. The court acknowledged that the local act establishing the Madison County Commission provided that the commission chairman would also serve as the county treasurer. See Ga. L. 1965, p. 2670, § 8. But the court concluded that OCGA § 36-6-1 (a), which provides that no other county officer can also be county treasurer, contradicted the local act and as a general law prevailed. The court was correct. Ga. Const. of 1983, Art. III, Sec. VI, Par. IV (a); Studstill v. Gary, 216 Ga. 268, 269 (2) (116 SE2d 213) (1960).

3. Third, Nash challenges the court’s permanent injunction enjoining him “from making any purchase or expenditure over One Hundred Dollars without the specific concurrence and approval of the Board of Commissioners.” The local act establishing the Madison County Commission provides differently, stating that prior approval of the board is required for purchases or purchase contracts exceeding $100 except for repairs of machinery, roads, bridges and emergency repairs to other county property and except for purchases or purchase contracts permitted or called for under the previously-established general policy of the board. Ga. L. 1965, p. 2674, § 19.

Accordingly, this portion of the judgment is vacated, and the case is remanded with the instruction to conform the injunction to the legislative language.

Judgment affirmed in part and reversed in part and case remanded with direction.

Blackburn, R J., and Barnes, J., concur.

       The Supreme Court transferred the case to this court, finding equitable relief was ancillary to interpreting local ordinances. See Beauchamp v. Knight, 261 Ga. 608 (409 SE2d 208) (1991).