text:
    A89A1517.
    SCOGGINS v. APAC-GEORGIA, INC.
    (388 SE2d 58)
   Birdsong, Judge.

Terry William Scoggins (Scoggins) appeals from the grant of summary judgment to APAC-Georgia, Inc. (APAC) on his personal injury claims against APAC arising from a motorcycle accident. Scoggins’ sole enumeration of error is that the trial court erred in holding that there was no genuine issue of material fact as to APAC’s negligence.

The record shows that Scoggins’ complaint alleged that APAC was engaged in construction for widening Interstate 75 near the Lakewood Freeway intersection, that APAC had heavy equipment that caused a dangerous condition to exist on the freeway exit ramp, that APAC failed to post notices warning motorists of the dangerous condition, and that Scoggins was injured as a result of losing control of his motorcycle when he drove over the dangerous condition APAC created.

APAC answered, denying liability, and then moved for summary judgment based upon affidavits and Scoggins’ deposition and discovery responses. The matters submitted in support of the motion established that APAC had not performed any work on the Lakewood Freeway exit ramp, had no knowledge of the alleged dangerous conditions on the roadway, was not responsible for any dangerous conditions on the ramp, and did not cause the accident in which Scoggins was injured.

Scoggins responded to the motion by asserting that APAC had been working in the area with heavy equipment and that some construction equipment had crossed the curb. He did not, however, come forward with any evidence showing that APAC had caused any of the conditions of which Scoggins complained, and did not show that APAC was responsible for causing the dangerous conditions on the exit ramp.

Based upon the record established, the trial court granted summary judgment to APAC. The order granting summary judgment stated that while there might have been a question of fact concerning any accumulation of debris on the roadway, no question of fact existed about APAC’s negligence or about the causation of the debris. The trial court found there was no evidence that APAC was negligent, or that APAC did anything to cause or contribute to the accumulation of the debris or to the accident itself. The court also found that there was no evidence of a causal connection between APAC’s conduct and Scoggins’ injuries. Held:

APAC, as a defendant moving for summary judgment, had the burden of establishing that there were no issues of material fact and that it was entitled to judgment as a matter of law. OCGA § 9-11-56 (c). Its burden was to pierce Scoggins’ pleadings by negating affirmatively at least one of the essential elements of his complaint, Corbitt v. Harris, 182 Ga. App. 81 (354 SE2d 637), and to establish as a matter of law that Scoggins could not recover under any theory of recovery fairly drawn from the pleadings and evidence. Reed v. Adventist Health Systems &c., 181 Ga. App. 750, 752 (353 SE2d 523).

Since APAC’s motion was based upon the absence of proof that it in any way caused the accident, APAC would be entitled to summary judgment if it demonstrated plainly and palpably that its activities were not the proximate cause of Scoggins’ injuries, Ryder Truck Rental v. Carter, 189 Ga. App. 43, 44 (374 SE2d 830), and that reasonable minds could not disagree on this point. North v. Toco Hills, 160 Ga. App. 116, 119 (286 SE2d 346). Of course, summary judgment is appropriate when the absence of the defendant’s liability is established by plain, palpable, and indisputable evidence, Leonard v. Bleser, 184 Ga. App. 600, 601 (362 SE2d 68), and when a defendant is guilty of no negligence, it can be granted summary judgment. Perry v. Lyons, 124 Ga. App. 211, 219 (183 SE2d 467).

As the materials submitted in support of APAC’s motion pierced Scoggins’ pleadings, Waldrep v. Goodwin, 230 Ga. 1, 2 (195 SE2d 432), Scoggins was required to set forth specific facts showing there is a genuine issue for trial or summary judgment would be entered against him. Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 604 (203 SE2d 173). Scoggins’ rebuttal, however, was limited to showing that APAC had employees working in the area some “few hundred feet” from the site of his accident on the exit ramp, that some equipment had worn or scarred the roadway, and that he saw “a construction vehicle” spill “fuel and dirt” on the pavement. He produced no evidence that any of APAC’s employees worked on the exit ramp, that APAC’s vehicles caused the scarring of the roadway, or that the construction vehicle he saw spill on the roadway was connected to APAC. Instead, Scoggins, in effect, asked the trial court to infer from the evidence he submitted that APAC also worked on the exit ramp, that its vehicles scarred the pavement, and that it was an APAC vehicle he saw spill on the roadway.

Decided November 9, 1989.

Ronald F. Chalker, Jesse E. Barrow III, Robert A. Falanga, for appellant.

Webb & Daniel, Harold T. Daniel, Jr., Marcia D. Ernst, for appellee.

In the face of APAC’s uncontradicted evidence to the contrary, the evidence submitted by Scoggins was not sufficient to meet his burden. Scoggins was required to produce facts which contradicted APAC’s facts, but he produced only circumstantial evidence from which the inconsistent facts could be inferred, but which clearly were not demanded. See generally Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776 (257 SE2d 186). Thus, the circumstantial evidence offered by Scoggins had no probative value against the uncontradicted positive evidence that APAC did not work on the exit ramp, did not scar the pavement, and did not spill anything on the exit ramp which caused the accident. Esco v. Jackson, 185 Ga. App. 901, 903-904 (366 SE2d 309); Cohen v. Hartlage, 179 Ga. App. 847, 850-851 (348 SE2d 331).

In this case there is a complete absence of evidence that APAC caused Scoggins’ accident, and thus giving Scoggins the benefit of all reasonable doubt as well as construing the evidence and all inferences and conclusions arising therefrom in his favor, Peterson v. Liberty Mut. Ins. Co., 188 Ga. App. 420, 422 (373 SE2d 515), he failed to carry his burden. Accordingly, Scoggins failed to establish that there was a genuine issue of fact for trial and, under the circumstances, the trial court properly granted summary judgment to APAC.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


source: Caselaw Access Project

author: Benham, Judge.

license: Public Domain

text:
    A89A1564.
    HARRIS et al. v. BOYD et al.
    (388 SE2d 60)
   Benham, Judge.

This is an appeal from the grant of summary judgment in favor of appellees. Shortly after his wife was killed in a train accident, appellant Richard Harris settled his claim against the railroad for her wrongful death for $30,000, and gave the money to his mother, appellant Jackie Harris. Appellees, the guardian and next friend of the decedent’s minor child, sued Richard Harris and, by amendment, his mother, to recover one-half of the settlement proceeds. Contending that an agent of the railroad represented to Mr. Harris that he was settling only his portion of the wrongful death claim and not the claim of his wife’s minor child, appellants filed a third-party action alleging fraud against the railroad.

1. In their first enumeration of error, appellants contend that the trial court erred in granting summary judgment to appellees. Summary judgment is appropriate where “the pleadings . . . together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . .” OCGA § 9-11-56 (c). Appellants responded to appellees’ motion for summary judgment with affidavits which merely set forth the alleged fraud perpetrated by the railroad. While those facts may be relevant to the third-party action between appellants and the railroad, they are not relevant to the issue in the main action, which is whether the decedent’s child is entitled to one-half of the settlement proceeds pursuant to OCGA § 51-4-2 (d) (1). In responding to a motion for summary judgment, “an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided . . . must set forth specific facts showing that there is a genuine issue for trial.” OCGA § 9-11-56 (e). See also Behar v. Aero Med Intl., 185 Ga. App. 845 (1) (366 SE2d 223) (1988).

Although we find no error in the trial court’s conclusion that there were no genuine issues of material fact for trial, summary judgment is not proper unless the moving party is entitled to a judgment as a matter of law. It is undisputed that Mr. Harris received $30,000 for the wrongful death of his wife and gave the money to his mother. Appellants’ contention that Mr. Harris settled only his portion of the wrongful death claim and not the child’s claim is defective in that it assumes that the child has a separate cause of action for the wrongful death of his mother. However, the legislature gave the cause of action for the wrongful death of a spouse exclusively to the surviving spouse (OCGA § 51-4-2 (a)), and the children of the deceased have only a right to share in any amount recovered by the surviving spouse. OCGA § 51-4-2 (d) (1). Thus, Mr. Harris was the only possible plaintiff and was expressly authorized by statute to “release the alleged wrongdoer without the concurrence of the child or children or any representative thereof and without any order of court. ...” OCGA § 51-4-2 (c); Morris v. Clark, 189 Ga. App. 228 (2) (375 SE2d 616) (1988). Since the statute provides for only one cause of action, which is in the surviving spouse, and that surviving spouse has a duty to hold the amount recovered as if it were personal property descending from the decedent to the surviving spouse and the children, the trial court did not err in concluding that appellees were entitled to a judgment as a matter of law against Richard Harris or in applying OCGA § 51-4-2, as contended in appellants’ third enumeration of error.

Decided November 9, 1989.

Morris & Webster, F. Leonard Morris, Jr., for appellants.

However, we do not find that appellees have set forth any legal theory under which they are entitled to a judgment as a matter of law against appellant Jackie Harris, who had no such statutory duty, and we reverse the trial court’s grant of summary judgment against Jackie Harris.

2. Appellants contend that the application of OCGA § 51-4-2 denies Richard Harris due process by making him a fiduciary of the decedent’s child without notice and an opportunity to be heard. The gravemen of appellants’ argument is that Richard Harris had no knowledge of OCGA § 51-4-2 or his duty to share the proceeds of the wrongful death recovery with the decedent’s child. However, appellant was charged with notice of the statute. “OCGA § 1-3-6 provides that: ‘(T)he laws of this state are obligatory upon all the inhabitants thereof. Ignorance of the law excuses no one.’ ” City Council of St. Marys v. Crump, 251 Ga. 594 (2) (308 SE2d 180) (1983). Due process does not require that a surviving spouse be given notice of his statutory duty to share the proceeds from a wrongful death recovery with the decedent’s children. See City Council of St. Marys, supra; Hale v. State, 188 Ga. App. 524 (1) (373 SE2d 250) (1988).

3. Appellants enumerate as error the trial court’s grant of summary judgment prior to deciding the issues raised in the third-party complaint. There is no requirement that a trial court decide a third-party action before ruling on the main action. “[Jurisdiction over a third-party direct damage claim is not destroyed if the original action is settled or disposed of in some fashion before adjudication of such claim; but the court, in the exercise of its discretion, either may proceed with the claim or dismiss it. [Cit.]” Cohen v. McLaughlin, 250 Ga. 661 (3) (301 SE2d 37) (1983). The trial court did not err in granting summary judgment prior to disposing of the third-party complaint.

4. Appellees’ motion for an assessment of damages for frivolous appeal is denied.

Judgment affirmed in part and reversed in part.

Deen, P. J., and Birdsong, J., concur.

Thomas & McClain, Tom W. Thomas, for appellees.


author: Deen, Presiding Judge.

text:
    A89A1640.
    COSTARIDES et al. v. SKELTON et al.
    (388 SE2d 62)
   Deen, Presiding Judge.

The appellants, Vasiliki and Vasilios Costarides, commenced this action against the appellees, Elizabeth and Douglas Skelton, to recover for injuries allegedly sustained in an automobile collision which admittedly was the fault of Elizabeth Skelton. Following trial, the jury returned a verdict for the defendant appellees, and the Costarideses appeal. Held:

1. The appellants contend that the verdict is contrary to the evidence. The evidence showed that the day after the collision Vasiliki Costarides went to her doctor complaining of abdominal pain. The physician prescribed a mild analgesic, and next heard from her five days later when she was hospitalized for acute abdominal pain. He referred the case to a surgeon, who recommended and performed exploratory surgery, suspecting a ruptured spleen. The spleen, however, was normal, but a small hemmorhagic ovarian cyst was found. The surgeon indicated at trial that such cysts can produce pain, but that he did not believe this cyst could have produced the symptoms complained of by Mrs. Costarides. Following this hospitalization, Mrs. Costarides was treated for a urinary tract infection, attributed to catheterization during the hospitalization. At the time of Mrs. Costarides’ hospitalization, however, her white blood cell count was slightly elevated, which could be indicative of infection.

Even though a verdict may be against the preponderance of the evidence, the appellate court cannot interfere with that verdict if it is supported by some evidence. Energy Contractors v. Ga. Metal Systems &c., 186 Ga. App. 475 (367 SE2d 324) (1988). In the instant case, the evidence authorized the jury’s finding that the collision had caused no personal injury to Mrs. Costarides.

2. The appellants also contend that the trial court made several errors in instructing the jury. None of those contentions has any merit.

The appellants’ requested charges on negligence were unnecessary and inapplicable, since the appellees acknowledge fault for the collision, and the trial court did not err in omitting the charges. Sapp v. Johnson, 184 Ga. App. 603 (1) (362 SE2d 82) (1987). The requested charges on the family purpose doctrine, proximate cause, and pain and suffering were adequately covered in the trial court’s standard charge. Union Camp Corp. v. Daley, 188 Ga. App. 756 (5) (374 SE2d 329) (1988). The appellants requested three separate charges covering the same principle on scarring as an element of pain and suffering; the trial court gave one of the charges, and did not err in omitting the other two. The trial court also correctly omitted the requested charge on negligent and non-negligent activities as causes of an injury, because the charge was confusing, as well as the charge that if the jury found the defendants’ negligence to be the proximate cause of the plaintiff’s injuries, the jury could find the defendants liable, because that charge was argumentative. Sapp v. Johnson, supra. The appellants waived their present objection to the trial court’s recharge, by failing to raise their objections below. Morris v. DeLong, 183 Ga. App. 124 (2) (358 SE2d 285) (1987).

Decided November 9, 1989.

Richardson, Chenggis & Constantinides, Platon P. Constantinides, for appellants.

Greer, Klosik & Daugherty, John F. Daugherty, William L. Swank II, for appellees.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A1657, A89A1658.
    CHERRY et al. v. HERSCH et al.
    (388 SE2d 64)
   Deen, Presiding Judge.

On July 14, 1986, the plaintiff-appellant Dede Cherry was assaulted, robbed, and raped by Jeffrey Russell. She and her husband, Ricky Cherry, brought an action against Nica Hersch and J. Brown Moseley, Mitchell County District Attorney; Dot Brown, Mitchell County Superior Court Clerk; and the Mitchell County Superior Court Clerk’s Office for their alleged failure to properly process a plea to a crime previously committed by Russell, who therefore was at liberty when the opportunity to attack Mrs. Cherry arose. Mr. Cherry has joined in his wife’s action and has claimed damages for loss of consortium. The appellants contend that had the guilty plea been processed as it should have been, Russell would not have been released from jail (where he was serving time for prior convictions), and therefore could not have assaulted, robbed, and raped Mrs. Cherry. The defendants-appellees asserted the defenses of prosecutorial immunity and intervening criminal act.

On April 6, 1988, Hersch and Moseley were granted summary judgment on all grounds, and on April 26 Mr. and Mrs. Cherry moved to certify this judgment as a final judgment. On June 2,1988, the trial court entered an order styled “Final Judgment,” and stating in its entirety: “Summary judgment having been granted to Defendants Nica Hersch and J. Brown Moseley on April 6, 1988, the clerk is directed to enter final judgment in their favor.” The appellants did not file a notice of appeal from this order until July 11, 1988 (39 days after the order was rendered). On September 27, 1988, the trial court dismissed this notice of appeal as untimely, pursuant to a motion to dismiss filed by Hersch and Moseley. On November 9, 1988, a final judgment was entered dismissing with prejudice the remaining two defendants, Dot Brown and the Mitchell County Clerk’s Office.

Mr. & Mrs. Cherry have filed two appeals. In Case No. A89A1657 they appeal the order dismissing their July 11, 1988, notice of appeal. In Case No. A89A1658 they appeal the April 6, 1988, order granting summary judgment to Hersch and Moseley. Held:

1. The appellants assert that the June 2, 1988, “Final Judgment” order was not a final, appealable order because it lacked the exact “finality and delay” language contained in OCGA § 9-11-54 (b), and that because this order was not appealable, their July 1988 appeal was premature and void, making their current appeal proper.

Under OCGA § 5-6-34, all final judgments, except those deemed to be discretionary, are directly appealable to this court. However, in a multiple-party case, an entry of a judgment as to one or more but fewer than all of the claims or parties is a final, appealable judgment under OCGA § 9-11-54 (b) only upon “an express determination that there is no just reason for delay and upon an express direction for the entry of judgment” by the trial court. OCGA § 9-11-54 (b); Culwell v. Lomas & Nettleton Co., 242 Ga. 242, 243 (248 SE2d 641) (1978). “If the trial court does certify that the judgment is final and ripe for review” under OCGA § 9-11-54 (b), the jurisdictional thirty-day period for filing an appeal begins to run from the date of certification. Culwell, supra at 243.

In the instant case the June 2 “Final Judgment” order did not recite the exact language of OCGA § 9-11-54 (b). However, the order makes express provisions and shows by its langüage (“Final Judgment . . . [C]lerk is directed to enter final judgment in [Hersch’s and Moseley’s] favor”) a clear intent by the trial judge that the order be final, and therefore appealable as to Hersch and Moseley. See Parks v. Atlanta Public School System, 168 Ga. App. 572, 576 (309 SE2d 645) (1983); see also Republic of Italy v. De Angelis, 206 F2d 121, 132 (D. C. Cir. 1953) (concurring opinion). (“[W]hile the judge did not make a finding of finality in the very words of the rule, he did so in substantial effect. . . . His intent being so clear, it would be bootless to send it back for a better formulation of the appeal formula.”)

Furthermore, it was pursuant to a request by the appellants that the order was certified as a final judgment. The appellants cannot now repudiate their earlier attempt at appeal by claiming it to have been premature, and then on that basis claim the instant appeal to be timely. Printup v. Smith, 212 Ga. 501, 502 (93 SE2d 679) (1956). Because the appellants did not appeal within the prescribed thirty-day period, they thereby waived their right of appeal. Parks v. Atlanta Public School System, supra at 576. Therefore, the order dismissing the appellants’ July 11, 1988, appeal was proper, and Case No. A89A1657 should be affirmed.

Decided November 9, 1989.

Cherry & Givens, John K. Givens, for appellants.

Michael J. Bowers, Attorney General, William B. Hill, Jr., Deputy Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Cathy A. Cox, Assistant Attorney General, Drew, Eckl & Farnham, Theodore Freeman, for appellees.

2. Since Mr. and Mrs. Cherry failed to file a timely appeal from the “Final Judgment” order as discussed above in Division 1, this court is without jurisdiction to review the trial court’s grant of summary judgment as to appellees Hersch and Moseley. Quarterman v. Quarterman, 170 Ga. App. 376, 377 (317 SE2d 206) (1983). Therefore, the appeal in Case No. A89A1658 must be and hereby is dismissed.

Judgment affirmed in Case No. A89A1657. The appeal is dismissed in Case No. A89A1658.

Birdsong and Benham, JJ., concur.


text:
    A89A1659.
    PRATT v. TRI CITY HOSPITAL AUTHORITY.
    (388 SE2d 69)
   Deen, Presiding Judge.

The appellee commenced this action against the appellant to recover $952.50, plus interest, due on an account. This discretionary appeal follows from the trial court’s grant of summary judgment for the appellee.

In support of its motion for summary judgment, the appellee submitted the affidavit of its employee in charge of its account books and records, in which the employee stated that her review of those records revealed a balance of $952.50 due from the appellant. The appellant contended below and contends before this court that that affidavit was insufficient because the pertinent records referred to in the affidavit were not attached to the affidavit.

OCGA § 9-11-56 (e) provides that “[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.” In the instant case, it must be emphasized that the affiant’s knowledge derived from her review of the account records, rather than from the facts from which the account records were made up. Cf. Don Howard’s Music Mart v. Southern Bell Tel. &c. Co., 154 Ga. App. 648 (269 SE2d 506) (1980). Where records relied upon and referred to in an affidavit are neither attached to the affidavit nor included in the record and clearly identified in the affidavit, the affidavit is insufficient. Bush v. Legum, 176 Ga. App. 395 (336 SE2d 284) (1985). The appellee should have attached copies of the records pertinent to the appellant’s debt. See Logan v. American Bankers &c. Co., 168 Ga. App. 647 (1) (310 SE2d 263) (1983). Accordingly, the affidavit was insufficient to support the grant of summary judgment for the appellee.

Decided November 9, 1989.

Levy & Adams, Merrill Adams, for appellant.

Clark, Mascaro & Associates, Karen Mascaro, Jeffery L. Hersh, for appellee.

Judgment reversed.

Birdsong and Benham, JJ., concur.


text:
    A89A1720.
    CAMPBELL v. HOLCOMB et al.
    (388 SE2d 65)
   Deen, Presiding Judge.

In this appeal we must determine whether the trial court erred in granting visitation rights to the paternal grandparents of a minor child after the child’s natural father’s parental rights had been terminated and the child had been adopted by his stepfather.

In the instant case the natural parents of seven-year-old Devin Hugh Campbell, formerly Devin Hugh Holcomb, are Laura Ann Holcomb Campbell and David Hugh Holcomb. They were divorced in 1987, and Mrs. Campbell, then Mrs. Holcomb, was given custody of the minor child.

On October 3, 1988, David Holcomb relinquished all parental rights. The plaintiffs/appellees Judith Mayo and Bobby Hugh Holcomb, parents of David Holcomb and paternal grandparents of the minor child, subsequently filed a petition for visitation rights. Mark Campbell, appellant’s present husband, filed an adoption petition, and on February 16, 1989, a judgment of adoption was entered. In the meanwhile, on December 13, 1988, a temporary order was entered granting visitation rights to the grandparents.

On March 16, 1989, the trial court, over appellant’s objections, again granted visitation rights to the paternal grandparents, holding that neither OCGA § 19-7-3 nor § 19-8-14 barred the award of visitation. Mrs. Campbell filed an interlocutory appeal, and this court granted the appeal. Mrs. Campbell contends that the adoption cut off all relations between the grandparents and the minor child under OCGA § 19-8-14, and thus, under OCGA § 19-7-3, the grandparents are not now entitled to visitation rights. Held:

OCGA § 19-8-14 (a) provides: “A decree of adoption . . . shall have the following effect as to matters within the jurisdiction of or before a court in this state: (1) Except with respect to a spouse of the petitioner and relatives of the spouse, a decree of adoption relieves the natural parent(s) of the adopted individual of all parental rights and responsibilities and terminates all legal relationships between the adopted individual and his relatives, including his natural parent(s), so that the adopted individual thereafter is a stranger to his former relatives for all purposes. . . .” As to grandparent visitation rights, OCGA § 19-7-3 provides: “(a) As used in this Code section, the term ‘grandparent’ means the parent of a parent of a minor child, the parent of a minor child’s parent who has died, and the parent of a minor child’s parent whose parental rights have been terminated, (b) Any grandparent shall have the right to file an original action for visitation rights to a minor child or to intervene in and obtain visitation rights . . . whenever there has been an adoption iii which the adopted child has been adopted by the child’s blood relative, notwithstanding the provisions of Code Section 19-8-14.” (Emphasis supplied.)

The appellee/grandparents contend that OCGA § 19-7-3 constitutes an exception to § 19-8-14. However, OCGA § 19-7-3 clearly sets forth the single limited exception to the OCGA § 19-8-14 provisions which sever all former relationships of the adopted child. This limited exception occurs when the adoption is by a blood relative of the minor child. In all other adoptions, the severance provisions of OCGA § 19-8-14 control, thereby extinguishing any rights of visitation to the former grandparents. Compare Mitchell v. Erdmier, 253 Ga. 335, 336 (320 SE2d 163) (1984) (decided under the 1980 statute), and Heard v. Coleman, 181 Ga. App. 899, 900 (354 SE2d 164) (1987) (decided under the 1986 statute).

In the instant case the minor child was adopted by his stepfather, not by a blood relative; thus the situation here does not fall under the sole statutory exception of OCGA § 19-8-14. Therefore, the grandparents are not entitled to visitation rights, and the trial court erred in granting them. The judgment below must be and hereby is reversed.

Judgment reversed.

Birdsong and Benham, JJ., concur.

Decided November 9, 1989.

Cowen & Cowen, Martin L. Cowen III, for appellant.

Griffin E. Howell III, for appellees.

       Appellees contend that the fact that the grandparents originally filed their petition for visitation rights before the adoption had been completed should make a difference in the result. They cite no authority for this contention, and we find none.


text:
    A89A1983.
    SOUTHERN FARM BUREAU LIFE INSURANCE COMPANY v. DOUGLAS.
    (388 SE2d 67)
   Deen, Presiding Judge.

Thetus L. Douglas brought suit against Southern Farm Bureau Insurance Company, alleging that in 1978 he had purchased a life insurance policy in the amount of $150,000 through one of its agents and that he was assured at that time that in eight years the policy would accumulate a cash value equal to his premium plus $2,000 to $3,000. The face value of the policy was later raised to $200,000. In 1983 Douglas turned his policy over to the defendant’s agent and was told that his policy was being converted into one paying a higher rate of interest, and that he had paid all premiums when due. He claimed that he made no loans against the policy. In Count 1 of his complaint, Douglas contends that he contacted the defendant’s agents to inquire as to the total cash value of the policy, and that it was reported to be $43,800. Relying upon that representation, he signed the necessary papers to have the policy cancelled and to receive the cash value. He subsequently received a check in the amount of $17,344.27. He claims that he returned the check and was assured that a computer error had been made. He contends that the company has refused to pay him the full amount to which he is entitled under his policy. In Count 2 Douglas alleges that the full amount of his premiums had not been credited to his policy; that he had been informed that loans were made against his policy which have depleted its cash value; that he has not made any loans against the policy, and that any loans against it were made by the defendant’s agents or employees; and that the fraudulent acts of the defendant’s employees have damaged him in the amount of $40,922.21 plus interest. He also sought attorney fees and certain statutory penalties.

After filing an answer, which either denied the allegations made in the complaint or stated that it was without sufficient knowledge or information as to the truth of the allegations, the insurance company filed a motion pursuant to OCGA § 9-11-19 to join Gary Mimbs as a person needed for a just adjudication of the action. This motion was supported by the affidavit of Brenda Freeman, Manager, Special Products Services, of Southern Farm Bureau, which stated that the agent or employee referred to in the lawsuit is Gary Mimbs, as he was the agent with whom the plaintiff dealt and was the initiating agent on all policies issued to the plaintiff. The trial court denied the motion for joinder, and the insurance company was granted an interlocutory appeal. Held:

Decided November 9, 1989.

Ranitz, Mahoney, Forbes & Coolidge, Morton G. Forbes, Johnny A. Foster, for appellant.

Robert S. Reeves, for appellee.

OCGA § 9-11-19, joinder of persons needed for just adjudication, provides: “[a] Persons to be joined if feasible. A person who is subject to service of process shall be joined as a party in the action if: (1) In his absence complete relief cannot be afforded among thosé who are already parties.”

The main consideration concerning joinder “is whether any judgment that might be rendered will be adequate in the absence of the parties sought to be joined. If there are no ‘compelling reasons’ for the joinder of the third parties, then they are not indispensable to the action, and it is not ‘necessary’. . . to join them as parties defendant for a just adjudication of the merits of the action between the original parties ... To paraphrase the revised rule itself: Complete relief can be afforded between the two original parties to the action in the absence of the third parties.” Peoples Bank of LaGrange v. North Carolina Nat. Bank, 230 Ga. 389, 392 (197 SE2d 352) (1973). In Pickett v. Paine, 230 Ga. 786, 796 (199 SE2d 223) (1973), the court went on to enlarge the rule and adopt a two-pronged test, which holds that: “There are two essential tests of an indispensable party: (1) can relief be afforded the plaintiff without the presence of the other party? (2) can the case be decided on its merits without prejudicing the rights of the other party?” Applying these tests to the instant case, we find that Mimbs is an indispensable party and that the trial court erred in denying the motion for joinder.

Judgment reversed.

Birdsong and Benham, JJ., concur.


text:
    A89A2028.
    WILEY v. TANNER.
    (388 SE2d 70)
   Deen, Presiding Judge.

This appeal is from a judgment of the Clarke County Superior Court affirming the decision of the Board of Review of the Department of Labor upholding an Administrative Law-Judge’s finding that appellant was not qualified to receive unemployment compensation benefits pursuant to OCGA § 34-8-158 (2) (A).

Decided November 9, 1989.

Willie J. Woodruff, Jr., for appellant.

Michael J. Bowers, Attorney General, Harrison W. Kohler, Deputy Attorney General, Wayne P. Yancey, Senior Assistant Attorney General, Jeffrey L. Milsteen, Assistant Attorney General, Frances G. Lavender, for appellee.

Under OCGA § 5-6-35, appeals from the judgment of a superior court after review of the decision of a state agency must be filed as discretionary appeals. An appeal from such a judgment, which is not filed in accordance with the procedure prescribed in OCGA § 5-6-35, falls outside the jurisdiction of the Court of Appeals; such an appeal must therefore be dismissed. DePass v. Bd. of Review, 172 Ga. App. 561 (324 SE2d 505) (1984); Cook v. Caldwell, 166 Ga. App. 452 (305 SE2d 187) (1983).

Appeal dismissed.

Birdsong and Benham, JJ., concur.


text:
    A89A2117.
    MANLEY v. THE STATE.
    (389 SE2d 274)
    Decided November 9, 1989.
    Jerald Manley, pro se.

      Lewis R. Slaton, District Attorney, R. Andrew Weathers, Assis

      tant District Attorney, for appellee.
   Deen, Presiding Judge.

Counsel for appellant had his name deleted as counsel of record in this case on September 18, 1989, and order dated September 21, 1989, this court mailed an order to appellant requiring him to file an enumeration of errors and brief not later than September 26, 1989. This notice was mailed to appellant’s address, which he provided to his former counsel. It was returned to the Clerk of Court marked “no such address” on September 28, 1989. A brief and enumeration of errors have never been filed. Nevertheless, under this court’s holding in Conyers v. State, 183 Ga. App. 591 (359 SE2d 454) (1987), we have reviewed the entire record submitted on appeal. We find no error and affirm.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A0853.
    HAYWOOD v. AEROSPEC, INC.
    (388 SE2d 367)
   Benham, Judge.

Appellee sued appellant for an amount alleged to be due for repairs made on appellant’s aircraft and for storage of the aircraft. A verdict was directed for appellee on its claim and on appellant’s counterclaim. This appeal is from the judgment entered on that verdict.

1. Appellant’s first enumeration of error is that the trial court improperly forced him to trial without his attorney. The record shows, however, that appellant acknowledged that the attorney’s absence was brought about by appellant, that appellant expressly waived his attorney’s presence, and that appellant acquiesced in the trial court’s ruling that he would have to proceed in the absence of counsel. “ ‘Acquiescence completely deprives him of the right to complain further; he has agreed that the trial court’s ruling was correct by submitting to it.’ (Cit.)” Marlow v. Lanier, 157 Ga. App.. 184, 185 (276 SE2d 867) (1981).

2. Appellant’s second enumeration of error is directed toward the trial court’s refusal to enforce a subpoena. The reasons given by the trial court for not enforcing the subpoena were that it had expired and that it had been altered. We are aware of no such grounds for quashing a subpoena. They are issued in blank (OCGA § 24-10-20), to be filled in by the party serving them, and there is no prohibition in the statutory or case law against changing the information on unused subpoenas before serving them. The statute also gives no expiration date for subpoenas.

However, it appears from the record that the subpoena was invalid for a different reason. It was directed to an individual who is not a party to this case, but rather than being served on the individual to whom it was directed, it was served on the attorney for appellee. Although OCGA § 24-10-23 permits service on a party by service on that party’s attorney, it does not provide for such service on non-parties. “It was not error for the trial court to refuse to enforce the subpoena, there being no proof of any service in compliance with [OCGA § 24-10-23]. [Cit.]” Sullivan v. State, 154 Ga. App. 432 (1) (268 SE2d 698) (1980). The subpoena was thus unenforceable, albeit not for the reason given by the trial court. “Where the judgment of the trial court is proper and legal for any reason, it will be affirmed regardless of the reason assigned. [Cit.]” Johnson v. Barrett, 166 Ga. App. 353, 356 (304 SE2d 478) (1983).

3. Appellant amended his counterclaim late-on the afternoon of the Friday before trial began on Monday. The trial court struck the amendment on appellee’s motion, ruling that it was too late. That ruling was error since, in the absence of a pretrial order, an amendment may be filed up to the time evidence is taken at trial. Jackson v. Paces Ferry Dodge, 183 Ga. App. 502 (1) (359 SE2d 412) (1987). However, since appellant admitted at trial that the amendment dealt only with damages, the verdict against appellant on the issue of liability, a verdict not challenged on appeal, renders the error harmless. See Brand v. Montega Corp., 233 Ga. 32 (3) (209 SE2d 581) (1974).

Decided October 31, 1989

Rehearing denied November 13, 1989

Wm. Thomas Haywood III, for appellant.

Robert S. Haywood, pro se.

Steven E. Fanning, for appellee.

4. In his final enumeration of error, appellant complains of the trial court’s award of attorney fees to appellee. The motion was made under OCGA § 9-15-14 (b), and appellee’s counsel stated to the court the amount of his hourly rate and the number of hours he had worked on this case. The trial court agreed that this was a proper case for attorney fees, but awarded a sum substantially less than appellee’s counsel requested. Appellant insists that no attorney fees were proper.

An award of attorney fees pursuant to OCGA § 9-15-14 (b) “is discretionary and the standard of review is abuse of discretion.” Haggard v. Bd. of Regents &c. of Ga., 257 Ga. 524 (4c) (360 SE2d 566) (1987). The trial court directed a verdict against appellant on both the complaint and the counterclaim, a ruling which would be proper only in the absence of any evidence supporting appellant’s position. OCGA § 9-11-50 (a). That ruling has not been challenged on this appeal. In explaining its ruling on the request for attorney fees, the trial court noted that all the problems in this case resulted from appellant’s efforts to avoid paying what was due appellee. Under those circumstances, we find no abuse of discretion in the trial court’s award of attorney fees.

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


author: Birdsong, Judge.

text:
    A89A1113.
    ROGERS v. deMONTEGUIN.
    (388 SE2d 10)
   Birdsong, Judge.

A1 Rogers, a building contractor doing business as A1 Rogers Homework, appeals from the judgment of the trial court based upon a jury verdict in favor of deMonteguin. Appellee deMonteguin hired Rogers to remodel his home. There were substantial problems with the work Rogers performed, and finally Rogers left the job with the work unfinished. When the dispute could not be resolved otherwise, deMonteguin hired another contractor to complete Rogers’ work, and filed suit against Rogers for breach of contract, fraud, and interference of contract. He sought compensatory and punitive damages and attorney fees and expenses of litigation because of Rogers’ bad faith and stubborn litigiousness.

At trial, the jury initially returned a verdict for deMonteguin and awarded as follows: “breach of contract award $25,000. Attorney’s fees paid by the [defendant in the amount of $12,000; punitive damages paid by the [defendant in the amount of $12,600, total amount of $49,600.” The trial court noted that there was no finding of fraud and no damages awarded for fraud, and thus would not accept the verdict as rendered. The jury was instructed that punitive damages are not allowed merely for breach of contract, and that punitive damages could not be awarded unless the jury found that Rogers committed fraud. Further, the jury was instructed that before punitive, damages could be awarded for fraud, they must find compensatory or nominal damages as a result of the fraud. Thereafter, the jury returned a verdict for deMonteguin: “We, the jury, find in favor of the [p]laintiff, deMonteguin, breach of contract and . . . attorney’s fees award $36,000, fraud and deceit guilty, compensatory damages $1.00, punitive damages $5,000.”

Rogers asserts that the trial court erred by charging the jury on fraud because he contends that fraud cannot be based on an oral promise to do what one is already obligated to do; by charging on punitive damages when such damages were not raised by the evidence; and by, in effect, directing a verdict against him on the fraud issue by advising the jury that they could not return a verdict for punitive damages unless they first found fraud had been committed. Held:

1. Rogers argues an action for fraud cannot lie for his oral promise to complete the work, because it was no more than a statement or promise as to a future event, Jackson v. Brown, 209 Ga. 78, 80 (70 SE2d 756); Phillips v. Atlantic Bank &c. Co., 168 Ga. App. 590 (309 SE2d 813). Further, he contends that an action for fraud cannot be maintained against him for this promise because he was already obligated to complete the job, hence there was no consideration for his promise. Hiers-Wright Assoc. v. Manufacturers Hanover Mtg. Corp., 182 Ga. App. 732, 734 (356 SE2d 903).

Rogers’ first contention is a correct statement of the law generally, but it has a significant exception. “While fraud cannot generally be based on instances of misrepresentations as to future events, it may consist of such instances if, when the misrepresentation is made, [the promisor] knows that the future event will not take place.” Hayes v. Hallmark Apts., 232 Ga. 307, 308 (207 SE2d 197). “A promise made without a present intent to perform is a misrepresentation of a material fact and is sufficient to support a cause of action for fraud.” Middlebrooks v. Lonas, 246 Ga. 720, 721 (272 SE2d 687). Therefore, we do not find as a matter of law that Rogers’ promise to complete the work by December 5, 1986, was merely a promise as to a future event, and must consider whether there was evidence that at the time the promise was made, Rogers had no intention of completing the work.

We note that the evidence shows that deMonteguin paid the contractors he hired to complete the contract and repair the defects an amount greater than he had already paid Rogers. Further, at trial, building inspectors and subcontractors testified for deMonteguin about the poor quality of the work and that some of the defects in the construction had been concealed. Additionally, there was evidence that Rogers had made misrepresentations about securing permits, and evidence that a bank froze payments on deMonteguin’s construction loan because of deficiencies in Rogers’ work. Further, there was also testimony that Rogers made no real attempt to complete the job after October 23, and one of Rogers’ subcontractors testified that Rogers told him he had no intention of completing the job and that deMonteguin would have to sue him.

“Under the evidence, the jury was authorized to find that appellant’s misrepresentations were part of a fraudulent scheme,” Four Oaks Properties v. Carusi, 156 Ga. App. 422, 423 (274 SE2d 783), and accordingly there was sufficient evidence for the jury to conclude that Rogers had no intention to do the work promised by December 5. Under these circumstances Rogers’ promise was not merely a misrepresentation of future events, but one which supported an action for fraud. Hayes v. Hallmark Apts., supra; Middlebrooks v. Lonas, supra.

We also find that Rogers’s contention that his promise was without consideration is without merit. Forbearance is recognized in our law as sufficient consideration. OCGA § 13-3-42 (c) (2). Further, “ ‘[f]orbearance to prosecute a legal claim . . . [is] sufficient [consideration] to support a contract.’ Austell v. Rice, 5 Ga. 472 (2, 3) (1848).” Berkman v. Commercial Bank, 171 Ga. App. 890, 891 (321 SE2d 339). The evidence in this case shows that Rogers had abandoned the job with the work uncompleted. He was advised by deMonteguin’s attorney that he was considered in breach of the contract and unless arrangements were made to complete the contract deMonteguin would take legal action. Thereafter, the parties and the attorney met at the job site; and the jury was authorized to find from the evidence that an agreement was reached that deMonteguin would forbear and compromise his breach of contract suit in return for Rogers completing, no later than December 5, with provisions for rain delays, the work on a list given him by deMonteguin. Under the evidence this was sufficient consideration. Pitts Truck Air v. Mack Trucks, 173 Ga. App. 801, 803 (328 SE2d 416). Accordingly, Rogers’ contention that his actions in this case did not constitute actionable fraud are without merit.

Decided October 17, 1989

Rehearing denied November 13, 1989.

Hudson & Montgomery, James E. Hudson, for appellant.

Lyndon & Gilley, Jeffrey G. Gilley, for appellee.

2. In view of our disposition of Rogers’ first enumeration of error, his assertion that punitive damages were not authorized in this case is without merit. Punitive damages are authorized when fraud is established. Joseph v. Bray, 182 Ga. App. 131, 133 (354 SE2d 878).

3. Although Rogers’ third enumeration of error alleges that the trial court improperly directed a verdict for deMonteguin on the issue of punitive damages, in fact, this complaint concerns the trial judge’s instruction to the jury on the proper return of the verdict. Review of the record discloses that no objection was made to the trial court’s instructions which are now alleged to be erroneous, and, therefore, no question is presented for appellate review. Anthony v. Garrett, 236 Ga. 485 (224 SE2d 347). Moreover, the charge was made after the jury indicated that they had found that Rogers had committed fraud, and thus could not constitute a directed verdict. The trial court’s instructions were limited to assuring that the verdict was in the proper form and did not award double damages to deMonteguin. This enumeration of error also is without merit.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


author: McMurray, Presiding Judge.

text:
    A89A1606.
    MINNIEFIELD et al. v. SYLVESTER.
    (388 SE2d 526)
    Decided October 27, 1989.

      Gates & Associates, Fred Seward Gates, for appellants.

      William D. Temple, Sr., for appellee.
   McMurray, Presiding Judge.

On May 9, 1989, plaintiffs brought this personal injury and loss of consortium action against defendant in the State Court of Clayton County. They alleged that defendant negligently operated an automobile on or about April 8, 1985, and that they suffered injuries as a direct result of defendant’s negligence. Answering the complaint, defendant asserted, inter alia, that it should be dismissed because a prior identical suit was pending between the parties in the Superior Court of Clayton County. Subsequently, defendant moved to dismiss the complaint upon the same ground. On April 11, 1989, following a hearing, the trial court found that at the time of the filing of the complaint, an identical action was indeed pending in the Superior Court of Clayton County between the same parties; that that action was voluntarily dismissed by plaintiffs about one month after the present complaint was filed (and about two weeks after defendant’s answer was filed); and that the applicable statute of limitation expired. Based on these findings, the trial court dismissed the complaint with prejudice. Plaintiffs appeal. Held:

“ ‘Under (OCGA § 9-2-5 (Code Ann. § 3-601)), if two suits are filed at different times each for the same cause and against the same party, the pendency of the first shall be a good defense to the latter. The effect of the defense cannot be avoided even by a dismissal of the first suit. [Cits.]’ Steele v. Steele, 243 Ga. 522 (2), 523 (255 SE2d 43) (1979).” Hilliard v. Edwards, 169 Ga. App. 808, 809 (315 SE2d 39). Inasmuch as the pendency of the first action is a defense to the present action and the statute of limitation expired, the trial court did not err in dismissing the present complaint with prejudice. See OCGA § 9-3-33. Compare Hilliard v. Edwards, 169 Ga. App. 808, supra, in which the trial court in that case was directed to amend the dismissal order to specify that it was without prejudice because it was not clear whether or not the statute of limitation expired.

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A1193.
    RIOS v. THE STATE.
    (388 SE2d 527)
   Birdsong, Judge.

Herberto Jesus Rios appeals from his conviction of driving under the influence. The evidence shows that appellant was visiting his wife at her sister’s home when there was a family argument in which he struck his wife. She called the police and appellant ran from the house and hid. A deputy sheriff, who responded to the call, spoke to the wife who told him about the domestic dispute and that appellant had been drinking. The deputy made a radio report notifying other officers of the matter and then searched for appellant. Later that night, another deputy, who had been alerted to look for appellant, saw him driving his pick-up truck and pulled him over. The deputy testified that although appellant had not been driving erratically, when the deputy turned on his blue light, appellant pulled across the on-coming lane and stopped his truck on the left side of the road. This deputy and a city police officer testified that appellant was belligerent, had a very strong odor of alcohol on his breath, and admitted that he was drunk. The city police officer also testified that appellant was staggering. Both officers testified that appellant was read his implied consent rights and refused to take a test. The deputy sheriff testified that in his opinion appellant was intoxicated and that because of the intoxication, it was less safe for appellant to drive.

Appellant, his wife, and his mother-in-law all testified that appellant had not been drinking, that the wife had thrown a glass of whiskey on appellant, and that appellant was not drunk. The wife also denied telling the deputy that appellant was drunk. Appellant denied that he was drunk or that he had driven while under the influence. He also denied that he had been advised of his implied consent rights. He asserted that the deputies had set him up and that this was part of a scheme to put him in jail.

The jury convicted appellant of driving under the influence. The trial judge, after considering two prior convictions for driving under the influence, sentenced appellant to twelve months confinement, part served on probation, and a fine. From that sentence, appellant appeals. Held:

1. Appellant’s first enumeration of error asserts that the verdict was contrary to the weight of the evidence and that the evidence was insufficient to convict him. At the outset, we note that a law enforcement officer can express his opinion regarding a defendant’s sobriety. House v. State, 184 Ga. App. 724 (2) (362 SE2d 429). Further, although appellant asserts reasons why his witnesses should have been believed rather than the deputies and the police officer, it is not within our province to consider these matters. “ ‘[A]ppellate courts do not weigh the evidence or determine the credibility of the witnesses, but look only to determine if the evidence is sufficient such that a reasonable trier of fact could rationally have found proof of guilt beyond a reasonable doubt.’ Jamison v. State, 162 Ga. App. 635 (292 SE2d 515).” Banks v. State, 185 Ga. App. 851, 853 (366 SE2d 228). Additionally, on appeal we are required to view the evidence in the light most favorable to the verdict. Watts v. State, 186 Ga. App. 358 (366 SE2d 849). Considering the transcript in a light most favorable to the verdict “reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that the appellant was guilty of [the offense] charged.” Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Baggett v. State, 257 Ga. 735 (2) (363 SE2d 257); Jones v. State, 185 Ga. App. 595 (1) (365 SE2d 153). Appellant’s first enumeration of error is without merit.

2. Appellant’s second enumeration of error asserts that the trial court erred by refusing to grant his motion for a directed verdict of acquittal. “[A] motion for directed verdict in a criminal trial should only be granted where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law.” Taylor v. State, 252 Ga. 125 (1) (312 SE2d 311). In view of our analysis of the evidence in Division 1, this enumeration is also without merit.

3. The third enumeration of error asserts that the trial court erred by denying appellant’s motion for mistrial which was based upon certain comments the trial judge allegedly made about appellant prior to trial, but supposedly in the presence of potential members of the jury. The only information about the trial judge’s allegedly improper comments is the vague reference in the trial defense counsel’s motion. Appellant has the burden of showing error affirmatively in the record, Roach v. State, 221 Ga. 783 (4) (147 SE2d 299), and we will not presume error from a silent record. Rogers v. State, 155 Ga. App. 685 (1) (272 SE2d 549). Appellant has failed to meet his burden. There is no indication of what the trial judge’s comments were or whether any jury member even heard whatever the comments might have been. Accordingly, there is nothing presented for our review, and we must affirm the ruling of the trial court. Oller v. State, 187 Ga. App. 818, 821 (371 SE2d 455); Brown v. State, 146 Ga. App. 286, 287 (246 SE2d 370).

4. The fourth enumeration contends that the trial judge erred by not recusing himself upon appellant’s motion. We note that appellant’s motion did not comply with Rule 25.1 of the Uniform Rules regarding recusal of the trial judge in that it was not made in writing and was not supported by affidavit. Further, there was no showing that the motion was timely made or if not timely, that there was good cause shown for an untimely motion. Accordingly, the trial judge was not required to refer the case to another judge for a hearing on the motion. Birt v. State, 256 Ga. 483, 484 (350 SE2d 241). This enumeration suffers from the same deficiencies as the previous one. The record is devoid of evidence supporting the enumeration, and as there is nothing in the record for us to review, we must affirm the ruling of the trial court. Rogers v. State, supra; Oller v. State, supra; Brown v. State, supra.

Decided October 31, 1989

Rehearing denied November 13, 1989.

Herberto Jesus Rios, pro se.

John T. Newton, Jr., Solicitor, for appellee.

5. The last enumeration asserts that the trial court erroneously considered appellant’s previous convictions for DUI before sentencing appellant. Review of the record shows that appellant did not raise this issue in the trial court. “ ‘Enumerated errors which raise issues for the first time ... on appeal present nothing for review. [Cits.]’ ” Smith v. State, 186 Ga. App. 303, 306 (367 SE2d 573). Accordingly, this enumeration is also without merit.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


text:
    A89A1371.
    SCOTT et al. v. THOMPSON et al.
    (388 SE2d 371)
   Benham, Judge.

This is an appeal, pursuant to this court’s grant of appellants’ application for an interlocutory appeal, from an order granting a new trial to appellees, defendants in a suit filed to enforce two notes. After entering judgment on a jury verdict for appellants, the trial court granted appellees’ motion for new trial on the ground that the verdict was illegal.

Each of the two $125,000 notes which were the subject of the suit contained a provision that the indebtedness would be increased pro rata by the amount by which the sums paid thereunder would be taxed at a capital gains rate in excess of 20 percent. Appellants put on evidence that a higher rate would be applicable and that the amount of additional taxes would be $33,890.08. The jury’s verdict, which awarded appellants the principal amount of the notes plus interest and attorney fees, did not include the amount suggested by appellants’ witness, but merely stated that it awarded appellants capital gains “AS DEFINED IN CONTRACT.”

1. The grant of the motion for new trial was based on a special ground involving a question of law and is, therefore, reviewable by this court. Smith v. Telecable of Columbus, 238 Ga. 559, 560 (234 SE2d 24) (1977).

Decided October 31, 1989

Rehearing denied November 13, 1989

Ronald S. Stevens, for appellants.

Hylton B. Bupree, Jr., Mark A. Johnson, for appellees.

2. Where a verdict does not resolve the issues presented to the jury, a judgment based on that verdict cannot stand. Rucker v. Camden Tel. &c. Co., 181 Ga. App. 504, 506 (353 SE2d 50) (1987). The verdict of the jury in this case did not resolve the amount due áppellants under the capital gains provision of the note. Although there was certainly evidence from which the jury could have found a specific amount to award appellants, it did not do so. Accordingly, the trial court was correct in finding that portion of the verdict illegal and in granting a new trial as to that issue.

“ ‘The whole judgment will not be set aside because of error as to a part thereof, where it can be determined from the record how much is erroneous.’ [Cits.]” George A. Rheman Co. v. May, 71 Ga. App. 651 (2) (31 SE2d 738) (1944). It is apparent from the record and from admissions in appellants’ brief that the awards of interest and attorney fees are infected by the illegal verdict regarding capital gains. However, the trial court did not address on motion for new trial the question of appellants’ entitlement to judgment for the principal amount of the notes. Accordingly, we find that the trial court was correct in granting appellees a new trial as to interest and attorney fees, but that principles of judicial economy dictate that a new trial not be required as to the principal amount of the notes. To the extent that it grants a new trial to appellees on the issue of capital gains, interest, and attorney fees, the judgment is affirmed; to the extent it grants a new trial on the issue of the principal amount of the notes, it is reversed.

3. Appellants’ remaining enumerations of error concern issues relating to liability for the principal amount of the notes. Since those issues have been eliminated from consideration at a new trial, they need not be addressed.

Judgment affirmed in part and reversed in part.

Been, P. J., and Birdsong, J., concur.


text:
    A89A1372.
    CLEMONS v. ALLSTATE INSURANCE COMPANY.
    (388 SE2d 357)
   McMurray, Presiding Judge.

Allstate Insurance Company (“Allstate”) filed a declaratory judgment action against Phyllis Clemons and others, seeking a determination of its liability under an “Allstate Renters Policy” issued to Clemons. Clemons denied the material allegations of the complaint and counterclaimed for damages she allegedly sustained when the house she was renting was destroyed by fire. Allstate dismissed its declaratory judgment action against Clemons and a pretrial order was entered wherein Allstate admitted that its policy of insurance was effective when the house Clemons was renting was destroyed by fire, but denied liability under the policy due to alleged material misrepresentation of facts by its insured in the insurance application and during the investigation after the fire. Allstate also defended by alleging that the fire “occurred ... at the direction of, or with prior knowledge of . . . Clemons or any other insured under the policy . . . .” The case was later tried before a jury and, despite Clemons’ objection, Allstate was permitted to open by presenting evidence in support of its defensive allegations. After the close of evidence, Allstate was given the benefit of opening and closing argument. The case was then submitted to the jury and a general verdict was returned for Allstate. This appeal followed. Held:

1. In her first enumeration, Clemons contends the trial “court erred in denying . . . her right to open and close the evidence and the argument at the trial of the case.”

The party having the burden of proof is entitled to open and conclude argument before the jury. See Morgan-Hill Paving Co. v. Shanks, 45 Ga. App. 274, 275 (6) (164 SE 221). In the case sub judice, Clemons argues that the dismissal of Allstate’s declaratory judgment action placed upon her the burden of going forward with evidence in support of her counterclaim. This argument is without merit.

An examination of the trial transcript shows that the trial court instructed the jury that Allstate had the burden of proving its case by a preponderance of the evidence. Clemons made no exception to this instruction. Further, the pretrial order shows that the only factual issues for resolution relating to Clemons’ counterclaim against Allstate were the affirmative defenses raised by Allstate. (The parties stipulated to the prima facie case asserted by Clemons in her counterclaim, i.e., that she was covered under an Allstate renters policy and that the house Clemons was renting was destroyed by fire.) “ ‘The burden of proof generally lies upon the party asserting or affirming a fact and to the existence of whose case or defense the proof of such fact is essential.’ [Cits.]” Parsons v. Harrison, 133 Ga. App. 280, 283 (3) (211 SE2d 128). Consequently, under the particular facts and circumstances of the case sub judice, the burden of going forward with evidence rested with Allstate. See OCGA § 24-4-1; Metropolitan Publishers Reps. v. Arnsdorff, 153 Ga. App. 877, 878 (1) (267 SE2d 260). See also Simmons v. Brannen, 155 Ga. 494, 495 (1), 496 (117 SE 318). Compare Carver v. Jones, 166 Ga. App. 197 (1) (303 SE2d 529). It therefore follows that the trial court did not err in refusing Clemons’ request to go forward with evidence and in allowing Allstate to open and close argument to the jury. See United States v. Tract &c. of Land in Chatham County, 47 FSupp. 30, 34 (SD Ga. 1942).

2. Clemons contends in her final two enumerations that the trial court erred in denying her motion for directed verdict, arguing that there was insufficient evidence to support Allstate’s defenses “of application misrepresentation” and “of concealment and misrepresentation in the submission of the insurance claim.” These enumerations present no issue which requires reversal.

“ ‘On appeal this court is bound to construe the evidence with every inference and presumption being in favor of upholding the jury’s verdict. (Cit.)’ Felton v. Mercer, 149 Ga. App. 358, 360 (1) (254 SE2d 398) (1979). ‘The standard of appellate review of the trial court’s denial of a motion for a directed verdict is the “any evidence” standard. (Cit.)’ [Cit.]” American Game &c. Svc. v. Knighton, 178 Ga. App. 745 (1) (344 SE2d 717). In the case sub judice, Allstate not only defended on the basis of Clemons’ alleged misrepresentations, it alleged that Clemons or another insured intentionally caused the fire which destroyed the rental house. In this vein, Allstate presented evidence showing that no accidental cause was found for the fire; that Clemons had been experiencing severe financial difficulties at the time she applied for the renters insurance; that Clemons requested and obtained the maximum coverage possible for renters insurance; that the house Clemons was renting was destroyed by fire less than 10 days after she applied for the insurance; that Clemons’ property loss claim was exaggerated; that Clemons and her husband had been involved in other fire loss incidents; that Clemons was vague regarding her involvement in these cases and that Clemons had been deceptive and contradictory regarding events leading to and surrounding the loss of the house she was renting. This evidence was sufficient to authorize the jury’s verdict on Allstate’s arson defense. Consequently, the trial court did not err in denying Clemons’ motion for directed verdict.

Judgment affirmed.

Carléy, C. J., and Beasley, J., concur in Division 2 and in the judgment.

Decided October 20, 1989

Rehearing denied November 13, 1989.

McDaniel, Bodker, Ramsey & Andrews, John R. Gaughen, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Dennis J. Webb, William E. Zschunke, for appellee.


author: Beasley, Judge.

text:
    A89A1305.
    JACKSON v. WILEY.
    (388 SE2d 395)
   Beasley, Judge.

Jackson, injured in an automobile collision, appeals the grant of summary judgment to defendant Wiley.

The incident occurred July 18, 1987, as Jackson was waiting behind Wiley to exit a shopping center parking lot when Wiley suddenly began backing his car and hit her car. He said he did not see her in his rear view mirror.

The following facts are not disputed. Wiley was insured by State Farm, with whom Jackson filed a claim on July 20. On the form, she claimed only property damage, answering “no” to the question “Was anyone injured?” She met with Sallas, the adjuster, and he arranged for her car to be repaired. On August 13, Jackson was notified that her car was ready, went by State Farm to pick up a check, and signed it over to the auto repair company. Jackson had not seen anyone concerning treatment of her back at this time, although she contends the discomfort in her back began the week after the accident.

Above her endorsement on the back of the check appeared the following: “The undersigned payee accepts the amount of this payment in full settlement of all claims for damages to property and for bodily injury whether known or unknown, which payee claims against any insured under the policy shown on the face hereto, or their respective successors in interest, arising out of an accident which occurred on or about the date shown. . . .” Jackson did not read the release before signing the check.

After receiving treatment for her back, Jackson retained counsel who first contacted State Farm on November 11 about her bodily injury claim and on December 1 forwarded to State Farm his firm check for the amount of the State Farm check. State Farm returned the check by letter of March 23. It had advised Jackson’s attorney, as reflected in his letters to it, that it was relying on the release. No other response was made to the tender.

Jackson contends that she understood the check was only for property damage, although she has no recollection of her discussions with Sallas, who unequivocally stated that the check was in settlement of all her claims.

All of the enumerations deal with Jackson’s contentions that she rescinded the release by returning the money, that State Farm is now estopped from pleading release because of its long retention of the check, and that the check effected a “reverse accord and satisfaction.” They will be dealt with together.

To the degree that Jackson’s argument is premised on an alleged misrepresentation by Sallas concerning the purpose of the draft, she put forth no evidence to support it, stating only that she did not understand, not that any affirmative statement by Sallas was a misrepresentation. “[T]here is no suggestion that the mistake, if there was one, was anything other than a unilateral mistake on the part of the appellant. Thus, it affords no ground for reversal. [Cit.]” Thomaston v. Ft. Wayne Pools, 181 Ga. App. 541, 542 (3) (352 SE2d 794) (1987); Fulghum v. Kelly, 255 Ga. 652, 654 (340 SE2d 589) (1986); Chitwood v. Southern Gen. Ins. Co., 189 Ga. App. 697, 700 (377 SE2d 210) (1988).

Jackson relies on OCGA § 13-4-60 and Studstill v. American Oil Co., 126 Ga. App. 722 (191 SE2d 538) (1972) aff'd 230 Ga. 305 (196 SE2d 847) (1973) for her “reverse accord and satisfaction” argument. The Code, however, requires fraud for rescission, which has not been shown.

Studstill, supra, deals with a situation where there was no release executed by the creditor after receipt of the check tendered by the insurance company and the claimant promptly attempted to clarify whether the check was in full payment of his claim. Jackson’s counsel’s letter tendering the check to State Farm is itself equivocal, stating that if they could settle the injury claim shortly, “a return of the tender would be acceptable to resolve the property damage claim.”

Jackson apparently contends that, despite her knowledge that State Farm and its insured were relying on the release as a defense to her claim, State Farm’s failure to otherwise respond to the tender and return the check estop it from relying on the release. State Farm having so indicated its reliance, nothing further was legally required of it in regard to the tender. American Oil v. Studstill, 230 Ga. 305, supra.

Jackson is urging total cancellation of a release for which she accepted consideration based on her mere failure to read the release, her later decision that her discomfort was due to the accident, and her sending of a check in the same amount as the one which she received from State Farm. There is no legal basis on the facts for such relief. Chitwood, supra at 701; Roberson v. Henderson Chem. Co., 171 Ga. App. 722, 723 (3) (320 SE2d 835) (1984); see M. Walter & Co. v. North Highland Assembly of God, 188 Ga. App. 852, 853 (374 SE2d 792) (1988).

Decided November 13, 1989.

Bates, Kelehear & Starr, J. Raymond Bates, Jr., for appellant.

F. Gregory Melton, M. Claire Chason, for appellee.

Judgment affirmed.

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


text:
    A89A1377.
    WATTERS v. CLASSON.
    (388 SE2d 397)
   Beasley, Judge.

In this personal injury suit alleging negligence resulting in an automobile collision, plaintiff Watters appeals the grant of defendant Classon’s motion to dismiss for insufficiency of service of process. Service of the renewed complaint was perfected 105 days after its filing and beyond the limit set by statute.

Dismissal was granted upon the trial court’s determination that the unsuccessful efforts to perfect service on defendant, who had moved, were not sufficient because plaintiff had considerable information about defendant which could have easily led to timely service but was not availed of, resulting in an unreasonable delay in service. Appellant challenges the evidentiary support for the court’s adverse decision and the court’s compelling her deposition, after the six-month period provided by USCR 5, for the limited purpose of ascertaining the attempts at service of process.

The relevant circumstances of service and accomplishing the deposition are undisputed. The collision occurred on October 30, 1983, while Watters was a passenger in a vehicle driven by Classon. Watters filed suit in DeKalb County on October 25, 1985, five days before the running of the statute of limitation. Classon was served on November 8, nine days after the statutory time. An answer was filed and defendant sought discovery, but Watters dismissed her complaint without prejudice on August 27, 1986.

She renewed the suit on January 26, 1987. After initial attempts to serve defendant were unsuccessful, plaintiff’s attorney had a special agent for service of process appointed. The special agent did not serve process on defendant until May 11, 1987. Defendant answered the suit on June 10, asserting, inter alia, improper venue, lack of personal jurisdiction, and plaintiff’s failure to exercise due diligence in securing service. Defendant also moved to transfer the case to Forsyth County where she then resided. The case was transferred July 8.

Following correspondence with Watters’ counsel, defendant served Watters on February 11,1988, with a notice to take deposition and to produce, for the limited purpose of uncovering the attempts at service of the renewed complaint. Watters refused to appear at the deposition on the ground that the six-month discovery period prescribed by USCR 5 had expired.

Defendant moved to compel Watters to submit to a deposition or, in the alternative, to dismiss Watters’ claim. Following a hearing, the motion for a limited deposition was granted, the court exercising the authority given by the rule to extend the rule’s time period. The court reserved ruling on defendant’s motion to dismiss for insufficiency of service pending completion of the deposition and its review.

Thereafter the court granted the motion to dismiss, finding that the deposition revealed the following: Plaintiff and defendant were roommates when the auto collision occurred. The parties were good friends, with defendant participating in plaintiffs wedding on September 15, 1984. The parties remained in contact after the wedding. Plaintiff attended a Halloween party at defendant’s house and knew defendant’s family both in Georgia and in Michigan. Plaintiff knew that defendant worked at Roswell Sign Company and visited defendant’s workplace on at least one occasion. At no time during the period in which service on defendant was attempted did plaintiff provide or volunteer information to her attorney about defendant’s whereabouts, even though plaintiff knew her attorney was having difficulty locating defendant.

1. If a plaintiff has taken some action to perfect service in a situation where suit is timely filed but service is perfected outside the limitation period, see OCGA §§ 9-11-3; 9-11-4 (c), the trial court must determine, exercising its legal discretion, whether the plaintiff was diligent. See Webb v. Murphy, 142 Ga. App. 649, 650 (236 SE2d 840) (1977); see also Gulf Oil Corp. v. Sims, 112 Ga. App. 68, 69 (143 SE2d 776) (1965). If reasonable and diligent efforts are not made to insure proper service as quickly as possible, plaintiff is guilty of laches. See Bowman v. U. S. Life Ins. Co., 167 Ga. App. 673, 676 (3) (307 SE2d 134) (1983). See also Brumbalow v. Fritz, 183 Ga. App. 231, 232 (2) (358 SE2d 872) (1987). The same applies to a renewed action. Plaintiff has the burden of showing lack of fault. Bible v. Hughes, 146 Ga. App. 769, 771 (3) (247 SE2d 584) (1978). See also Miller v. Hands, 188 Ga. App. 256 (372 SE2d 657) (1988). The appellate court must affirm the trial court’s exercise of its discretion in determining whether or not plaintiff had met the burden unless a gross abuse of discretion is shown. See Childs v. Catlin, 134 Ga. App. 778, 782 (216 SE2d 360) (1975).

While appellant makes much of certain of the trial court’s phrasing in its findings and certain inferences made by the court, the evidence adduced at the deposition supports the court’s ultimate determination. In addition, an affidavit by Classon’s counsel stated that at all times during his representation of Classon, the attorney knew of her current address and place of employment but that no one representing Watters contacted him regarding Classon’s whereabouts. Plaintiff had the burden to investigate and learn where the defendant might be located. Jones v. Brown, 174 Ga. App. 632, 634 (331 SE2d 24) (1985).

Decided November 13, 1989.

Daniel T. Donohue, for appellapt.

Webb, Carlock, Copeland, Semler & Stair, Robert C. Semler, D. Gary Lovell, Jr., William T. Clark, for appellee.

There was no abuse of the trial court’s discretion as a matter of law. See Smith v. Griggs, 164 Ga. App. 15, 18 (2) (296 SE2d 87) (1982).

2. The trial court did not err on the basis urged by ordering plaintiff’s compliance with defendant’s notice of deposition. The deposition was not part of the discovery procedure to uncover information regarding the incident giving rise to the litigation on the merits of the claim but was merely for the purpose of determining the sufficiency of plaintiff’s efforts in achieving service. The effect was the same as holding a hearing on the matter. Plaintiff and/or her witnesses would have had to relate the steps taken to perfect service or suffer dismissal, the consequence of failing to show diligence. The deposition route gave plaintiff the same opportunity to meet her burden.

Even if the court had not had authority to order compliance with the deposition request and improperly considered the deposition as evidence, dismissal of the suit would still be warranted because the record is devoid of any showing by plaintiff that she exercised due diligence and reasonableness in attempting to serve process on defendant.

Judgment affirmed.

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


text:
    A89A1443.
    BROWN v. KING.
    (388 SE2d 400)
   Beasley, Judge.

This appeal is from a decision by the probate court in a dispute regarding the guardianship of a minor child. Brown is the natural mother of an illegitimate three-and-a-half year old son. At the time of the birth in January 1986, Brown was fifteen. The child suffered from illnesses which required medical care and Brown had difficulty in caring for him. The child was placed in a foster home until King, the mother of a man who claimed to be the child’s natural father, permitted Brown and the child to reside in her home. King’s son was not named on the child’s birth certificate and he had not legitimated the child. After a couple of weeks, Brown moved from King’s home, but the child stayed for approximately three or four months.

In April 1988, Brown took the child to King’s place of employment, told King that in her present circumstances Brown could not care for the child anymore, and asked King if she would resume care and physical custody of the child. King agreed on the condition that Brown obtain legal custody for King.

Brown went to the probate court and had prepared a petition for letters of guardianship for the child’s person in favor of King. Although Brown was only seventeen, no guardian ad litem was involved and Brown signed a consent to the guardianship. The letters of guardianship for the boy in favor of King issued in April.

Problems developed between Brown and King regarding the child and in February 1989, Brown filed a “Motion to Dissolve Temporary Guardianship,” alleging, inter alia, that she had executed the consent to the guardianship under duress and without the advice of counsel or knowledge of her parents, and that the information sworn to in the petition for guardianship was false and incorrect, namely that King’s son was not the father of the child. At the hearing on the motion before the probate court, King took the position that the matter was before the court as a petition to change custody and thus the probate court had jurisdiction to “make the ultimate determination as to what is in the best interest of the child.” Over Brown’s objection that the hearing should be limited to the issue of her right to dissolve what she contended was the temporary guardianship of her child, King was permitted to present evidence about Brown’s history and inability to care for the child.

The probate court denied Brown’s motion to dissolve the guardianship, finding that Brown had intelligently made the decision to consent to it, assisted and promoted it from its inception, and that it was then in the child’s best interest that the guardianship be continued.

Brown appeals contending that the probate court erred in not dissolving the guardianship under OCGA § 29-4-4.1, in exceeding its jurisdiction under OCGA § 15-9-30 (a) (6), in applying the “best interest of the child test” in a custody contest between a natural parent and a third party, and in awarding custody to a third party absent clear and convincing evidence of her present unfitness.

Probate courts have limited subject matter jurisdiction even in the area of guardianship. In a controversy as to the right of guardianship, the probate court is not an appropriate court to take action under OCGA § 19-7-4, which provides for the loss of parental custody. OCGA § 15-9-30 (a) (6). The probate court was without legal authority to make any determination under OCGA § 19-7-4 regarding Brown’s loss of legal custody of her child in favor of a third party. Consequently, whether the court employed the legal standards in reaching its judgment is irrelevant.

Decided November 13, 1989.

Willie Lockette, for appellant.

The mother of an illegitimate child is its natural guardian with the prima facie right to custody. OCGA § 29-4-2; Whitlock v. Barrett, 158 Ga. App. 100, 101 (4) (279 SE2d 244) (1981). “ ‘The probate court has no authority to appoint another as guardian of the person of a child with a living natural guardian unless the loss of that status has been ascertained and declared in some regular proceeding authorized by law, after due notice is given.’ [Cits.]” Hill v. Loren, 187 Ga. App. 71, 72 (1) (369 SE2d 260) (1988).

There had been no legal proceeding or determination to divest Brown of the natural guardianship of her son prior to the issuance of the letters of guardianship in favor of King. King asserts that the probate court had authority to appoint her as the child’s permanent guardian because Brown voluntarily relinquished or forfeited her parental rights. Assuming without deciding the voluntariness of the petition for the guardianship despite Brown’s minority and lack of representation, and accepting King’s version of the exchanges and understanding with Brown regarding the child, Brown at most agreed to King’s indefinite custody of the boy. “Parental rights are not relinquished by an agreement granting mere custody. [Cit.]” Id. at 73 (1).

Accepting the validity of the initial petition for guardianship, the probate court only had authority to appoint King as a temporary guardian for Brown’s child. OCGA § 29-4-4.1 (a) (1). Therefore, the guardianship as a permanent one was void. Hill, supra at 73 (1). As to the temporary guardianship, Brown as natural guardian had the right to apply to the probate court for its dissolution, and the probate court was bound to oblige and to remove King as the temporary guardian of Brown’s child. OCGA § 29-4-4.1 (c).

The probate court erred in refusing to dissolve the guardianship upon request of the natural guardian. Accordingly, the order continuing the third-party guardianship is reversed. See Whitlock, supra at 104 (4).

Judgment reversed.

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

C. B. King & Associates, Chevene B. King, Jr., for appellee.


text:
    A89A1485.
    BAKER v. THE STATE.
    (388 SE2d 402)
   Beasley, Judge.

Defendant appeals his conviction for aiding and abetting in the sale of marijuana to an undercover agent. OCGA § 16-2-20 (b) (1) and § 16-13-30.1.

1. The first enumeration of error complains that at the beginning of trial defendant sought to utilize the table next to the jury but was told that it was customarily used by the State. Defendant objected but the trial court ruled that the State could use the table and defendant was relegated to the other table.

The discretion of the trial court in regulating the conduct of counsel and the witnesses and in prescribing the manner in which business of the court shall be conducted is very broad and will be reversed only upon a showing of abuse. Butler v. State, 172 Ga. App. 405, 406 (1) (323 SE2d 628) (1984). The exercise of the inherent power of the court in this instance did not constitute an abuse of discretion. Jackson v. State, 154 Ga. App. 367, 368 (2) (268 SE2d 418) (1980); Jackson v. State, 149 Ga. App. 496, 498 (1) (254 SE2d 739) (1979).

2. The second enumeration of error urges that the trial court erred by denying defendant’s motion for a mistrial advanced in response to testimony elicited by the State “which referred to another, wholly unrelated, alleged crime.” Specifically, defendant maintains the trial court failed to comply with OCGA § 17-7-210 and USCR 31.3.

The testimony relates to encounters involving defendant and a GBI undercover agent between August 23, 1987, the date of the crime of which defendant was convicted, and the end of November, the time the agent left the Albany area. The timing of the events is indeterminate because of inconsistency in the testimony of the agent at the committal hearing and his testimony at trial. The four events, regardless of sequence, were: (1) defendant went to the agent’s apartment to get money the agent owed to Israel, a jailed friend of defendant, for a sale of drugs Israel had made to the agent; (2) defendant went to the agent’s apartment to buy marijuana from the agent; (3) defendant went to the agent’s apartment to sell marijuana; (4) at a chance meeting outside a restaurant, defendant asked if the agent wanted any “yellows” (street slang for five-milligram Valium). No sales were ever made, nor was there testimony indicating whether defendant was ever in possession of controlled substances.

(a) OCGA § 17-7-210 (a) states that “[t]he defendant shall be entitled to have a copy of any statement given by him while in police custody.” In compliance with the Code, defendant’s counsel made a request for such statements. The record does not reflect the State’s responding to this or any other of defendant’s discovery requests. Defendant urges “[t]he threshold question for this tribunal is whether a statement made to an undercover agent requires disclosure pursuant to OCGA § 17-7-210.”

The question is essentially rhetorical in that appellant cites Yeargin v. State, 164 Ga. App. 835 (298 SE2d 606), which emphasized this code section “applies only to statements given by the defendant ‘while in police custody.’ ” All of the encounters to which the agent testified occurred prior to the end of November 1987. The arrest warrant was issued for defendant on December 14, and he was taken into custody when he voluntarily went to the police station when learning of the warrant during a call home.

Because defendant was not in police custody at the time the statements were made, the State’s failure to produce them did not make the testimony inadmissible. Banther v. State, 182 Ga. App. 333 (2) (355 SE2d 709) (1987).

(b) Application of USCR 31.3 presents questions of procedure, evidence, and word meaning, and deals with the content aspect of defendant’s argument not addressed under OCGA § 17-7-210: 1) whether the statements elicited from the State’s witness constitute testimony about similar transactions or occurrences; 2) whether the State followed the rule which requires giving notice to defense counsel of intent to introduce evidence of similar transactions or occurrences; 3) whether, even if the State’s conduct was procedurally defective and the testimony is considered to constitute similar transactions or occurrences, the errors were harmless.

“Notices of the state’s intention to present evidence of similar transactions or occurrences . . . shall be given and filed at least ten days before trial unless the time is shortened or lengthened by the judge.” USCR 31.1. “The state may present during the trial evidence of only those similar transactions or occurrences specifically approved by the judge.” USCR 31.3 (B). “Evidence of similar transactions or occurrences not approved shall be inadmissible.” USCR 31.3 (C). Notice of intent to offer such evidence is not optional. “Under Uniform Superior Court Rule 31.3 the [plaintiff] must give a defendant notice of its intent to present evidence of similar transactions or occurrences and seek the prior approval of the trial judge before presenting such evidence.” Minter v. State, 258 Ga. 629, 630 (2) (373 SE2d 359) (1988). (Emphasis supplied.)

(1) An “occurrence” is defined as a “coming or happening; any incident or event, especially one that happens without being designed or expected.” Black’s Law Dictionary, 4th ed., p. 1231. None of the events to which the agent testified was designed or expected, including the event which resulted in defendant’s conviction. The agent testified he was introduced to the defendant when the agent went to Israel’s apartment to buy LSD. Certainly, the content of the testimony related by the agent involves occurrences. Considering that all the occurrences were related to the purchase or sale of drugs, the “similarity” requirement is satisfied.

We need not discuss the definition of a transaction, other than to state it is a narrower term than occurrence. A transaction would include a sale, or some interaction between two or more parties, and' statutorily, would include possession. See Controlled Substances Act, OCGA § 16-13-1 et seq.

(2) The State does not deny it never tendered notice to defendant’s counsel, but contends that the testimony was offered only for the purpose of identifying the defendant and showing his bent of mind. The purpose is irrelevant, for the State must give notice regardless of its purpose in introducing the evidence. USCR 31.3 covers the evidence, at least if it is offered in the case in chief, as here. The question of purpose enters in only when objection is interposed regarding admissibility under OCGA § 24-9-20. See Smith v. State, 182 Ga. App. 740, 741 (1) (356 SE2d 723) (1987). Since no notice was ever given, violation of the Rule rendered the evidence inadmissible.

(3) The purpose of the rule is to “provide a criminal defendant adequate notice of the State’s intent to use similar transactions to enable the defendant to resolve questions regarding admissibility of such evidence before trial.” Todd v. State, 189 Ga. App. 538, 539 (1) (376 SE2d 917) (1988). Although a violation must result in prejudice to the defendant in order to be reversible, “[t]he rule clearly presupposes that the state’s failure to comply with the rule will result in harm to the defendant.” Id. “The rule by its nature implies a presumption of harm from lack of notice.” Id. at 541. There is no question that without the evidence of other occurrences the State’s case would have been weaker. Under the present circumstances, we cannot say it was highly probable the error did not contribute to the judgment. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976), and the judgment must be reversed.

3. Defendant asserts the trial court erred in prohibiting defense attorney from inquiring, on cross-examination, about criminal charges brought against Israel arising from an arrest on the same evening as the alleged sale of marijuana by defendant.

A witness may be discredited by evidence of bad character and convictions of crimes involving moral turpitude. OCGA § 24-9-84; Beasley v. State, 168 Ga. App. 255, 256 (1) (308 SE2d 560) (1983). The evidence sought to be elicited was improper for impeachment and did not involve the acts of the witness. Defendant’s contention that such evidence would have been in irreconcilable conflict with the undercover agent’s testimony is not sustainable. The scope of cross-examination is within the discretion of the trial court and will not be reversed unless that discretion is abused. Birge v. State, 143 Ga. App. 632, 634 (4) (239 SE2d 395) (1977). There was no abuse of discretion in limiting the cross-examination to relevant and material evidence. Jones v. State, 135 Ga. App. 893, 898 (5) (219 SE2d 585) (1975).

Moreover, it is obvious that the jury did determine that Israel was the major participant in the sale because defendant was only found guilty of aiding and abetting. Even if the evidence sought to be elicited was relevant and its exclusion error, the failure to permit cross-examination in this area was not harmful. Error without harm is not reversible. Waller v. State, 134 Ga. App. 886, 888 (4) (216 SE2d 637) (1975).

4. Error is assigned to the trial court’s sustaining an objection to a defense question of the agent: “Did you ascertain whether or not Mr. Israel had a record for the sale of drugs of any type?” It is argued that the answer to this question would have impugned the agent’s credibility and highlighted the inaccuracy of his testimony. No basis is set forth as to why this would be true. Israel’s proclivity for drug offenses certainly would not have demonstrated this fact. This enumeration of error suffers from the same defects as that in Division 3.

5. After defendant testified that he had completed a drug rehabilitation program in January 1988, the prosecutor asked him on cross-examination: “Is that the first time you’ve ever been in drug rehab?” The defendant moved for a mistrial, which was denied. There was no response. Defendant contends that the question interjected his character into evidence.

Jones v. State, 257 Ga. 753, 759 (1) (b) (363 SE2d 529) (1988), notes that where a testifying defendant admits prior criminal activity he has not placed his character “in issue,” but “he has raised an issue which may be fully explored by the State on cross-examination.” Furthermore, if defendant admits a crime implying that is his only criminal offense, his testimony is subject to rebuttal by proof of other committed crimes.

The State was attempting to undermine defendant’s assertion of reformation from the fact that he had undertaken treatment for drug abuse. Moreover, defendant did not respond to the question and it was withdrawn. It was not error to deny the motion for mistrial, as an unanswered question does not furnish grounds for such motion. Middlebrooks v. State, 169 Ga. App. 507, 509 (2) (313 SE2d 764) (1984); Burns v. State, 166 Ga. App. 766, 769 (5) (305 SE2d 398) (1983).

6. Defendant complains of the failure to give his request to charge, but the request is not a part of the record below and the enumeration of error raising this ground will not be considered. Zachary v. State, 245 Ga. 2, 4 (262 SE2d 779) (1980); Williams v. State, 165 Ga. App. 553 (1) (301 SE2d 908) (1983).

Decided November 13, 1989.

John M. Beauchamp & Associates, Kermit S. Dorough, Jr., for appellant.

Britt R. Priddy, District Attorney, John L. Tracy, Assistant District Attorney, for appellee.

7. The remaining enumerations of error are without merit.

The judgment must be reversed because of the error found in Division 2.

Judgment reversed.

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