text:
    A90A0162.
    LITTLE v. THE STATE.
    (390 SE2d 445)
   Sognier, Judge.

Sidney Little was indicted for murder and was convicted of involuntary manslaughter in the commission of an unlawful act and sentenced to ten years in prison. He appeals.

1. Appellant first raises the insufficiency of the evidence to support his conviction. The evidence adduced at trial showed that on the evening of April 8,1989, appellant, the victim, Robert Swain, and several others were drinking at a club in Eatonton. Several witnesses testified that appellant and Swain argued, then physically struggled, and that during the struggle appellant pulled a gun from under his shirt and hit Swain on the side of the head. Witnesses testified that they saw appellant point the gun in Swain’s face and “snap” it. When Swain then pushed appellant backward into some trash barrels appellant shot Swain, who died immediately. Appellant admitted that he was carrying the gun and that Swain was unarmed, but testified that Swain was the aggressor; that he hit Swain with the gun in the hope that would stop him; and that the gun went off accidentally.

Decided January 30, 1990.

Fierman & Nolan, Martin L. Fierman, James A. Nolan, for appellant.

Joseph H. Briley, District Attorney, James L. Cline, Assistant District Attorney, for appellee.

“ ‘On appeal of a conviction based on a jury verdict’ the appellate court examines ‘the evidence in a light most favorable to support that verdict’ and resolves ‘all conflicts in favor of the verdict.’ [Cit.]” Hosch v. State, 185 Ga. App. 71 (1) (363 SE2d 258) (1987). Viewing this evidence in the light most favorable to the jury’s verdict, we find the evidence sufficient to enable a rational trier of fact to convict appellant of involuntary manslaughter in the commission of an unlawful act. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant contends the trial court erred by allowing the prosecutor to ask him on cross-examination, over objection, whether the witnesses who testified that appellant had pointed the gun at Swain and snapped it were lying. Although, as pointed out by appellant, the truthfulness or veracity of a witness is solely within the province of the jury, Brundidge v. State, 184 Ga. App. 860 (1) (363 SE2d 66) (1987), and we have held that “[i]n no circumstance may a witness’ credibility be bolstered by the opinion of another, even an expert, as to whether the witness is telling the truth,” State v. Oliver, 188 Ga. App. 47, 50 (2) (372 SE2d 256) (1988), we fail to see how the prosecutor’s question violated these principles. Appellant’s response to the question in no way “bolstered the veracity” of any witness, but merely emphasized the conflict in the evidence, which it was the jury’s duty to resolve, and the trial court properly charged the jurors that they were “made by law the sole and exclusive judges of the credibility or believability of witnesses.” We find no error here.

3. Appellant presents no argument or citation of authority regarding his third enumeration of error, and it is therefore deemed abandoned pursuant to this Court’s Rule 15 (c) (2).

Judgment affirmed.

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


source: Caselaw Access Project

author: McMurray, Presiding Judge. Beasley, Judge,

license: Public Domain

text:
    A89A1142.
    WHITLEY v. HULON.
    (390 SE2d 598)
   McMurray, Presiding Judge.

Plaintiff Barbara Joan Whitley brought this slip and fall case against defendant Michael Hulon, d/b/a Western Sizzlin of Fitzgerald. She alleged that she entered defendant’s restaurant on October 24, 1985, to eat lunch and that as she left the restaurant she fell and sustained severe and disabling injuries. Defendant was alleged to be negligent in failing to remedy what he knew was a dangerous condition upon his premises. Defendant answered the complaint and denied any liability whatsoever. Following discovery, defendant moved for summary judgment. The motion was granted and plaintiff appealed.

Viewing the evidence in a light favorable to plaintiff, the party opposing the motion for summary judgment, we find the following: Prior to October 24, 1985, plaintiff visited defendant’s restaurant at least one time. On the day in question, plaintiff entered the restaurant by walking up a wheelchair ramp which led to a door. After eating lunch, plaintiff exited the restaurant via the same door. As she walked out the door, however, plaintiff turned to her left (cutting across the wheelchair ramp) to take a shortcut to the parking lot. In so doing, plaintiff placed her foot on a slope which extended from the edge of the wheelchair ramp to the parking lot. Plaintiff slipped on the slope and fell to the ground.

Plaintiff averred that she was aware of the slope but she did not realize that it was unsafe. In this regard, she averred that the slope was black, the same color as the parking lot and that, therefore, she could not ascertain the degree of the slope. (She may have noticed the danger, plaintiff insisted, if the slope had been painted a color different from that of the parking lot.) Moreover, plaintiff averred that, unbeknownst to her, the slope was very slick.

Defendant himself characterized the slope as being “very abrupt” and the evidence demonstrated that prior to plaintiff’s fall, another customer of defendant fell on the slope. Nonetheless, defendant took no steps to warn customers of the condition of the slope, or to prevent customers from stepping upon the slope, prior to plaintiff’s fall.

In Pinkney v. VMS Realty, 189 Ga. App. 177, 178 (375 SE2d 90), plaintiff stepped off of a ramp in a parking garage and fell. She conceded that she was aware of the existence of the ramp and that if she had “ ‘looked for it very closely’ ” she could have seen the drop-off. She added, however, that the drop-off was not “readily observable because the two levels appeared to blend together due to the poor lighting and the absence of any railings or warning markers.” The trial court granted summary judgment to defendants and we reversed, holding: “Although [plaintiff] conceded her obvious knowledge that she was parked on a ramp and further conceded that she would have been able to see the ledge had she been looking down at it ‘very closely,’ she explained that her attention was focused on the security guard and that, due to the poor lighting and the lack of any guard rails or warning markers, the two levels appeared to blend together. Whether her failure to see the ledge constituted a lack of due care for her own safety under these circumstances and whether, if so, her negligence outweighed any possible negligence on the part of the [defendants] in failing to provide a guard rail, warning markers, and/or better lighting are issues of fact to be resolved by a jury. [Cits.]”

In the case sub judice, as in Pinkney, plaintiff was aware of the existence of the slope but she was unable to appreciate the danger posed by the slope. Why? Because the slope blended together with the parking lot and plaintiff was unable to discern the degree of the slope. Given these circumstances, we conclude that the trial court erred in granting defendant’s motion for summary judgment. Whether plaintiff exercised a reasonable lookout and whether defendant should have painted the slope, erected a guardrail or posted warning signs are questions of fact which should be resolved by a jury. Pinkney v. VMS Realty, 189 Ga. App. 177, supra.

Judgment reversed.

Carley, C. J., Banke, P. J., Pope and Ben-ham, JJ., concur. Deen, P. J., Birdsong, Sognier and Beasley, JJ., dissent.

Beasley, Judge,

dissenting.

The record shows, and the briefs adequately develop, that summary judgment for defendant was required by law.

The incident occurred on plaintiff’s way out, after she had entered the same way and had seen the black asphalt slope on the side of the concrete ramp. Nothing obstructed her view of it. She realized it was sloped. What is more, she had been there several times, when the condition was the same.

Additionally, her contradictory statements that there was something slick and rough are not explained. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680) (1986).

She said she did not know what caused her to fall. “I slipped, I suppose. My foot slipped as I stepped down,” she said. She could see the paving she fell on, which was where the slope started to level out at the bottom, and she agreed there was no foreign substance. Her opinion that it was unsafe was a conclusion she drew based solely on her unsubstantiated belief that many people fell on it.

There is no evidence of a latent danger or concealed hazard, as distinguished from the cases cited by plaintiff. Instead, it more closely approximates Thacker v. Matthews Tuxedo, 183 Ga. App. 474 (359 SE2d 231) (1987).

Decided December 20, 1989

Rehearing denied February 2, 1990

Robert B. Sumner, Mills & Chasteen, Ben B. Mills, Jr., for appellant.

Gibson & Jackson, Douglas L. Gibson, for appellee.

I am authorized to state that Presiding Judge Deen and Judge Sognier join in this dissent.


author: Birdsong, Judge.

text:
    A89A1726.
    BROOKS v. CARSON.
    (390 SE2d 859)
   Birdsong, Judge.

This is an interlocutory appeal in a child custody action filed in January 1989 by the child’s natural father against the natural mother. A third party, apparently not a relative of either parent, filed a motion to be allowed to intervene as a party defendant for the asserted express purpose of terminating the father’s paternal rights and obtaining custody, by challenging his fitness and promoting the best interests of the child.

The intervenor, Mary Carson, contended the natural mother had given her custody of the child by a “transfer of custody agreement” dated August 28, 1986, and that she had had physical custody of the child for three years and had supplied the child with a warm home place; that the child “does not know the [natural father] and is very fearful of living with him,” and, as presently situated with Mary Carson, is an excellent student and has a very happy disposition.

Carson averred further that the plaintiff natural father (Michael Brooks) was unfit to raise the child; that he “is presently the stepfather of four children and doesn’t even have a telephone and therefore is financially unable to care for the needs of said minor child.”

Carson contemporaneously filed a “proposed intervenor answer and counterclaim” to the father’s suit against the mother, asserting that the father had wilfully abandoned the child for over one year preceding the filing of his complaint, and further that she (Carson) “is informed and believes that the [p]laintiff is a substance abuser and has in fact sniffed transmission additives in the past in order to satisfy his need for a ‘high.’ ” Her proposed prayer sought, inter alia, termination of the father’s parental rights, dismissal of the father’s custody suit, and the award of physical and legal custody to herself.

Carson also tendered interrogatories to the father, questioning his previous contacts with the child, the names and ages of his stepchildren and wife, the identity and addresses of all his local relatives, and inquiring into his driving record and as to whether he had ever been charged with or convicted of a crime.

Carson proposed three requests for admission, to-wit: “1. Do you admit or deny that you have not visited with [the child] since August 28, 1986 [the date the mother transferred custody to Carson]? (2) Do you admit or deny that you have not communicated or visited with [the child] for one year preceding the filing of your complaint. (3) Do you admit or deny that you have sniffed ‘transmission-go’ in the past.”

The trial court granted third-party Carson’s motion to intervene as 'defendant, and subsequently, “[b]ased upon the fact that the [father] has not provided support for the minor child ... for three (3) years or more,” denied the father’s motion for reconsideration. Held:

1. The question arises whether this appeal is timely, because appellant-father did not seek a certificate of immediate review after the trial court’s order of intervention executed February 16 and filed February 20, 1989, but did so only after the denial of his March 16 “Motion for Reconsideration of Judgment” (which motion would not ordinarily toll the time for appeal).

We find our appellate jurisdiction to be proper in this case. Appellant’s so-called “Motion for Reconsideration” was in substance and procedure actually a motion to dismiss the third-party intervenor for lack of standing. See American Mut. Liability Ins. Co. v. Moore, 120 Ga. App. 624 (171 SE2d 751). He timely obtained a certificate of immediate review to its denial, and filed his appeal petition “pursuant to OCGA § 5-6-34 (b),” which is the interlocutory appeal statute. The case clearly is one for interlocutory appeal, and therefore his mere misnaming of it as “discretionary” does not affect his stature in this court.

Except for giving his pleadings the wrong names, appellant-father proceeded properly and timely to vacate and appeal the order allowing Mary Carson to intervene in appellant’s suit against the mother. There is no magic in nomenclature; we construe pleadings properly filed to serve the best interests of justice, and to reflect their true function and intent. See Frost v. Frost, 235 Ga. 672, 674 (1) (221 SE2d 567).

As far as the record shows, Ms. Carson herself, without any notice to appellant, prepared the order to intervene and had the trial court execute it ex parte on February 16, only 22 days after the father sued the mother. The record does not show that Ms. Carson ever served a motion to intervene upon appellant prior to obtaining the intervention order ex parte, nor does it appear she served any of the voluminous “proposed” pleadings seeking to terminate his parental rights, except her three-question interlocutories. The record indicates appellant did not even know Mary Carson had, on February 16, made herself a party to his suit against his child’s mother.

Carson filed a lengthy “Notice to Produce,” which she certified as having served on appellant on February 26. At this point, appellant must have hied himself to the courthouse to find out why Ms. Carson was taking such a commanding interest in his suit against the mother.

The ex parte order to intervene was improper and should have been vacated. Gregory v. Tench, 138 Ga. App. 219 (225 SE2d 753). Shortly after appellant found out about it, he properly moved to vacate it by expressly seeking a dismissal of Carson for lack of standing, but called his pleading a “Motion for Reconsideration.” His talent for calling things by the wrong name causes much confusion, but his instincts as to the substance of what he was doing stand him well. There was in fact nothing to “reconsider,” for no legal judgment had ever been “considered”; but Brooks acted correctly in seeking to vacate the order and dismiss Ms. Carson for lack of standing. The trial court’s denial of appellant’s misnamed motion seeking to dismiss Carson was timely followed by a certificate of immediate review, and appellant timely sought appeal of it “pursuant to § 5-6-34 (b).” Jurisdiction of this case is thus properly lodged in this court -by interlocutory appeal.

2. We reverse in part and affirm in part. The trial court was statutorily required to make Ms. Carson a “party,” but not for the purposes she proposes.

OCGA § 19-9-50 requires Ms. Carson to be made a party to the father’s suit because she has physical custody of the child. The object of that slim codal provision seems to be mainly to ensure the physical custodian produces the child to the court. See OCGA § 19-9-51 (a). The Child Custody Intrastate Jurisdiction Act, of which the cited code sections are a part, is to be construed to facilitate its general purpose, which is to eradicate intrastate jurisdictional disputes and conflicts and avoid abductions and the “shifting of children from county to county.” OCGA § 19-9-21 (a) (1). The Act is to be construed in concert with existing law. Gambrell v. Gambrell, 246 Ga. 516 (272 SE2d 70). Nothing in it can increase the substantive rights of any person. Beyond the narrow provision for joinder as a “party” at § 19-9-50, neither the Georgia Code nor any Georgia case law expressly and intentionally gives a third party who is not a relative the right or power to instigate a challenge to the right of a natural parent of the child, if such parent has not lost custody by one of the means established in OCGA § 19-7-1 or OCGA § 19-7-4. We conclude that, although § 19-9-50 requires Ms. Carson to be made a “party” because she has physical custody of the child, the father has the prima facie right to custody, and Carson does not have a right to challenge the father’s right to custody in favor of herself, or to do anything to promote her own interests and rights, for she has none. But, she may serve as witness to the only material issue here, viz., the fitness or unfitness of the father as parent; and, she can do that only to the extent she has direct knowledge bearing pertinently on his present fitness.

It was long ago said that the latter code section (OCGA § 19-7-4) referring to the criteria for abandonment by a parent, must be strictly construed in favor of the parent, being a very harsh provision and “permitting as it does the taking of a child from its parent at the instance of any citizen, without regard to the individual right of the applicant.” (Emphasis supplied.) Hammond v. Hammond, 90 Ga. 527, 530 (16 SE 265). We doubt this statement is entirely true today, or whether it is procedurally correct, or legally and morally proper, to suggest that a child can be taken from its parent by “any citizen.”

On the principle of common sense, it is difficult to say persons having the natural concerns of blood and family communion have no place in calling to account an unfit parent of a child sheltered by the family, or whom the family seems to protect. To take such a stand would seem foreign to the precepts of child custody law as far as it seeks to strengthen family stability and accountability.

Therefore, instead of saying a relative has no right to instigate the removal of a child from an unfit parent, the courts have placed such actions under strictest scrutiny. See Blackburn v. Blackburn, 249 Ga. 689, 692 (292 SE2d 821). But, it seems clear to us from a review of the cases, that if the law tolerates the natural concern of a relative of the child, it naturally abhors interference between parent and child by third parties who are no relation.

In Carvalho v. Lewis, 247 Ga. 94 (274 SE2d 471), which involved a close relation, the Supreme Court held in accord with this court that in a custody dispute between a parent and a third party (a relation), the trial court must first make a determination as to whether the parent has lost his or her right pursuant to OCGA § 19-7-4 or that the parent is unfit pursuant to Georgia case law, e.g., Perkins v. Courson, 219 Ga. 611 (135 SE2d 388). Having under that restraint impliedly authorized the instigation of the dispute, the Supreme Court tersely held that in such a dispute between a natural parent and a “third party,” i.e., a paternal aunt in that case, the trial court could not “compare the relative merits of a parent to those of a third party.” (Emphasis supplied.) Carvalho, supra at p. 95.

“A finding of unfitness must center on the parent alone, that is, can the parent provide for the child sufficiently so that the government is not forced to step in and separate the child from the parent. A court is not allowed to terminate a parent’s natural right because it has determined that the child might have better financial, educational, or even moral advantages elsewhere. Chapin v. Cummings, 191 Ga. 408 (12 SE2d 312) (1940). Only under compelling circumstances found to exist by clear and convincing proof may a court sever the parent-child custodial relationship. . . . The ability of a parent to raise his or her child may not be compared to the superior fitness of a third person. That ability must be examined in a scrutinous, abstract light. Only in custody disputes between parents may a court determine which party is more suitable to be awarded custody, this being the so-called ‘best interest of the child’ test.” (Emphasis supplied.) Carvalho, supra at p. 95.

In a case involving the child’s grandmother as third party, we held: “Where a third party sues the natural, custodial parent to obtain custody of a child and to terminate the parent’s custodial rights in the child, the parent is entitled to custody unless the third party shows by clear and convincing evidence that the parent is unfit or otherwise not entitled to custody. Past unfitness, standing alone, is insufficient to terminate the rights of a parent in his child. Clear and convincing evidence of present unfitness is required.” (Emphasis supplied.) In re A. J. M., 169 Ga. App. 477, 478 (313 SE2d 495).

In cases where the third party was not a close relation, the tone of the analysis has become even more relentless. Even where the third party was the government agency charged with primary responsibility in these matters, we have held: “When contemplating taking custody of a minor child from his parent or parents and awarding it to a third party, the court must initially face the presumption, firmly embedded in our law, that it is in the child’s best interest to be with his natural parent or parents. [Cits.] In order for this presumption to be overcome, there must be a clear and convincing showing that the child is abandoned, deprived, or abused, or that the parent is unfit to receive or retain custody. [Cits.] Thus, in order to take custody from the natural parent or parents and award it to a third party, the court must consider not simply the ‘best interest of the child,’ which is the appropriate standard when the contest is between parents, [cit.], but the narrower criterion of parental fitness to have the child in his or her custody. [Cits.] Proof of parental unfitness must be clear and convincing. [Cits.] Evidence adduced to achieve this standard of proof must pertain to present rather than past misconduct. [Cits.]” In re M. M. A., 166 Ga. App. 620, 622 (305 SE2d 139).

In the case just cited, we also held: “The mere possibility that a child may receive superior influences or amenities in third-party custody is insufficient to justify taking him from his natural parents. Shover v. DHR, 155 Ga. App. 38 (270 SE2d 462) (1980). So important have our courts regarded the bond between parent and child that they have declined to sever it in instances of parental conduct far more egregious than [in this case]. ...” Id. at 624.

“There can scarcely be imagined a more fundamental and fiercely guarded right than the right of a natural parent to its offspring. To terminate that right is to sever that right for the future as effectively in law as if it never had existed. It is a tearing of the flesh and it can be done by the court only under the most carefully controlled and regulated circumstances for the sake of the child. There must be compelling facts to establish the necessary lack of ‘proper parental care or control’ justifying the government’s intrusion in cutting natural family ties.” (Emphasis supplied.) Nix v. Dept. of Human Resources, 236 Ga. 794, 795 (225 SE2d 306). See also Carvalho v. Lewis, supra. To sever parental ties absent such “compelling facts” would be tantamount to child abuse. Id.

“ ‘The law contemplates that one of the natural parents will be awarded custody of the child unless the present unfitness of the parents is established by clear and convincing evidence at the hearing on permanent custody. Only then is the trial court authorized to consider an award of custody to third parties.’ Childs v. Childs, [237 Ga. 177 (227 SE2d 49)].” (Emphasis supplied.) In re M. M. A., supra at pp. 624-625.

The foregoing statements from both appellate courts of this state indicate the third party has no place in the determination until and unless the parent has been declared unfit. All of what was just quoted was in a case involving the parent’s rights versus the Department of Family & Children Services as third party. It seems appropriate to infer, based on all the decisions we have studied, that the farther removed, in terms of relationship, the third party is from the child, the less right that third party has to challenge the natural parent’s prima facie right to his child.

In Drummond v. Fulton County Dept. of Family &c. Svcs., 237 Ga. 449, 450-451 (228 SE2d 839), the Supreme Court rather harshly described the posture of foster parents in such a dispute: “The Drummonds . . . urge that any application of the ‘best interests of the child’ rule necessarily implies some de facto rights arising from the psychological dependency of a parent-child relationship which has been sustained over a period of time. . . . The best interest of the child test has been adopted in many jurisdictions. [Cits.] This rule contemplates a presumption that the best interests of the child lie with the natural parent, but that this presumption may be rebutted by clear and convincing evidence to the contrary. [Cit.] . . . The Georgia law, however, has not followed this pattern. The best interests of the child test is used only between parents who both have equal right to the child. [Cits.] Where the dispute is between a natural parent and a third party, on the other hand, the court must award the custody of the child to the parent unless he has lost his parental prerogatives under [OCGA § 19-7-1] or is unfit. [Cits.] . . . [Appellants] misconstrue the Georgia law in assuming that the best interests of the child rule applies to foster parents. Without this test and its focus on the child, there is no basis for recognizing any right in the ‘psychological parents.’ Since the focus in determining whether a third party is entitled to custody is on the natural parents and whether or not they have forfeited their rights or are unfit . . . any relationship between the child and his foster parents is primarily irrelevant. Stuckey v. Jones, 212 Ga. 495 (93 SE2d 719) (1956); Watkins v. Terrell, 196 Ga. 651 (27 SE2d 329) (1943).” (Emphasis supplied.)

Again, this language in Drummond indicates the third party has no place in the custody matter until and unless the parent’s rights have been terminated.

Recently, we noted that under some prior cases, in a custody suit initiated by one parent against the other, “ ‘(t)he trial court has the power to award custody to third persons. . . .’ [Cits.]” Mitchell v. Mitchell, 184 Ga. App. 903, 906 (363 SE2d 159). That case involved an award of permanent custody to the grandparents with visiting rights in the parents, and did not involve a termination of parental rights. But, we reversed the trial court’s award of custody to the grandparents because the trial court had used the wrong standard to determine the matter. In remanding, we asseverated (p. 907): “Custody must be awarded to one of the natural parents . . . unless there is clear and convincing evidence that both [parents] are presently unfit. If the trial court . . . cannot find that there is clear and convincing evidence of appellant’s present parental unfitness, appellant must be awarded custody. That the trial court may be of the .opinion that [the grandparents] possess a superior fitness to appellant is immaterial.”

Our courts have thus struggled fitfully with some very harsh views of the comparative position of third parties, even close relations, and the rights of natural parents. The uneasy compromise, which is a very strict standard of proof of unfitness, recognizes the natural interest and concern of families in their members, and recognizes and promotes society’s strong interest in strengthening those concerns. But we find no parallel societal interest in a third party who is not bound by the ties of blood and family. Such a person is a stranger to the child in the eyes of the law. See Drummond, supra. The integrity of this principle remains, even if the equities in an individual case seem to differ.

If a third party obtains custody from one parent, it gives her no right and no advantage against the other parent, for one parent cannot contract away custody of the child to a third party in avoidance of the other parent’s rights. Foltz v. Foltz, 238 Ga. 193 (232 SE2d 66). If she is allowed to compete with the father before the father’s rights have been terminated on their own account, inevitably the focus in such a competition would shift from the present fitness of the parent to the comparative attributes of a legal stranger. Such a debate necessarily clouds the “scrutinous, abstract light” (Carvalho, supra at p. 95) in which only the parent’s present fitness should be examined, and in which the best interests of the child, as relates to a third party, are irrelevant. Drummond, supra.

Under this latter statement from Drummond, we do not see what role the third party Carson in this case can have as a party defendant in the father’s suit against the mother. The mother’s agreement to give Carson custody was ineffective as against the father {Foltz, supra), and certainly cannot serve to create rights in the third party against him. She is in no better position than the foster parents in Drummond. Since the mother seems not to have appeared, the prima facie right to custody is in the father. Custody must be awarded to him unless he is presently unfit. Mitchell, supra. If OCGA § 19-9-50 requires Carson be made a party, then in view of all the case law (see Gambrell, supra), this provision in the context of this case can only be pertinent to ensure that the person with physical custody delivers up the child. The code section cannot enlarge substantive rights she does not have, and it does not give her the right to vie for custody of the child.

The dilemma which has allowed third parties (usually relatives) to instigate disputes over parental fitness, arises from the supposed inadequate resources of appropriate government agencies, or in many cases, from the agency’s apparent lack of knowledge of a situation being privately disputed, and where the child is in good care. But we think this “dilemma” is largely imaginary, for the mechanisms clearly exist to permit the agency to set in motion a proceeding for termination of parental rights when such is indicated. When such a terrible, irrevocable thing is contemplated as severing a parent’s rights, particularly in favor of a third party who is a stranger in the law, the agency ought to instigate it.

Certainly the agency’s involvement provides important safeguards and streamlines any court process. In fact, the trial court here has ordered the agency to make a study of the father’s circumstances; it is difficult to see what contribution the third party can make to this endeavor.

If the third party has any knowledge directly pertinent to the only question at issue, i.e., the parent’s fitness, she can offer it like any other witness when the issue has properly been raised. Otherwise, it is plain wrong to invite a third party, however well-meaning, to obtain possession of a child, by whatever means, without concurrence of one of the parents, and then herself act to end that parent’s rights simply because she has obtained physical custody and has inevitably, developed “psychological ties” with the child and perhaps, or most likely, prevented the development of such ties between the parent and child.

The third party’s allegations in this case in support of her claim that the father is unfit, are paradigmatic of the difficulties inherent in these situations: she asserts that the child does not know the father, and is very fearful of living with him. One wonders how, or why, the child is so fearful of living with her father if she does not know him and has not had the opportunity to know him. The third party does not allege here that the father ever abused the child at any time, or that the child has any reason whatsoever to fear him. The question naturally arises, then, as to what the child has been told about her father, or who, in fact, is really fearful of her living with him. Furthermore, the allegation that the father is unfit to raise his own child because he has four stepchildren tends, on the surface, more to indicate that his experience with children is greater, his tolerance and patience long, and his desire to add another child to this large brood is proportionately favorable to him. The allegation that he does not even own a telephone proves nothing. Allegations such as these becloud the issues raised by the father’s suit against the mother, and have no place in it. Certainly they do nothing to focus the “abstract, scrutinous light” in which the father’s fitness must be examined. See Carvalho, supra.

Lastly, we find it important to note, in stating these views, that in a famous case involving reversal of an award to the grandmother (.Blackburn v. Blackburn, supra), Chief Justice Jordan dissented from the judgment entirely by saying that the grandmother had no standing to petition for custody unless and until the natural father’s rights had been fully adjudicated. Not only is this view consistent with all our cases which hold (see, e.g., Carvalho, supra; Childs, supra) that only after the parent has been determined unfit can the court turn to a third party, but it also suggests that a third party who is not a relation should have even less standing to raise the issue.

We conclude that although OCGA § 19-9-50 requires that Carson be made a “party” to the father’s suit against the mother, this is only because she had physical custody of the child; and she has no standing to petition to terminate the father’s rights. She has acquired no rights by virtue of having been given custody by the mother, or by virtue of having developed certain emotional ties after obtaining physical custody of the child. Drummond, supra. If she becomes the protagonist in the case, inevitably she acquires certain procedural rights which, by illusion, may seem to expand to substantive rights.

As the only question in the father’s suit against the mother is resolved by her non-appearance, the prima facie right to custody is in the father. Blackburn, supra; Childs, supra; Mitchell, supra. We do not think the mother’s “agreement” to give Carson physical custody has robbed the father of his rights. At this stage, if he is not a fit parent, proceedings to terminate his parental rights should be instigated by the appropriate governmental agency. If the third party has a truly beneficial role to play, it should emerge in the normal course of the proceedings.

Decided January 19, 1990

Rehearing denied February 2, 1990

Betty S. Frazer, for appellant.

Brown, Phillips & Scoccimaro, Ralph O. Scoccimaro, for appellee.

As for the trial court’s apparent conclusion that the child’s interests are inadequately protected if Carson is not allowed to intervene fully as party defendant, we fail to see any evidence that the DFCS in this jurisdiction is not competent to assess and investigate the entire circumstances.

Moreover, the trial court’s order to have the DFCS investigate Carson’s home as well as Mr. Brooks’ home, is in error, inasmuch as it implies and indicates directly that the state of her home has any relevance whatever to the question of the father’s fitness.

As for the trial court’s having denied the father’s motion to reconsider Carson’s intervention, on grounds that Brooks had not paid child support for three years, it must be emphasized that his failure to pay child support to a third party when the child is in custody of a third party, does not alone authorize a finding of abandonment. Howell v. Gossett, 234 Ga. 145, 147 (214 SE2d 882); Shaddrix v. Womack, 231 Ga. 628 (203 SE2d 225); McMillan v. McMillan, 224 Ga. 790 (164 SE2d 839).

The judgment below is affirmed insofar as it allows Carson to become a party pursuant to OCGA § 19-9-50, but reversed insofar as it permits her to petition to terminate the father’s parental rights, and insofar as it permits her to give evidence of her own fitness and of the child’s best interests. The suit against the mother must be adjudicated first. If the father is not fit to have the child, his unfitness may be raised by the proper authority or the trial court sua sponte. If any dilemma arises by a refusal of the department to act, we are confident the trial court is competent to resolve the matter in the individual case. But until the father’s fitness has been properly adjudicated, the third party Carson has no right to challenge him.

Judgment affirmed in part and reversed in part and case remanded for proceedings not inconsistent herewith.

Been, P. J., concurs. Sognier, J., concurs in judgment only.


author: McMurray, Presiding Judge.

text:
    A89A2224.
    BUDGET-LUXURY INN OF DAYTON, LTD. et al. v. KAMASH ENTERPRISES, INC.
    (390 SE2d 607)
   McMurray, Presiding Judge.

On June 20,1986, plaintiff Kamash Enterprises, Inc., and defendant Budget-Luxury Inn of Dayton, Ltd., executed a “letter of commitment” pursuant to which plaintiff agreed to purchase certain property from defendant for the sum of $900,000. The property was described as the “Admiral Benbow Hotel (excluding garage), 3rd and Jefferson Street, Dayton, Ohio.” The agreement provided that the closing was “contingent upon inspection and approval of the statements of accounts of the hotel and inspection and approval of the property itself within 14 days of the acceptance of this Letter of Agreement by all parties.” With regard to earnest money, the agreement provided: “Upon the signing of this agreement, the purchaser shall remit the sum of $50,000 earnest money to Uni-Real, Inc. (a Georgia Licensed Broker) to be thereafter held by Uni-Real, Inc., until the removal of the 14-day contingency period hereinabove referred to and then shall be deposited into a trust account of Escrow Agent — To be appointed for closing (Chicago Title & Insurance Co.).” Pursuant to the commitment letter, plaintiff remitted a $50,000 check made payable to defendant Uni-Real, Inc., and endorsed as follows: “For deposit only in escrow acct.”

Thereafter, the parties amended their agreement in order to reduce the total price of the property to $800,000. In a July 10, 1986, letter confirming the parties’ understanding, the president of defendant Uni-Real, Inc., set forth the new terms of payment. In so doing, he added: “As per your agreement, we will deposit your check in the amount of $50,000, which is your non-refundable earnest money deposit, and this will apply in full against the purchase price.” Plaintiff acknowledged and agreed to the new terms set forth in the July 10, 1986, letter by signing it.

Thereafter, the parties failed to close and, on August 5, 1986, plaintiff demanded the return of the earnest money. Defendants refused to return the earnest money and plaintiff instituted suit seeking the return of the earnest money plus interest from August 5, 1986. Defendants answered the suit and denied any liability to plaintiff.

The case was tried by the court sitting without a jury. With regard to the character of the earnest money, the president of defendant Uni-Real, Inc., testified: “I think the intent in this instance was not as a reimbursement for any economic out of pocket expense, but it was an effort on the part of the seller to see if the buyer was dead serious in this transaction to take this property off of the market for what amounted to six to eight weeks.” He added that the $50,000 figure “was an arbitrary number that . . . the seller suggested.”

After trial, judgment was entered in favor of plaintiff and against defendants, the trial court reasoning that the agreement was unenforceable because the description of the property was not set forth with sufficient certainty to identify and quantify the land in question. Defendants appeal, asserting (1) the trial court should not have considered the sufficiency of the legal description because that was not an issue at trial and (2) the trial court erred in ruling the legal description to be insufficient. Held:

“Depending on the language used in the contract and the intent of the parties, the existence of an earnest money provision in a real estate contract can have one of three effects in the case of a breach by the buyer. First, the money could be considered as partial payment of any actual damages which can be proven as a result of the breach; second, the money could be applied as part payment of the purchase price in the enforcement of the contract in a suit for specific performance; and thirdly, the money could be liquidated damages for breach of the contract by the buyer.” Everett Assoc. v. Garner, 162 Ga. App. 513, 515 (291 SE2d 120). In the case sub judice, defendants seek neither actual damages nor specific performance. Thus, defendants can justify retaining the money only if it constitutes liquidated damages.

“A contractual provision requiring payment of a stipulated sum by one of the parties upon termination or cancellation of the contract will be treated as an enforceable liquidated damages provision rather than an unenforceable penalty only if all three of the following factors are present: First, the injury caused by the breach must be difficult or impossible of accurate estimation; second the parties must intend to provide for damages rather than a penalty; and third, the stipulated sum must be a reasonable pre-estimate of the probable loss resulting from such a breach. See Thorne v. Lee Timber Prods., 158 Ga. App. 226, 227 (279 SE2d 521) (1981), citing Southeastern Land Fund v. Real Estate World, 237 Ga. 227, 230 (227 SE2d 340) (1976).” Broadcast Corp. of Ga. v. Subscription Television, 177 Ga. App. 199 (338 SE2d 775). Based on the evidence adduced at trial, at least two of the three factors required for a finding of liquidated damages are missing: the intention to provide for damages and the estimate of the probable loss. The testimony of defendant Uni-Real, Inc.’s president makes this clear. In his words, the $50,000 figure bore no relation to estimated damages; rather, it was an arbitrary number — high enough to ensure that the buyer would go through with the deal.

Because the earnest money in the case sub judice was clearly an unenforceable penalty, Florence Wagon Works v. Salmon, 8 Ga. App. 197 (2) (68 SE 866), we need not consider whether the trial court erred in its consideration of the description set forth in the letter of commitment. Whether or not the trial court erred is of no consequence since there is no evidence in the record which would authorize a judgment for defendants. See Ricks v. Redwine, 73 Ga. 273 (2a) (1884); Scales v. Wood, 100 Ga. App. 836, 837 (4) (112 SE2d 670).

Decided January 16, 1990

Rehearing denied February 2, 1990

Slaughter & Virgin, Frank W. Virgin, for appellants.

Hartley, Rowe & Fowler, G. Michael Hartley, Elizabeth A. Geoffroy, for appellee.

Judgment affirmed.

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


author: Pope, Judge.

text:
    A89A1713, A89A1714.
    BENNETT v. FINE JEWELERS ATLANTIC GUILD, INC. et al.; and vice versa.
    (390 SE2d 625)
   Pope, Judge.

Appellant Cheryl Leah Shackelford Bennett was employed by Bailey, Banks & Biddle as a salesperson at its Perimeter Mall jewelry store. Several weeks after plaintiff began working at the store, a six-carat diamond ring, as well as several other pieces of jewelry, were reported missing. Defendant Fine Jewelers Atlantic Guild, Inc. (Fine Jewelers), which owns and operates Bailey, Banks & Biddle, sent two of its in-house security employees, defendants Don Prange and Susan Echols, to investigate. As part of their investigation, all employees of the store were required to undergo polygraph examinations. Based on the results of these examinations, several employees, including plaintiff, were asked to submit to re-examinations. Following these examinations, plaintiff remained under suspicion for the theft of the ring because of deceptive responses. Moreover, Robin Scheller, another employee, told the investigators plaintiff took the ring out of the envelope where it had been placed, tried the ring on her finger and commented on the value of the ring. Scheller also told the investigators plaintiff had walked to the back of the store with the ring in her possession and that plaintiff failed to bring the ring back to the desk and replace it. Scheller further stated that she believed the ring was in plaintiff’s apartment.

Plaintiff denied ever having seen the missing diamond. She also told the investigators she was afraid Scheller had placed the diamond in her apartment in order to divert suspicion from herself. Prange and Echols conducted a thorough search of plaintiff’s apartment (potted plant, sugar and flour containers emptied, freezer and clothes searched) but failed to uncover the diamond. However, following the search, the investigators contacted Detective Lanny Mosley of the DeKalb County Police Department with the information they had acquired during their investigation. Plaintiff was subsequently arrested for theft of the diamond ring, pursuant to an arrest warrant sworn out by Echols, acting as Fine Jewelers’ agent.

Plaintiff commenced the present action against defendants/appellees Fine Jewelers, Prange, Echols and others subsequently dismissed from the action by plaintiff. Plaintiff’s amended complaint states claims for wrongful arrest and malicious prosecution. Defendants filed a motion for summary judgment, which the trial court granted on the basis that there had been no termination of the prosecution in plaintiff’s favor. However, the trial court also found that genuine issues of material fact remained with regard to the elements of lack of probable cause and malice. In Case No. A89A1713 plaintiff appeals the trial court’s grant of summary judgment to defendants; in Case No. A89A1714 defendants appeal the trial court’s findings on the elements of probable cause and malice.

1. We agree with the parties that for purposes of the present appeal it is immaterial whether the tort alleged here is classified as a malicious arrest or whether it is classified as a malicious prosecution. “Malicious prosecution and malicious arrest differ only in that malicious prosecution contains the additional element of showing that a prosecution was carried on. [Cits.] To recover in tort for either malicious prosecution or malicious arrest, the [plaintiff] had the burden of showing that the prior criminal proceeding, whatever its extent, had terminated in her favor.” McCord v. Jones, 168 Ga. App. 891, 892 (311 SE2d 209) (1983). Contrary to the trial court’s finding, plaintiff argues the necessary favorable termination has been shown, as demonstrated by a letter sent to plaintiff by the assistant district attorney charged with prosecuting the charges against her. That letter states as follows: “Please be advised that the above-styled case will not be presented to the Grand Jury at this time. The case will remain closed unless other evidence is forthcoming or further evaluation becomes necessary.” In support of their motion for summary judgment, defendants presented the assistant district attorney’s affidavit, wherein he averred that although the case was not presented to the Grand Jury, “the proceeding is still pending, and there has been no formal entry of a dismissal of the charges. At any time, within four years of the date of the alleged theft, our office could proceed with the case and present it to the Grand Jury for an indictment.”

“In Grist v. White, 14 Ga. App. 147, 149 (1) (80 SE 519) (1914), this court said: ‘While, under the Code, an arrest under process of law will give rise to an action for damages, if the arrest be made with malice and without probable cause, still there must have been a judicial ascertainment of the fact that the arrest was unlawful, evidenced by an order dismissing the warrant or vacating the process under which the arrest was made. (Cit.)’ (Emphasis supplied.)” Banta v. Quik-Thrift Food Stores, 187 Ga. App. 250, 251 (370 SE2d 3) (1988). “The [assistant] district attorney’s affidavit [as well as the letter relied on by plaintiff] shows the criminal [action is] still pending against plaintiff. ... In the absence of a showing by the [plaintiff] that the prosecution has terminated in [her] favor, defendants are entitled to [dismissal of] the claims for malicious arrest.” Stephens v. Big Apple Supermarkets, 130 Ga. App. 841, 843 (3) (204 SE2d 805) (1974). Accord Hardee’s Food Systems v. Hall, 184 Ga. App. 586 (5) (362 SE2d 143) (1987); Watkins v. Laser/Print-Atlanta, 183 Ga. App. 172, 172-173 (1) (358 SE2d 477) (1987); McCord v. Jones, supra.

Decided February 2, 1990.

Edwin Marger, for appellant.

Long, Weinberg, Ansley & Wheeler, J. M. Hudgins IV, Lance D. Lourie, for appellees.

It does not follow, however, that the trial court was correct in granting summary judgment to defendants on this issue. In Primas v. Saulsberry, 152 Ga. App. 88 (262 SE2d 251) (1979), we held that the defense that the prosecution has not terminated in a malicious prosecution action is one in abatement, because the prosecution “may yet terminate in the plaintiff’s favor, and he may yet have a cause of action.” Id. at 88. “ ‘ “A motion for summary judgment is designed to test the merits of a claim and cannot be granted on matters in abatement. (Cits.) Such matters are properly disposed of pursuant to [a] motion to dismiss. See (OCGA §§ 9-11-12 and 9-11-43 (b)).” [Cits.]’ ” Fleming v. Caras, 170 Ga. App. 579 (317 SE2d 600) (1984). “The trial court’s judgment with respect to the malicious [arrest] count is accordingly reversed with direction that a new order be entered dismissing the claim ‘without prejudice.’ ” Primas, supra at 89.

2. Because we have determined that this action should be dismissed without prejudice, it is unnecessary for us to consider the issues raised by defendants in their cross-appeal.

Judgment reversed and case remanded with direction in Case No. A89A1713. Appeal dismissed in Case No. A89A1714.

Banke, P. J., and Sognier, J., concur.


text:
    A89A1991.
    BOND v. DAVIS.
    (390 SE2d 627)
   McMurray, Presiding Judge.

Louise G. Bond (plaintiff) brought an action against Judy A. Davis (defendant) and alleged that she sustained injuries when defendant negligently collided into the rear of her vehicle.

The case was tried before a jury and the evidence revealed that defendant’s vehicle collided into the rear of plaintiff’s vehicle while plaintiff was attempting to negotiate a stream of water which was unexpectedly flowing across the roadway. The jury returned a verdict for plaintiff in the amount of $2,500. When judgment was entered, plaintiff’s award was reduced to zero according to the parties’ pre-trial stipulation “that the sum of personal injury protection benefits received by the plaintiff from her own insuror [sic] in the amount of $5,000.00 would be deducted from any verdict rendered by the jury . . . .” Plaintiff’s motion for new trial was denied and this appeal followed. Held:

1. In her first, second and third enumerations, plaintiff contends the trial court erred in charging the jury on accident, sudden emergency and absolute negligence. In her fifth, sixth and seventh enumerations, plaintiff contends the trial court erred in failing to give three of her requested instructions.

We have examined the jury instructions which form the basis of the above enumerations and find that they relate solely to the issue of liability. In light of the jury’s verdict for plaintiff on the issue of liability, we find no harmful error. Foist v. Atlanta Big Boy Mgmt., 166 Ga. App. 304, 305 (2) (304 SE2d 111). See Fred F. French Mgmt. Co. v. Long, 169 Ga. App. 702 (1), 703 (314 SE2d 666).

2. In her fourth enumeration of error, plaintiff contends the trial court erred in charging the jury on nominal damages, arguing that the “charge of nominal damages emphasized and unduly stressed the reduction of any award of damages. . . .”

The trial court’s instruction on nominal damages was as follows: “I charge you that damages are given as compensation for an injury done, and generally this is the measure when damages are of a character to be estimated in money. If the injury is small or mitigating circumstances are strong, only nominal damages are given. What would be a proper amount of nominal damages is a question for you to decide under all the facts and circumstances of this case.” This instruction is a correct statement of law. OCGA § 51-12-4. Further, we find nothing in the charge which “unduly” emphasized or stressed a need for the jury to reduce plaintiff’s damages. This enumeration is without merit.

3. Finally, plaintiff challenges the jury’s verdict, arguing that the verdict was below the amount of special damages proved by uncontradicted evidence. This argument is without merit.

Although plaintiff produced uncontradicted evidence showing that her special damages far exceeded the jury’s verdict, plaintiff’s own physician testified that he examined plaintiff on several occasions after the accident and that his findings were not consistent with plaintiff’s claim that her neck was severely injured in an automobile collision. In fact, plaintiff’s physician testified that plaintiff was exaggerating the magnitude of her symptoms and that she requested him to prepare a “slip” which excused her from all work related activities and that, in his opinion, a “no-work slip” was unnecessary because his records showed that plaintiff was not then employed. This evidence was sufficient to authorize a finding that defendant’s negligence was not the sole cause of plaintiff’s special damages. “In such cases the jury is free to decide what it thinks is a fair and reasonable amount of compensation under the circumstances. McBowman v. Merry, 104 Ga. App. 454 (1) (122 SE2d 136) (1961); Byrom v. Felker, 137 Ga. App. 400, 402 (3) (224 SE2d 72) (1976).” Calhoun v. Branan, 149 Ga. App. 160 (1), 161 (253 SE2d 838).

Decided February 2, 1990.

O. L. Crumbley, Jr., Charles R. Free, for appellant.

W. Dennis Mullís, for appellee.

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    A89A2154.
    LeROUX v. LEVINE et al.
    (390 SE2d 629)
   Banke, Presiding Judge.

The appellant sued the appellees to recover for the alleged wrongful death of her husband due to medical malpractice. During the trial of the case, the appellees moved for a directed verdict, contending that there was a failure of proof on the issue of proximate cause. The trial court did not grant the motion, and the case was submitted to the jury; however, a mistrial was thereafter declared due to the inability of the jurors to agree upon a verdict. The appellees then filed a timely motion for judgment notwithstanding the mistrial, which the trial court took under advisement. Prior to the entry of any ruling on that motion, the appellant filed a “dismissal without prejudice.” The appellees moved to strike the dismissal, and the trial court did so, simultaneously granting the motion for judgment notwithstanding mistrial. On appeal, the appellant contends that the trial court was divested of jurisdiction to consider the motion for judgment notwithstanding the mistrial following the filing of her voluntary dismissal. Held:

OCGA § 9-11-41 (a), as amended by Ga. L. 1986, p. 816, § 1, specifies, in pertinent part, as follows: “Subject to the provisions of . . . any [other] statute, an action may be dismissed by the plaintiff, without order or permission of court, by filing a written notice of dismissal at any time before the plaintiff rests his case. After the plaintiff rests his case, permission and an order of the court must be obtained before dismissal.” Prior to the 1986 amendment, the Code section had permitted voluntary dismissal by the plaintiff without permission of the court “at any time before verdict.” OCGA § 9-11-41 (a) (Ga. L. 1966, p. 609, § 41).

Relying on Delta Air Lines v. Van Diviere, 192 Ga. App. 207 (384 SE2d 272) (1989), the appellant contends that although she may have temporarily lost the right to file a voluntary dismissal without the permission of the court upon resting her case, she reacquired the right after the court declared a mistrial. In that case, we held that a plaintiff was statutorily entitled to dismiss without the court’s permission following the grant of a mistrial and before commencement of a second trial, “because the practical effect of [a] mistrial [is] to return the parties to a pre-trial status.” Id. at 208. However, where a motion for judgment notwithstanding mistrial remains pending at the time the dismissal is filed, the parties clearly have not yet been “return[ed] to a pre-trial status.” Accordingly, we do not consider the Delta Air Lines holding to be controlling in the present case.

The appellees contend that the trial court retained the authority to rule on the sufficiency of the plaintiff’s evidence under OCGA § 9-11-50 (b), which provides in pertinent part as follows: “Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to later determination of the legal questions raised by the motion. . . . [I]f a verdict was not returned, [a] party . . . may move for judgment in accordance with his motion for a directed verdict. ... If no verdict was returned, the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.” The appellees argue that because this Code section expressly permits the trial court to reconsider its decision not to direct a verdict in cases where no verdict is reached by the jury, OCGA § 9-11-41 (a) should not be interpreted as permitting the plaintiff to prevent such reconsideration by the expedient of filing a voluntary dismissal. We agree. Construing the provisions of OCGA §§ 9-11-41 (a) and 9-11-50 (b) together, as we are required to do, we accordingly hold that where a mistrial has been declared due to the inability of the jury to reach a verdict and the defendant thereafter files a timely motion for judgment notwithstanding the mistrial, the plaintiff’s right of voluntary dismissal is not restored unless and until that motion has been denied. Inasmuch as the court’s decision to grant the motion for judgment notwithstanding the mistrial in the present case has not been attacked on its merits, the judgment appealed from is accordingly affirmed.

Decided February 2, 1990.

Freeman & Hawkins, Paul M. Hawkins, Robert U. Wright, for appellant.

Alston & Bird, Judson Graves, Bryan A. Vroon, for appellees.

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A2246.
    OGLESBY v. THE STATE.
    (390 SE2d 630)
   McMurray, Presiding Judge.

Defendant was convicted of two counts of selling cocaine. He appeals. Held:

1. In his first enumeration of error, defendant contends the trial court erred in failing to require the State to disclose exculpatory material pursuant to defendant’s Brady motion. Specifically, defendant asserts the State should have been required to produce a tape recording of a conversation between defendant and the State’s primary witness (who purchased cocaine from defendant). This enumeration of error is without merit because the tape recording does not exist. (Although the State’s primary witness wore a transmitter when she purchased cocaine from defendant on one of two occasions, her conversation with defendant was not recorded.) The State cannot be required to produce what it does not have.

2. Defendant’s second enumeration of error, that the trial court erred in failing to require the State to reveal the deal it made with the State’s primary witness, is likewise without merit. The State fully disclosed the extent of its dealings with the State’s primary witness and defendant made good use of that information at trial.

3. The trial court did not err in finding that the chain of custody of the contraband was intact. “[I]t is not necessary that the state negative all possibility of tampering but only that it show it is reasonably certain there was no alteration — when there is only a bare speculation of tampering, it is proper to admit the evidence and let what doubt remains go to its weight. [Cits.]” Meadows v. State, 135 Ga. App. 758, 760 (219 SE2d 174). There is no merit in the third enumeration of error.

4. In his fourth enumeration of error, defendant asserts the trial court erred in failing to quash the indictment. In this regard, defendant points out that according to the indictment, he sold cocaine on June 17, 1988, but according to the arrest warrant affidavit he was alleged to have sold cocaine on June 16, 1988. We find no error.

The evidence introduced at trial demonstrated that defendant sold cocaine on June 17, 1988, as alleged in the indictment. Regarding the discrepancy, the officer who applied for the arrest warrant testified that the wrong date was mistakenly put on the arrest warrant affidavit. The resulting conflict in the evidence was a matter for the jury to resolve. See Williams v. State, 184 Ga. App. 68 (1) (360 SE2d 634).

Defendant was definitely informed of the charge against him via the indictment and he was able to present his defense to the indictment. It cannot be said, therefore, that the indictment should have been quashed. See generally DePalma v. State, 225 Ga. 465, 469 (3) (169 SE2d 801).

5. Defendant made an extraordinary motion for new trial based on the alleged discovery of new evidence. In this regard, he alleged that after the trial he learned that defendant’s father was solicited for an act of sodomy by the State’s primary witness. He also alleged that during cross-examination of the State’s primary witness he learned the name of another person, James Harris, who was present when the second sale took place and that Harris would testify there was no such sale.

In an affidavit attached to the motion, Harris deposed that on a Friday night (the date and time were not specified) he was with the State’s primary witness at a certain location when defendant drove by and that he did not observe defendant sell cocaine to the State’s primary witness. The trial court denied the motion and defendant assigns error upon that ruling.

“In the case of Berry v. State, 10 Ga. 511, [512, 513], it was held that it is incumbent on a party who asks for a new trial on the ground of newly discovered evidence to satisfy the court: (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the. affidavit of the witness himself should be procured or its absence accounted for; and [6] that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness.” Burge v. State, 133 Ga. 431, 432 (66 SE 243).

“Motions for new trial on the ground of newly discovered evidence are not favored and are addressed to the sole discretion of the trial judge, which will not be controlled unless abused. [Cit.J” Van Scoik v. State, 142 Ga. App. 341 (235 SE2d 765). We cannot say the trial court abused its discretion in denying defendant’s extraordinary motion for new trial. The evidence that the State’s primary witness solicited defendant’s father is merely impeaching. And it cannot be said James Harris’ testimony would probably produce a different verdict since Harris does not specify the date or time of the occurrence which he witnessed. Moreover, a review of the trial transcript demonstrates that the identity of James Harris was known to the defense when the State’s primary witness was questioned by the defense before the trial even began, and yet, no steps were taken to procure Harris’ testimony for trial. The defense’s showing as to due diligence in this regard cannot be deemed satisfactory.

Decided February 2, 1990.

Hurl R. Taylor, Jr., for appellant.

Robert F. Mumford, District Attorney, Cheryl F. Custer, Assistant District Attorney, for appellee.

6. The trial court charged the jury that only physicians, dentists, veterinarians, or pharmacists are authorized to prescribe, dispense and distribute controlled substances, adding that an individual like defendant is not so authorized. This charge was not erroneous because no issue was raised regarding defendant’s qualification to distribute controlled substances. Bloodworth v. State, 129 Ga. App. 40 (1) (198 SE2d 341); Green v. State, 129 Ga. App. 27, 28 (2) (198 SE2d 343).

7. The trial court did not err in denying defendant’s motion for new trial.

Judgment affirmed.

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


author: Sognier, Judge.

text:
    A89A2258.
    BARBER v. COLLINS.
    (390 SE2d 633)
   Sognier, Judge.

Eugene Barber submitted to the Clerk of the Superior Court of Fulton County an affidavit of indigency and a claim to be asserted against Marcus E. Collins in his capacity as Commissioner of the Department of Revenue. Pursuant to OCGA § 9-15-2 (d), the clerk presented the pleading to a judge of that court, who ordered that the claim be filed. The claim subsequently was presented to another judge of the superior court, who entered an order finding that the claim showed a complete absence of any justiciable issue of law or fact. Barber appeals from the order denying filing of his claim.

1. Appellee’s motion to dismiss the appeal is wholly without merit because OCGA § 9-15-2 (d) expressly provides that “[a]n order denying filing shall be appealable in the same manner as an order dismissing an action,” and here the order appealed from was final within the meaning of OCGA § 5-6-34 (a) (1) in that the case was no longer pending in the court below.

Decided February 2, 1990.

Eugene Barber, pro se.

Michael J. Bowers, Attorney General, H. Perry Michael, Executive Assistant Attorney General, Harrison W. Kohler, Deputy Attorney General, David I. Adelman, for appellee.

2. Appellant contends the order appealed from was invalid because of the issuance of the first order directing the filing of his complaint. We agree and reverse. OCGA § 9-15-2 (d) provides that when a pro se civil action and affidavit of indigency are presented to the court, the clerk “shall present the complaint or other initial pleading to a judge of the court” for review. (Emphasis supplied.) Here, that procedure was followed, and the judge to whom appellant’s claim was presented found that the complaint set forth a justiciable issue, and directed the clerk to file the pleadings. This order was not vacated or withdrawn, nor was it revised or revoked during the same term of court by the judge who issued it. Compare LeCraw v. Atlanta Arts Alliance, 126 Ga. App. 656, 663 (191 SE2d 572) (1972). Accordingly, the second order denying filing was a nullity.

3. In his notice of appeal appellant petitions for recusal of the judge who entered the second order. There is nothing in the record to indicate that appellant filed a motion for recusal in the superior court or obtained a ruling from the lower court on this issue. Accordingly, this court has nothing to review. Savage v. Savage, 234 Ga. 853, 856 (218 SE2d 568) (1975).

Judgment reversed.

Banke, P. J., and Pope, J., concur.


text:
    A89A2337.
    MATTHEWS v. THE STATE.
    (390 SE2d 873)
   Sognier, Judge.

Stanford Matthews was convicted of trafficking in cocaine and possession of a firearm in the commission of a felony, and he appeals.

1. Appellant first contends the trial court erred by allowing testimony by the State’s witnesses and argument by the prosecutor concerning appellant’s activities as a drug “supplier.”

(a) Appellant was charged with selling 82.6 grams of cocaine to a Gwinnett County undercover officer. Mickey Barker and Teri Hayes, appellant’s alleged accomplices who previously had pleaded guilty to drug charges, testified that on numerous occasions they had bought cocaine from appellant and had acted as runners for him. Referring to his decision in a prior hearing on this issue, the trial judge overruled appellant’s objections to this testimony, and each time explained to the jury that appellant was not charged with these other offenses and that the evidence was admitted only for the purpose of showing bent of mind, intent, or course of conduct.

Although evidence of other crimes committed by a criminal defendant generally is not admissible, an exception to that rule may be made provided the evidence establishes “ ‘the defendant was in fact the perpetrator of the independent crime [and there is] sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter. [Cit.]’ ” State v. Johnson, 246 Ga. 654, 655 (272 SE2d 321) (1980). Once this showing is made, evidence of other similar crimes may be admitted to show “ ‘identity, motive, plan, scheme, bent of mind, and course of conduct. (Cits.)’ [Cit.]” Id.

Here, the evidence adduced by the State clearly established that appellant was the person who had supplied and sold cocaine to the witnesses. We find the challenged evidence was admissible to show identity, bent of mind, and course of conduct, and accordingly find no error in the trial court’s decision. See id. at 655-656 (1).

(b) In her opening and closing arguments, the prosecutor described appellant as a “drug dealer” and “drug supplier” and referred to “prior offenses” (drug sales) in which appellant had been involved. As we have found the evidence described by the prosecutor was admissible, we find no error in permitting this argument by the State.

2. Appellant also objects to the admission of two hearsay statements made by Diane Yociss, the undercover officer, as prejudicial to him.

(a) His first objection is to Yociss’s statement that when she arrived at the house at which she was supposed to purchase cocaine, the men she met at the scene “told [her] that the man had just left, and in drug jargon, the man is the supplier.” Under OCGA § 24-3-2, conversations had in the course of a legal investigation may be admitted as original evidence to explain the conduct of a law enforcement official provided the conduct involves a matter relevant to the issue on trial. Ivester v. State, 252 Ga. 333, 335 (313 SE2d 674) (1984). Yociss’s statement did explain why she left the house and returned the next day, which was relevant to the case because upon her return she made an appointment to buy cocaine from appellant. Accordingly, the trial court properly admitted the testimony. See id. Further, as nothing was said to indicate that appellant was “the man,” we find no prejudice to appellant. Compare id. at 335-336.

(b) Yociss testified that after she made her first drug purchase from appellant’s alleged accomplice, “Claude [the accomplice] followed me out, he was looking around the parking lot, trying to see if he could see anyone suspicious, at that time. He told me —” Appellant’s trial counsel then interposed a hearsay objection, which the trial court overruled, and Yociss continued her narrative by describing the arrangements made for a subsequent drug transaction, but did not repeat what Claude had said.

Decided February 2, 1990.

Loftiss, Van Heiningen & Ward, Walter Van Heiningen, for appellant.

Appellant’s argument concerning this testimony is similarly without merit. We need not decide whether the trial court’s ruling on his hearsay objection was correct because the objection was made before Yociss related Claude’s statement to her, and in her testimony following the objection she did not testify as to what Claude told her. Even assuming, without deciding, that appellant is correct in arguing that the hearsay objection was interposed to Yociss’s statement that the accomplice was looking out for suspicious persons, we find no error, as that testimony was not hearsay because it was based on her impression of Claude’s actions, not any statement of his. See OCGA § 24-3-1 (a); see also Bennett v. State, 49 Ga. App. 804-805 (1) (176 SE 148) (1934).

3. On cross-examination, appellant’s final enumeration of error concerns the trial court’s refusal to allow appellant to ask Mickey Barker, who had entered a guilty plea and was cooperating with the prosecution prior to his sentencing, if he had been told what period of time Georgia law prescribed as the mandatory minimum sentence for his crime. Appellant contends that this ruling and the overruling of his subsequent motion for mistrial made on this issue deprived him of his right under the Sixth Amendment and OCGA § 24-9-64 to a thorough and sifting cross-examination. We do not agree. While cross-examination concerning the interest, attitude, and feelings of a witness is permissible, Harrell v. State, 139 Ga. App. 556, 560 (4) (228 SE2d 723) (1976), here the trial court explained to the jury that Barker had entered a guilty plea and that his mandatory minimum sentence could be reduced by the court only upon the State’s recommendation. The court also permitted appellant’s counsel to question Barker at length regarding his involvement in narcotics sales and the circumstances of his plea agreement. See id. at 560-561. Thus, the trial court did allow appellant to establish the basis for possible bias or interest of the witness. “This situation called for the exercise of the trial judge’s discretion in limiting cross examination to relevant issues and [precluding] repetitive questions. [Cit.] We find no abuse of discretion of the trial court, [cit.]” id. at 561, and likewise find no abuse of discretion in the denial of appellant’s motion for mistrial.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.


author: Deen, Presiding Judge.

text:
    A90A0393.
    HUTCHINSON et al. v. PERKINS.
    (391 SE2d 122)
   Deen, Presiding Judge.

The Hutchinsons, appellants here, appeal from a directed verdict awarded appellee in a trial of a dispute over monies allegedly due plaintiffs/appellants for repair work performed on a Greene County residence owned by a third person not a party to the action below. The appellants enumerate as error the general grounds and the trial court’s direction of a verdict at the close of their evidence. Held:

1. No trial transcript was filed with this court because the proceeding was not reported. The parties have filed in lieu of a transcript, however, a “Stipulation of Case” prepared pursuant to OCGA § 5-6-41 (i). Scrutiny of this document reveals that each of the parties made a series of statements from the witness stand, some of which are in general agreement with the statements of the other party and others of which differ widely. The chief issue appears to be whether the plaintiffs/appellants were employees of defendant/appellee, as they contend; or whether, as appellee argues, each of the appellants, as well as appellee himself, was working as an independent contractor. The statements reveal that, although appellee physically received the bid sheet from the owner of the house, all of the parties discussed it and together arrived at the proposed price for the job; that all inspected the job site; that all of them discussed the project with the owner; that there was no agreement as to what the hourly, daily, or weekly pay of each was to be, but that it was agreed that the monies left over after supplies, etc., had been paid for was to be divided among the group in an agreed-upon manner; and that at the time the contract was terminated by the owner, each plaintiff received from the owner a payment of approximately $1,000, a sum at the “low end” of the range that they had estimated that each would clear upon completion of the job. (The work was 90 percent completed when the owner terminated the contract.)

At the close of plaintiffs/appellants’ evidence the trial court granted defendant/appellee’s motion for directed verdict as to all plaintiffs, citing novation as the legal theory upon which the verdict was based. Our scrutiny of the stipulation reveals no error of law in the proceedings. Moreover, although superficially the evidence was far from harmonious, there was sufficient competent evidence to authorize the trial court to conclude that there existed no genuine conflict as to any material issue. OCGA § 9-11-50 (a). Appellants’ second and third enumerations therefore have no merit. It is well settled that the appellate court assesses only the sufficiency of the evidence, not its weight. Anfield v. State, 188 Ga. App. 345 (373 SE2d 51) (1988). Consequently, the fourth enumeration is also without merit.

Decided January 24, 1990

Rehearing denied February 5, 1990

David G. Kopp, for appellants.

Roosevelt Warren, for appellee.

2. As to appellants’ first enumeration, it follows from our discussion in Division 1 that there was no error in the trial court’s directing a verdict for appellee. OCGA § 9-11-50 (a). One who urges error must prove it by the record, In re Holly, 188 Ga. App. 202 (372 SE2d 479) (1988), and the account of the proceedings below is couched in such terms as to fall short of demonstrating the occurrence of any error. “We must take our evidence from the record and not from the brief.” Blue v. R. L. Glosson Contracting Co., 173 Ga. App. 622, 623 (327 SE2d 582) (1985). Plaintiifs/appellants have failed to carry their burden of affirmatively showing error by the record, and the judgment below must therefore be affirmed. Craigmiles v. Craigmiles, 237 Ga. 498 (228 SE2d 882) (1976). See also Williams v. State, 183 Ga. App. 373 (358 SE2d 914) (1987).

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A89A0767.
    THORNE v. PADGETT.
    (392 SE2d 576)
    Decided February 5, 1990.

      Lillian Moy, Vicky O. Kimbrell, for appellant.

      Bips & Bips, R. Andrew Bips, for appellee.
   Deen, Presiding Judge.

The decision of the Court of Appeals in this case having béen reversed by the Supreme Court, Thorne v. Padgett, 259 Ga. 650 (386 SE2d 155) (1989), our decision in Thorne v. Padgett, 191 Ga. App. 814 (383 SE2d 160) (1989), is hereby vacated and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed.

Birdsong and Cooper, JJ., concur.


author: Beasley, Judge.

text:
    A89A1610.
    BOWENS v. THE STATE.
    (390 SE2d 634)
   Beasley, Judge.

Bowens was indicted for the murder of his wife. OCGA § 16-5-1. Three days before scheduled trial, he pled guilty to the lesser included offense of voluntary manslaughter, OCGA § 16-5-2 (a), under authority of North Carolina v. Alford, 400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970), and was sentenced to twenty years incarceration with credit for time served. He had the assistance of retained counsel but subsequently retained new counsel and within the same term of court moved to withdraw the guilty plea as not having been made intelligently or voluntarily. In the alternative, he moved to reduce the sentence. Bowens also filed a motion for new trial claiming the lack of evidence of guilt, in the existing record. The three motions were denied after a hearing at which Bowens’ former counsel and one of the two State’s prosecutors involved in the plea testified.

The appeal claims error in refusing to vacate the plea and grant the motion for new trial because the elements of the crime to which he was pleading were not explained to him, he did not know he was admitting intent to commit the crime but entered the plea hoping to receive a lesser sentence of fifteen years, and the record contained an inadequate factual basis for the plea.

1. “A defendant may withdraw his plea of guilty as a matter of right before sentence is pronounced. OCGA § 17-7-93. Even after sentencing, the trial court would have discretion to allow withdrawal of the plea prior to the expiration of that term of court. Right v. State, 158 Ga. App. 698, 699 (282 SE2d 176) (1981). After the term, the prescribed means to withdraw the plea would be through habeas corpus proceedings. State v. Right, 175 Ga. App. 65, 66 (1) (332 SE2d 363) (1985). It could not be raised through motion for new trial . . . because a defendant who files á guilty plea cannot move for a new trial since there has been no verdict. Stevens v. State, 169 Ga. App. 646, 647 (2) (314 SE2d 481) (1984).” Sanders v. State, 179 Ga. App. 168 (1) (345 SE2d 677) (1986). Bowens’ motion for new trial was inappropriate and the trial court correctly denied it.

2. Once a defendant raises the issue of intelligent and voluntary waiver with respect to his prior guilty plea, it is the burden of the State to establish a valid waiver. Pope v. State, 256 Ga. 195, 209-210 (17) (345 SE2d 831) (1986).

“Before accepting a plea of guilty, a trial court must determine that the plea is voluntarily made and that the defendant ‘ “intelligently and understanding^” ’ waives his constitutional rights, which requires a showing on the record that the defendant has freely and voluntarily entered the plea with an understanding of the nature of the charges against him and the consequences of his plea. [Cit.] When a defendant enters a plea of guilty and subsequently challenges the validity of the guilty plea, the State may meet its burden of demonstrating the plea was intelligently and voluntarily entered ‘ “by two means, (1) showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea; or (2) fill(ing) a silent record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary.” [Cit.]’ [Cit.]” Wood v. State, 190 Ga. App. 179, 180 (1) (378 SE2d 520) (1989). The State traveled both avenues.

The plea transcript shows that Bowens responded affirmatively that he was able to hear and understand the court’s questions; he was not then under the influence of any alcohol, drugs, or any other substance; he and his attorney had adequate time to talk with each other about the facts in the case, the charges against him, and what he was doing in court that day; his attorney discussed the possible penalties if he went to trial or if he entered his plea of guilty; he understood that if he went to trial he would come into court with the presumption of innocence in his favor and that if he entered the plea of guilty he would be giving up that presumption of innocence; he understood he would be giving up his right to a jury trial, his right not to incriminate himself, the right to question the witnesses in the case who were his accusers, and the right to bring any witnesses to testify in his behalf; no one, including the district attorney, his lawyer, or any police officer had made any threats or promises to influence him to plead guilty; he understood the district attorney had made a recommendation that he be allowed to plead guilty to the offense of voluntary manslaughter and that at that time he was entering a plea of guilty to that offense; he understood that the maximum sentence for voluntary manslaughter would be twenty years to serve and the minimum would be one year; he wished to plead guilty at that time; he understood he was entering the plea under Alford in that it was out of fear of greater punishment if he went to trial; he felt the facts of his case were such that if he went to trial he might receive a greater punishment and recommendation from the district attorney; he understood that the district attorney’s recommendation was that he be sentenced to twenty years to serve and that the court had stated that if he entered a plea of guilty under the circumstances, that would be his sentence in his case; he wished to enter the plea at that time with his attorney representing him; he was satisfied with the services and advice of his attorney; he understood that he had the right within thirty days from that date to file a petition with the “Judges’ ” Review Panel to have his sentence reduced, that the review panel could not raise his sentence, and that if he could not afford this or his attorney could not do this and if Bowens sent a written request, the court would appoint a public defender to submit the application for review; he understood all of the questions and had given the court truthful answers to each of them.

The State then narrated in detail what it believed the evidence at trial would show, which was in essence that Bowens encountered his wife driving his car and shot her because he was unhappy that she was out in his car at a time when she was not supposed to be. The gun was his own, and he left it at his grandmother’s house nearby, right after the shooting. Bowens’ counsel concurred with the State’s statement and stated that his client was entering the plea because Bowens felt the evidence was sufficient to convict him in a jury trial, but that he was not admitting he committed the act.

The court told Bowens that it was its intent to follow the district attorney’s recommendations and to give him credit for jail time. Bowens stated to the court the date of his arrest. The court asked Bowens if it was still his wish to plead guilty with the understanding that the sentence would be twenty years with credit for jail time. Bowens responded affirmatively and the court accepted the plea, specifically finding that it was made freely, understandingly, and voluntarily.

The plea transcript thus belies appellant’s contentions that his plea was not entered into intelligently and voluntarily. He expressly accepted the reduced charge and relinquished the rights he would have had at trial, knowing the sentence the court would impose. Counsel stated that appellant was not admitting the crime but was pleading guilt for the possibility of a reduced sentence under the authority of Alford.

The hearing on appellant’s motions also provides unequivocal evidence in support of the plea. Appellant, a thirty-two-year-old high school graduate, admitted going over the State’s evidence with his attorney on the day of the plea, understanding the meaning of a plea under Alford, and remembering the court’s questioning at the plea, including the court’s informing him that the court would follow the State’s recommendation of a twenty-year sentence. Counsel testified that prior to the plea, he and Bowens discussed in detail the nature of the evidence, the possibility of an Alford plea, and the elements of voluntary manslaughter and murder. Counsel further testified that when the plea was entered Bowens was aware of the State’s recommendation, understood the language, did not appear to be under the influence of alcohol, drugs, or other mind-altering substances, was aware of all the possible alternatives and what was at stake, that it was ultimately Bowens’ choice to enter the Alford guilty plea, and that he thought Bowens entered the plea freely and voluntarily.

Inasmuch as the extrinsic evidence as well as the plea colloquy, see Pope, supra, establish without material dispute the voluntariness of the plea, the trial court did not abuse its discretion in refusing to permit withdrawal of the plea or a reduction of sentence.

Decided February 5, 1990.

David S. Walker, Jr., for appellant.

Robert E. Wilson, District Attorney, Robert M. Coker, Shawn Lagrua, R. Stephen Roberts, Assistant District Attorneys, for appellee.

Judgments affirmed.

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


text:
    A89A1755.
    EVANS v. GREEN et al.
    (391 SE2d 11)
   Beasley, Judge.

Evans appeals the dismissal of his complaint alleging violations of 42 USCA § 1983 against Warden Green, Lt. Gibbs, and Officers Milner, Butts, and Harrison, all members of the staif at the institution where Evans was incarcerated.

Evans alleged that he was subjected to slave labor in violation of the federal Eighth Amendment, discriminated against because of his race, and that he was beaten when he objected to receiving correspondence which was partially opened.

The court conducted a hearing pursuant to 28 USC § 1915 and issued a lengthy and detailed order dismissing the complaint as frivolous.

“Under 28 USCA § 1915 (d), a trial court may dismiss a case if it is ‘satisfied that the action is frivolous or malicious.’ The dismissal of a frivolous action is appropriate to prevent an abuse of process. Brown v. Pena, 441 FSupp. 1382 (S. D. Fla. 1977), aff’d without opinion, 589 F2d 1113 (5th Cir. 1979). ‘(T)he standard for determining the legal sufficiency of a complaint is the same under either Fed. R. Civ. P. 12 or 28 USC § 1915 (d). (Cits).’ Spears v. McCotter, 766 F2d 179, 182 (5th Cir. 1985). Therefore, the dismissal of a lawsuit as frivolous is appropriate where the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See Fed. R. Civ. P. 12. Cf. Estelle v. Gamble, 429 U. S. 97, 106 (97 SC 285, 50 LE2d 251) (1976).” Brown v. Diaz, 184 Ga. App. 409, 410 (3) (361 SE2d 490) (1987).

The hearing on Evans’ complaint was not taken down. Under these circumstances, we assume that the trial court’s findings and rulings arising therefrom were appropriate. Baugh v. Robinson, 179 Ga. App. 571, 572 (346 SE2d 918) (1986); Gaskins v. Fowler, 171 Ga. App. 681, 682 (2) (320 SE2d 890) (1984); York v. Miller, 168 Ga. App. 849, 850 (310 SE2d 577) (1983).

Decided February 5, 1990.

William Evans, pro se.

Michael J. Bowers, Attorney General, William B. Hill, Jr., Deputy Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Neal B. Childers, Assistant Attorney General, for appellees.

The only claim of Evans arguably supported by factual allegations involved his alleged beating after complaining that a letter had been partially opened. The court’s order reflects that Evans and his witness were not credible on this issue. This was an appropriate task for the court in determining the § 1915 issue. Harris v. Menendez, 817 F2d 737 (11th Cir. 1987). We are bound by this determination absent an abuse of discretion and we find none. Ibid.

Judgment affirmed.

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


text:
    A89A1765.
    ANDERSON v. THE STATE.
    (390 SE2d 637)
   Beasley, Judge.

Defendant appeals her sentence for speeding, urging that the trial court erred by refusing to permit withdrawal of her-guilty plea after sentence was pronounced.

OCGA § 17-7-93 (b) grants defendant an absolute right to withdraw a guilty plea “before judgment is pronounced.” Orally announcing the sentence constitutes a pronouncement under that code section. Coleman v. State, 256 Ga. 77, 78 (1) (343 SE2d 695) (1986); State v. Germany, 246 Ga. 455 (271 SE2d 851) (1980). “After pronouncement of sentence, a ruling on a motion to withdraw a plea of guilty is within the discretion of the trial court and will not be disturbed on appeal absent a manifest abuse of such discretion.” Betancourt v. State, 177 Ga. App. 738, 740 (341 SE2d 239) (1986).

At the time defendant offered her guilty plea, the trial court, by means of a plea statement, informed her of her rights and questioned defendant as to her understanding of the charges against her and the consequences of her plea. However, the court was not told that defendant contended the State had agreed to make a certain sentence recommendation. The court indicated that defendant would be sentenced after she was tried on another related charge. After that trial, in which defendant was acquitted, the court pronounced the sentence for speeding: one year’s probation, a $400 fine and 40 hours of community service. Again, no mention was made concerning a negotiated plea.

Decided February 5, 1990.

James W. Bradley, for appellant.

Keith Martin, Solicitor, Jackie N. Stanton, Assistant Solicitor, for appellee.

The following day, defense counsel sought to withdraw the guilty plea for the reason that the State had offered to recommend a $100 fine if she pled guilty. The trial court denied the motion, finding that defendant had failed to inform the court about the plea bargain on the two prior occasions and that defendant had been warned that in passing sentence the trial court would not be bound by any State recommendation as to sentence.

Germany, supra at 456, held that when a plea is offered, “the trial court shall, on the record, require the disclosure of any plea agreement which has been reached by the state and defendant.” Germany furthermore mandated that if the court intended to reject the plea agreement it must inform defendant: “(1) the trial court is not bound by any plea agreement, (2) the trial court intends to reject the plea agreement presently before it, (3) the disposition of the present case may be less favorable to the defendant than that contemplated by the plea agreement, and (4) that the defendant may then withdraw his or her guilty plea as a matter of right.” Accord Gordon v. State, 190 Ga. App. 414 (2) (379 SE2d 221) (1989).

Germany places the burden squarely upon the trial court to inquire if there is an outstanding plea agreement and, if there is one, to advise defendant of the four requisite factors.

On the day the trial court accepted defendant’s guilty plea to the charge of speeding, defendant and her counsel executed a document which recited: “that if I plead ‘guilty’... to the charges against me, I give up all rights guaranteed to me and the court may sentence me to the same punishment as if I pled ‘not guilty’ ” and was convicted; “that the punishment which the law provides . . . is up to 12 months imprisonment and up to a $1,000.00 fine”; “I declare that no one has made any promise of any kind to me, or within my knowledge to anyone else, that I will receive a lesser sentence, or probation, or any other form of leniency if I plead guilty.” This constituted compliance with the Germany, supra, requirement that the court ascertain if any plea agreement was reached by the State and defendant. Moreover, defendant should not be permitted to disavow the statement without a showing demonstrating a good reason to disregard it, which was not here made.

Judgment affirmed.

Car ley, C. J., and McMurray, P. J., concur.


text:
    A89A1820.
    DUE WEST ASSOCIATES, INC. v. RENFROE MINING & GRADING COMPANY, INC.
    (391 SE2d 13)
   Beasley, Judge.

The trial court refused to set aside a default judgment, on the ground of insufficient service of process, which had been entered in favor of plaintiff Renfroe. The question on appeal is whether the trial court erred as a matter of law in finding as fact that the person who accepted service for the corporation was at that time the secretary/ treasurer and managing agent. Service upon him in either capacity would fulfill the requirement. OCGA § 9-11-4 (d).

When a question of fact must be resolved in order to determine the validity of a claim of insufficient service which is the basis for a motion to set aside under OCGA § 9-11-60 (d), the trial court is the factfinder. Power v. Mobley, 170 Ga. App. 167, 168 (1) (316 SE2d 580) (1984). The challenger’s burden is heavy, as “[t]he return can be set aside only ‘upon evidence which is not only clear and convincing, but the strongest of which the nature of the case will admit.’ [Cits.].” Norman Svc. Indus. v. Lusty, 168 Ga. App. 164, 165 (1) (308 SE2d 411) (1983). The appellate court must uphold the findings unless they are clearly erroneous or are not supported by the evidence. Northwestern Nat. Ins. Co. v. Kennesaw Transp., 168 Ga. App. 701, 703 (309 SE2d 917) (1983).

The court based its finding on two underlying facts. One was that the General Corporate Information Database maintained by the Georgia Secretary of State listed the person as the secretary/treasurer. The other was that the person served told the process server, according to the latter’s affidavit, that he was an officer and could accept service.

Defendant Due West claims that there is uncontradicted evidence that the person served had resigned earlier as officer and employee, so that it was established fact that he was not an actual agent, and that the court was bound to so find. It attacks the findings relied on by the trial court as being legally defective.

The court regarded the database information as reliable evidence that the person was the stated officer when served, citing OCGA § 14-2-6 (a). That section was changed in 1988 and now appears as OCGA § 14-2-127: “A certificate attached to a copy of a document filed by the Secretary of State, bearing his signature, which may be in facsimile, and the printed or embossed seal of this state is prima-facie evidence that the original document has been filed with the Secretary of State.” Thus there was some evidence that the person served was the officer at the time the corporate annual report was made in accordance with OCGA § 14-2-1622. It does not follow that he was an officer on October 23, 1987, when served. There was no evidence of this alleged fact. Since corporations are not required to keep the registration information current if changes in personnel are made during the year, it cannot be inferred that because the person was secretary/treasurer when the annual report was filed, he still held that office on October 20 or 23.

Decided February 5, 1990.

Alston & Bird, G. Conley Ingram, Peter M. Degnan, John E. Stephenson, Jr., for appellant.

Robert E. Flournoy III, for appellee.

The court also considered as evidence the process server’s affidavit which stated that Kyle “told [the process server] he was an officer of that Corporation and that he could accept service of the Complaint.” Based on this, the court found that Kyle identified himself as an officer and as the managing agent in charge of the office and stated he could accept service. First, the extrapolation of fact is not supported by the affidavit. Second, the hearsay is not admissible. News-Press Pub. Co. v. Ralle, 173 Ga, App. 411 (1) (326 SE2d 582) (1985).

As in that case, Kyle by affidavit denied both that, at the time of service, he held office and was an agent. The corporation also submitted evidence that Kyle had tendered his resignation on September 15, 1986, that he was not installed as an officer or director as of June 19, 1987, and that he was at the time of service employed by another corporation which shared office space with defendant. This evidence in support of the motion was not met with any admissible evidence to the contrary upon which the court could base a finding that an actual agent of defendant was served. The law requires service upon such a person, News-Press Pub. Co., supra, if the registered agent is not served or substitute service is not utilized, as provided by OCGA §§ 9-11-4 (d) and 14-2-504.

Judgment reversed.

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