text:
    10066.
    Harris v. The State.
   Broyles, P. J.

1. Each ground of the motion for a new trial must be complete within itself. The first ground of'the amendment to the motion for a new trial complains of the court’s refusal to rule out the following testimony of a named witness: “We went to Sam Harris’s house together, we were at his home. I found in his kitchen 12 or 15 cases of canned syrup, about 12 gallons to the case, and 15 sacks, of two bushels to the sack, of meal.” This testimony was objected to on the ground that it was illegal because the witness had no search-warrant to search the defendant Harris’s premises. It is not shown, though, in this ground of the motion, that the witness did not have such a warrant. Accordingly this ground raises no question for adjudication by this court. However, if such fact had been shown, the evidence, under the rulings in Duren v. Thomasville, 125 Ga. 1 (53 S. E. 814), Smith v. State, 17 Ga. App. 693 (88 S. E. 42), and Calhoun v. State, 17 Ga. App. 705 (88 S. E. 586), was admissible.

2. When considered in the light of the charge of the court as,,a whole and the facts of the ease, the excerpt from the charge, complained of in the 2d ground of the amendment to the motion for a new trial, while somewhat confusing and not entirely accurate, does not require a new trial.

Decided November 1, 1918.

Indictment for manufacture of intoxicating liquor; from Bibb , superior courts Judge Mathews. July 29, 1918.

John B. Cooper, E. W. Butter, for plaintiff in error.

John P. Boss, solicitor-general, contra.

3. The remaining special ground of the motion for a new trial is virtually abandoned in the brief of counsel for the plaintiff in error, and therefore will not be considered.

4. The conviction was authorized by the evidence, and the court did not err in refusing to grant a new trial.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


source: Caselaw Access Project

author: Bloodworth, J.

license: Public Domain

text:
    10067.
    Edwards v. The State.
    Decided November 1, 1918.
    Indictment for larceny of cotton; from Grady superior court— Judge Harrell. August 7, 1918.

      W. T. Crawford, W. V. Custer, for plaintiff in error.

      B. C. Bell, solicitor-general, 8. P. Cain, F. A. Hooper, contra.
   Bloodworth, J.

1. The demurrer to the indictment was properly overruled. The crime charged was designated in the indictment as “simple larceny, a felony.” The criminal act charged in the indictment was the larceny of a bale of cotton. “The name given to it, in the bill of indictment, does not characterize the offense; the description characterizes it.” O’Halloran v. State, 31 Ga. 206; Camp v. State, 3 Ga. 417 (2); Sneed v. State, 16 Ga. App. 351 (85 S. E. 354); Lummus v. State, 17 Ga. App. 414 (87 S. E. 147).

2. The grounds of the amendment to the motion show no error, the evidence is sufficient to support the verdict, and the judgment is

Affirmed.

Broyles, P. J., and Harwell, J., concur.


text:
    10079.
    Cæsar v. The State.
   Bloodworth, J.

1. “Under repeated rulings of this court and of the Supreme Court, a ground of a motion for a new trial must be complete in itself. When it is so incomplete as to require this court to refer to the pleadings or to the brief of evidence, it will not be considered.” Bridges v. Griffin, 20 Ga. App. 598 (2), 599 (93 S. E. 170). See also Copeland v. Ruff, 20 Ga. App. 217 (2) (92 S. E. 955); Head v. State, 144 Ga. 383 (87 S. E. 273); Smiley v. Smiley, 144 Ga. 546 (2) (87 S. E. 668). Under the rulings in these cases none of the special grounds oí the motion for new trial in this ease can be considered by ' this court. Each ground refers to some road, but fails to show whether it is the road mentioned in the indictment, and this can not be determined without reference to other parts of the record, i

Decided November 1, 1918.

Indictment for misdemeanor; from Colquitt superior court— Judge Thomas. íuly 16, 1918.

Parker & Gibson> for plaintiff in error.

Clifford E. Hay, solicitor-general, contra.

2. There is ample evidence to support the verdict.

Judgment affirmed.

Broyles, P. J., and Harwell, J., conctvr.


author: Broyles, P. J.

text:
    10090.
    Gray v. The State.
    Decided November 1, 1918.
    Indictment for assault with intent to murder; from Toombs superior court—Judge Hardeman. June 25, 1918.

      Williams & Corbitt, for plaintiff in error.

      Walter F. Gray, solicitor-general, contra.
   Broyles, P. J.

The only point argued in the brief of counsel for the plaintiff in error is that the court erred in overruling the defendant’s motion for a continuance on account, of absent witnesses. The proceedings upon the hearing of the motion are reported in extenso in the record, and it does not affirmatively appear that the trial judge abused his wide discretion in overruling the motion. '

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9380.
    Moore v. The State.
   Broyles, P. J.

1. “Under section 924 of the Civil Code, every dealer in automobiles is required to pay one tax in each county in which he operates.” Moore v. State, 148 Ga. 457 (97 S. E. 76).

2. “An employee of a dealer in automobiles, working for a salary, is guilty of a misdemeanor, under sections 978 of the Civil Code and 469 of the Penal Code, where he solicits sales for the dealer in a county where the tax required of the dealer has not been paid, and the dealer has not registered as provided by law.” Moore v. State, supra.

3. Where a dealer in automobiles has registered as provided by law, and paid the required tax, in a certain county, any number of his employees can solicit sales for him in such county without paying any other tax. The tax is required from the dealer only, and not from his employees. Moore v. State, supra.

Decided November 7, 1918.

Indictment for misdemeanor; from Houston superior court— Judge Mathews. November 7, 1918.

The indictment charged that on July 2, 1917, in Houston county, the defendant “did ' . . unlawfully deal in and act as agent o.f a dealer in automobiles, and solicit orders for the sale of automobiles and other self-propelling vehicles, and failed to register with the ordinary of said county as required by law, and failed to pay the special tax as required by law.” The accused was convicted, and the case came to. the Court of Appeals on exceptions to the overruling of his motion for a new trial. This court certified to the Supreme Court the following question: “Under the facts stated below is the defendant guilty of a misdemeanor? An automobile dealer has his only place of business in Bibb county. He has duly paid to the tax-collector of that'county the special tax required under section 924, of the Political Code (1910), and has duly registered before the ordinary of that county as required by section 978 of the Political Code. He sends the defendant (an employee, who receives no commissions nor any part of the profits of the business, but only a fixed salary of $75 per month, as a salesman) into Houston county, to solicit orders for the sale of . automobiles in which 'he (the employer) is a dealer. The defendant solicits and obtains orders in Houston countysfor the sale of sjich. automobiles, and'some sales to citizens of that county are actually consummated. Neither the dealer nor the employee has any place of business in Houston county. Neither the dealer nor the employee had registered in Houston county, or paid the special tax to the tax-collector of that county. Is the employee. guilty of a misdemeanor under section 978 [supra], and section 469 of the Penal Code?” Paragraphs 1 and 2 of the decision of the Court of Appeals are taken from the instructions of thé Supreme Court in answer to this question.

Walter DeFore, James 0. Estes, for plaintiff in error.

John P. Boss, solicitor-general, contra.

4. Any holding in Dobbs v. State, 8 Ga. App. 731 (70 S. E. 101), which may be contrary to the above ruling, is, on review thereof, overruled.

5. Under these rulings the defendant’s conviction was demanded by the evidence, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Bloodworth and Harwell, ,J-J., concur.


text:
    9629.
    Covington v. Rosenbusch.
    Decided November 7, 1918.
    Certiorari; from Fulton superior court—Judge Pendleton. November 27, 1918.
    A. A. Owens, L. H. Foster, T-. J. Ripley, for plaintiff in error.

      R. R. Jackson, contra.
   Broyles, P. J.

1. “Where an employee, in good faith and for a valuable • consideration, sells, transfers, and assigns his title and right to possession of a stipulated amount of salary due him by his employer,. and thereafter’ collects the money thus transferred, he can not, as against a suit for the recovery of the money, avail himself of a discharge in bankruptcy as a defense. The instrument of transfer is an assignment of title. Central of Ga. Ry. Co. v. King, 137 Ga. 369 (73 S. E. 632). One who thus disposes of property without the authority of its owner, under the ruling in McIntyre v. Kavanaugh, 242 U. S. 138 (37 Sup. Ct. 38, 61 L. ed. 205), is'guilty of a wilful and malicious injury to property, within the meaning of the bankruptcy act, see. 17 (2), as amended by the act of February 5, 1903 (32 Stat. 798, U. S. Comp. St. 1916, § 9601); and consequently his liability is hot released by a discharge in bankruptcy.” Covington v. Rosenbusch, 148 Ga. 459 (96 S. E. 78).

2. Any holding in Glasco v. Cooper, 17 Ga. App. 690 (87 S. E. 1095, or Stovall v. Coker, 18 Ga. App. 126 (88 S. E. 907), which may be contrary to this ruling^ is, on review, overruled.

3. Under the ruling stated above, the court did not err in overruling the certiorari.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


author: Harwell, J.

text:
    9632.
    O’Halloran v. The State.
    Decided November 7, 1918.
   Harwell, J.

1. The excerpts from the charge of the court, complained of in the 1st, 2d and 3d special grounds of the motion for a new trial, standing alone and isolated from the body of .the charge, are subject to criticism, but when'the charge of the court is read in its entirety it can not be said that the instructions therein, as a whole, permitted the jury to find the defendant guilty upon their own belief, or from facts or knowledge “outside of the testimony and the defendant’s statement in the ease.” The excerpts complained of in grounds 4 and 5, when viewed in the light of the entire charge could not have misled the jury. The charge was very full and in' all respects fair to the accused. See Timmons v. State, 14 Ga. App. 802 (6), 803 (82 S. E. 378).

2. The evidence authorized the verdict and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., concur.

Indictment for violation of prohibition law; from Muscogee superior court—Judge Howard. March 9, 1918. ■

In .the instructions set out in the 1st, 2d and 3d special grounds of the motion for a new trial the court used the expressions, “if you should believe,” and “if you should believe beyond a reasonable doubt,” without adding the words, “from the evidence.” This is complained of in each of these grounds.

George G. Palmer, McGutchen & Bowden, for plaintiff in error.

G. F. McLaughlin, solicitor-general, contra.


text:
    9658.
    Vance v. The State.
    Decided November 7, 1918.
    Accusation of larceny from house; from city court of Houston county—Judge Riley. March 18, 1918.
    From the evidence it appeared that cottonseed of the kind known as “pull not” seed were stolen from Hodge’s gin-house on Wednesday night, February 13, and cottonseed of the same kind were found on the ensuing Friday where the defendant lived, about four and a half miles from Hodge’s gin-house. Cottonseed had been missed from the same gin-house about ten days before that time. The total amount stolen was about 35 bushels. Several sacks of cottonseed of the “pull not” variety were found in the defendant’s smoke-house, some of the same kind were found in his cotton-house, and some were on the floor of his buggy, on the seat and on the back. When the seed in the buggy were discovered he was asked why they were there, and he replied that he .did not know, ■ that some enemy of his had put them there, that his brother, was mad with him and might have put them there to give him trouble; but about two hours later, at the commitment trial, he stated that the waste cottonseed in the buggy were from seed he had fed to his cow; that he had placed in the buggy the bucket, containing the seed, to keep the hogs from getting them^ and some of them were spilled in the buggy. In his statement at the final trial he said that when asked what the seed were doing in the buggy he did not know what to say, and replied as stated above, but when he had time to think, about two hours later, he remembered and gave the explanation at the commitment trial as stated by the witnesses. íhe prosecutor testified that he could, not say that the seed found at the defendant’s place were seed stolen from the gin-house, but they were like those seed; the “pull not” variety had been planted by several farmers in the community. It was testified that the defendant grew “pull not” cotton, that he had “a good big patch, . . seven or eight acres,” and that “some time before Christmas” he offered to trade three sacks of “pull not” cottonseed which the witness saw at his gin-house. A witness testified that on the night on which the cottonseed were stolen he saw a mule and buggy driven on the plantation road leading from the main public road towards Hodge’s gin-house; it was a dark night and the curtains of the buggy were up, and the witness could not tell who was in the buggy, but the mule looked like the defendant’s mule; his only reason for thinking this was the size of the mule. Another witness testified that he lived on the Hodge place, and that within about three weeks prior to February 13 the defendant came to his house ^on three nights, about eight or nine .o’clock; that on the first night the defendant inquired if the witness had syrup to sell, but did not then'buy any syrup, that the defendant bought a half-gallon of syrup from him on the next visit, and bought a gallon on the third visit; that on the Saturday preceding the 13th of February he told the defendant not to come to his house at night, that Mr. Hodge had been missing cottonseed, and the defendant’s coming to his house at night might get them into trouble; the defendant did not reply to this, but did not again come to the house of the witness. 1 '
   Harwell, J.

“The circumstances relied upon to support the verdict, weighed most strongly against the accused, are not incriminatory in character, and are only sufficient to raise a suspicion of guilt; and suspicion alone, however Strong and apparently well founded, has no probative value as evidence, "'and a verdict thereon, without more, is contrary to law.” Mathis v. State, 10 Ga. App. 77 (72 S. E. 526). The defendant was charged jvith the theft of twenty-five bushels of cottonseed from a certain gin-house. The evidence tending to connect him with the offense was wholly circumstantial, and insufficient to exclude every reasonable hypothesis save that of his guilt. Accordingly the court en-ed in overruling the motion for a new trial.

Judgment reversed.

Broyles, P. J., and Bloodworih, J., concur.

G. E. Brunson, for plaintiff in error.

B. E. Brown, solicitor, contra.


text:
    9680.
    Davis et al. v. The State.
    Decided November 7, 1918.
    Indictment for robbery; from Spalding superior court—Judge Searcy. March 16, 1918.
    The ground referred to in .paragraph 1 of the decision is as follows: “Because movant contends the verdict of the jury did not speak the sentiment and conviction of the entire jury, because the jury was dismissed for a while by the court after the reading of the verdict, before the defendant’s counsel had an opportunity to poll the jury.” The trial judge’s note as to this ground is as follows: “No request was made at the time the verdict was returned, or at any time, to poll the jury; counsel for defendants being present in court, and the defendants also, at the time the verdict was returned.”

      W. H. Connor, for plaintiffs in error.

      E. M. Owen, solicitor-general, contra.
   Harwell, J.

1. In the light of the qualifying note of the trial judge no merit appears in the ground of the motion for a new trial relating to the polling ofs the jury.

2. The 3d special ground of the motion for a new trial is incomplete. It is as follows: “Because, movant contends, the second charge by the court, without request by the jury, after the judge had ordered the jury brought into the court-room and asked in open court if there was a question of law or fact that prevented the jury, from arriving at a verdict, and because tile judge asked the jury how they stood in numbers, and being -told by the foreman that the jury stood ten to two, that the remarks to the jury by the court were prejudicial to the defendants,” etc. This ground does not set forth the alleged'improper remarks of the court, and this court wili not look to other portions of the record for these remarks. Each ground of a motion must be complete in itself, as this court and the Supreme Court have often held. There was no error in the trial judge asking the jury how they stood. See Dalton Fruit & Produce Co. v. Puryear, 22 Ga. App. 489 (96 S. E. 344), and citations.

3. The accused were charged with robbery from the person (the sudden snatching and taking away of money) ; the evidence amply authorized the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, P. J., and Blóodworih, J., concur.


author: Blackburn, Judge.

text:
    A95A2501.
    BEVIL v. THE STATE.
    (467 SE2d 586)
   Blackburn, Judge.

Following a jury trial, the appellant, William Scott Bevil, was convicted of two counts of child molestation and two counts of aggravated child molestation. His motion for new trial was denied, and he now appeals.

1. In his first enumeration of error, Bevil contends he should have been granted a new trial because the verdict was not supported by the evidence. “However, this court passes only on the sufficiency of the evidence, not its weight. Sheats v. State, 210 Ga. App. 622, 623 (2) (436 SE2d 796) (1993).” Brown v. State, 214 Ga. App. 838 (449 SE2d 538) (1994). The victim graphically testified as to Bevil’s illegal sexual contact with him. Other evidence established that these incidents occurred in DeKalb County when the victim was under the age of 14. Viewed in a light most favorable to support the verdict, a rational trier of fact was clearly authorized to find Bevil guilty beyond a reasonable doubt of the offenses of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In his second and third enumerations of error, Bevil contends that the verdict was a nullity in that the jury was never administered an oath in accordance with OCGA § 15-12-139. We disagree.

Once the parties discovered that the jury’s swearing in had not been made a part of the record, Bevil’s trial counsel stipulated to the fact that the jury had been sworn in and the stipulation should be made a part of the record. Despite his stipulation, trial counsel, at a subsequent post-trial hearing, testified that he could not recall whether the jury had been sworn or not. All presumptions are in favor of upholding the verdict and the record affirmatively shows that the oath was administered, albeit by stipulation. Accordingly, we deem these enumerations of error to be without merit.

3. In his fourth enumeration of error, Bevil contends that the trial court erred by admitting certain photographs into evidence showing the victim and himself together at family functions. He argues that such photographs were inadmissible for lack of proper foundation, inaccuracy in depicting the scenes portrayed, and irrelevance.

However, the record reflects irrelevancy was the only objection raised at trial. “If counsel desires to preserve an objection upon a specific point for appeal, the objection must be made at trial upon that specific ground.” (Citations and punctuation omitted.) Norman v. State, 197 Ga. App. 333, 334 (398 SE2d 395) (1990). Any error in admitting photographs that depicted Bevil’s warm personal relationship with the victim and his family was harmless in that Bevil conceded such relationship at trial.

4. In his fifth enumeration of error, Bevil contends that the trial court erred in excluding as irrelevant his cross-examination of the victim as to a conversation the victim had with his psychologist concerning homosexuality. The record shows that the victim testified out of the presence of the jury that he had discussed his brother’s hatred for homosexuals, not his own. Absent a manifest abuse of discretion, a trial court’s refusal to admit evidence on grounds of lack of relevance will not be disturbed on appeal, Chapman v. State, 215 Ga. App. 340, 341 (449 SE2d 903) (1994), and we decline to do so here. In any event, former counsel for Bevil withdrew the offending question, rendering the issue moot on appeal.

5. In his sixth enumeration of error, Bevil contends that the trial court erred by allowing a detective to testify about the capacity of child victims to specifically recall the dates when offenses against them took place. The detective testified that it was not unusual for child victims of multiple offenses to be unable to recall the exact dates on which such offenses occurred. The record reveals that the detective had 17 years experience in law enforcement, particularly in investigating sex offenses. He was trained in the techniques associated with interviewing the victims of such offenses, particularly children. In light of the detective’s considerable, experience, the trial court did not abuse its discretion in permitting him to testify as an expert witness. Fatora v. State, 185 Ga. App. 15, 19 (363 SE2d 566) (1987) (whether a witness may testify as an expert is a question for the sound discretion of the trial court and, absent abuse, will not be disturbed).

6. By his eighth and ninth enumerations of error, Bevil contends that the trial judge erred by failing to recuse himself before the trial began. After the verdict was rendered the trial judge recused himself from the sentencing phase.

OCGA § 15-1-8 pertinently provides that a judge shall not sit in any case in which he has a pecuniary interest, a familial relationship with a party, or in any case in which he previously served as counsel or judge. “ ‘The grounds for recusal in [OCGA] § 15-1-8 are exclusive and exhaustive, and courts may not add other grounds of disqualification to those stated in the statute. [Cits.]’ ” Johnson v. State, 208 Ga. App. 453, 454 (430 SE2d 821) (1993). None of these circumstances is applicable in the instant case.

Further authority indicates that a trial judge should be disqualified for bias against a party, if such bias “stemfs] from an extra-judicial source and result [s] in an opinion on the merits on some basis other than what the judge learned from his participation in the case. The alleged bias of the judge must be of such a nature and intensity to prevent the defendant from obtaining a trial uninfluenced by the court’s prejudgment.” (Citations and punctuation omitted.) Birt v. State, 256 Ga. 483, 485-486 (350 SE2d 241) (1986). There is no evidence of this in the record. Further, new counsel for Bevil declined the trial judge’s offer to recuse himself from hearing Bevil’s motion for a new trial which was grounded upon the trial judge’s failure to recuse himself from the trial of the case on the merits. Accordingly, we deem this enumeration of error to be without merit.

7. In enumerations of error 10 through 39, Bevil contends that he was denied effective assistance of counsel. Citing Cochran v. State, 262 Ga. 106 (414 SE2d 211) (1992), Bevil argues that pervasive evidence of ineffectiveness of counsel makes a particularized inquiry for prejudice under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), unnecessary. His claims of ineffectiveness, however, are not supported in the record.

(a) Bevil asserts that trial counsel erred in failing to present defenses of alibi at trial. However, the record reflects that the trial counsel did present the defense of alibi at trial. While such evidence reflected that Bevil was working in North Carolina in the period June 1988 to March 1990, it also indicated that he returned to Georgia periodically.

(b) Bevil contends that trial counsel was ineffective when he allowed part of voir dire to be conducted outside Bevil’s presence. The trial court, as did trial counsel, advised Bevil of his right to be present during the voir dire of certain of the members of the jury. He declined to do so. “A party will not be heard to complain of error induced by his own conduct.” (Citations and punctuation omitted.) Wells v. State, 212 Ga. App. 60, 62 (441 SE2d 460) (1994).

(c) Bevil claims generally that his trial counsel failed to prepare the case for trial, to interview witnesses, to read and examine medical reports, or to consult or subpoena psychological or psychiatric experts. He further asserts that trial counsel relied on the prosecutor’s open file policy in gathering information regarding possible witnesses and their statements. In this regard, trial counsel testified that he interviewed all defense witnesses prior to trial. While there had been witnesses which he did not interview before trial, he testified that he had not done so because he knew what the witnesses’ statements would be, having reviewed the State’s file and spoken with the prosecutor thereon. No testimony at trial surprised trial counsel. Trial counsel testified that he spoke with Bevil, in person or by telephone, once a week prior to trial; he met with him personally five to ten times; and he discussed Bevil’s testimony with him on many occasions. Although trial counsel recommended that a private investigator not be employed, Bevil concurred in that recommendation. Further, trial counsel testified that he did not read the medical reports contained in the State’s file in that he believed them to be illegible, privileged at trial, and irrelevant to his good character defense.

Bevil contends variously that trial counsel was ineffective for failure to challenge the admissibility of the State’s evidence. Trial counsel defended his failures to object to the admission of State evidence at trial as necessary to allow him to “employ every discrepancy in the prosecution’s case that we could develop” or to elicit sympathy for him. As to the latter, after discussing the matter with Bevil, trial counsel allowed the State’s expert witness as to child victims to testify that Bevil had told him he had been molested as a child in order to minimize potential damage to his good character defense if introduced by the State. While by his brief, Bevil characterizes his trial counsel’s trial strategy as “non-adversarial,” the record reveals the contrary. Bevil’s trial counsel filed pretrial discovery motions. He cross-examined the State’s witnesses, including an exhaustive cross-examination of the victim. He established that the victim continued to call Bevil after he decided to stop seeing the victim’s family; employing seven defense witnesses, he established Bevil’s good character.

“Generally, the burden is on the defendant claiming ineffectiveness of counsel to establish (1) his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous. In the absence of testimony to the contrary, counsel’s actions are presumed strategic. The decisions on which witnesses to call, whether and how to conduct cross-examina-

Decided January 9, 1996

Reconsideration denied January 24, 1996 —

Peevy & Lancaster, Donn M. Peevy, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Jeffrey H. Brickman, Assistant District Attorneys, for appellee.

tions, what jurors to accept or strike, what trial motions should be made, and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with the client.” (Citations and punctuation omitted.) Hudson v. State, 218 Ga. App. 671, 672 (462 SE2d 775) (1995).

In denying Bevil’s motion for new trial, the trial court found that “[Bevil] has not established that his trial counsel’s lack of independent investigation, trial strategy, or other conduct, rose to the level of harm authorizing a new trial.” We have reviewed Bevil’s claims of ineffective assistance and find the evidence of record insufficient as to require a finding that trial counsel’s performance was deficient or that the defense was prejudiced thereby. We must affirm the trial court’s finding that Bevil was afforded effective assistance of counsel because it is not clearly erroneous. That Bevil and present counsel would have proceeded differently does not establish the ineffectiveness of trial counsel. Hudson, supra. Accordingly, we deem this enumeration of error to be without merit.

8. In light of our disposition above, we need not reach the remaining enumerations of error.

Judgment affirmed.

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


author: Beasley, Chief Judge.

text:
    A94A0685.
    ROWLAND v. COLQUITT et al.
    (467 SE2d 613)
   Beasley, Chief Judge.

In Colquitt v. Rowland, 265 Ga. 905 (463 SE2d 491) (1995), the Supreme Court reversed the judgment of this Court in Rowland v. Colquitt, 214 Ga. App. 544 (448 SE2d 457) (1994). Therefore, our judgment in this appeal is vacated, and the judgment of the Supreme Court is made the judgment of this Court. Accordingly, the judgment of the trial court is affirmed.

Judgment affirmed.

McMurray, P. J., Birdsong, P. J., Pope, P. J., Andrews, Johnson, Blackburn, Smith and Ruffin, JJ., concur.

Decided January 24, 1996.

L. Chandler Vreeland, Jason R. Hasty, Gregg Loomis, for appellant.

Barksdale & Mobley, Steven J. Misner, Sharon L. Ware & Associates, Julie A. Taylor, Donald W. Osborne, S. Lee Storesund, for appellees.


text:
    A94A1398.
    GIRONE et al. v. CITY OF WINDER.
    (467 SE2d 612)
    Decided January 24, 1996.

      Love & Willingham, Robert P. Monyak, Jane L. Sams, for appellants.

      Smith, Currie & Hancock, Craig P. Siegenthaler, Dennis, Carry, Porter & Gray, R. Clay Porter, Ronald G. Polly, Jr., D. Jeffrey Grate, Mary P. Vilmos, for appellee.
   Beasley, Chief Judge.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court, City of Winder v. Girone, 265 Ga. 723 (462 SE2d 704) (1995), Divisions 1 and 2 of the decision in Girone v. City of Winder, 215 Ga. App. 822 (452 SE2d 794) (1994), are hereby vacated, and the judgment of the Supreme Court is made the judgment of this Court. Division 3 of our earlier opinion is unaffected by the Supreme Court’s decision.

Judgment reversed.

McMurray, P. J., Birdsong, P. J., Pope, P. J., Andrews, Johnson, Blackburn, Smith and Ruffin, JJ., concur.


text:
    A95A1470, A95A1471.
    HAYDEN et al. v. SIGARI et al.; and vice versa.
    (467 SE2d 590)
   Blackburn, Judge.

Mike and Hooshang Sigari d/b/a Eagle Machine (the Sigaris), commenced the underlying action against A. J. Hayden and A. J. Hayden & Company (Hayden), seeking damages for breach of two partnership agreements for the manufacture and marketing of the MegaVend and Impulse coin-operated machines. Hayden counterclaimed against the Sigaris for breach of the partnership agreements and wrongful dissolution thereof seeking, among other things, the return of his net capital contribution to the partnerships and a one-third share of net partnership profits as damages. After trial, judgment was entered upon the jury’s verdict in favor of the Sigaris in the amount of $69,939; which was comprised of $8,428 actual damages, $60,551 attorney fees, and $960 for the costs of a court-appointed special master. Hayden’s motion for j.n.o.v. or in the alternative for new trial was denied insofar as it sought to recover Hayden’s net capital contributions and his one-third share of the profits; however, the trial court granted the motion for j.n.o.v. as to the jury’s award of attorney fees to the Sigaris. Hayden appeals the trial court’s denial of his motion for j.n.o.v. and the Sigaris cross-appeal the trial court’s grant of Hayden’s motion for j.n.o.v. as to the jury’s award of attorney fees.

Case No. A95A1470

1. Hayden enumerates that the trial court erred by ruling as a matter of law that he was not entitled to recover his net capital contributions to the parties’ partnerships upon dissolution in contravention of the Uniform Partnership Act (UPA), OCGA § 14-8-1 et seq. In particular, Hayden correctly asserts that OCGA § 14-8-18 makes no distinction between capital (contributions treated as equity) and advances (contributions treated as a loan) in mandating that both such forms of contribution be returned to the partners upon dissolution; that OCGA § 14-8-40 sets out a statutory scheme for the distribution of partnership assets upon dissolution providing for the repayment of partner-provided advances and capital distributions pursuant to OCGA § 14-8-40 (1) and (2), respectively; and, citing Arford v. Blalock, 199 Ga. App. 434, 438 (405 SE2d 698) (1991) (cert. den.), aff'd sub nom., Wilensky v. Blalock, 262 Ga. 95 (414 SE2d 1) (1992), that OCGA § 14-8-38 allows innocent partners to share in future partnership profits in the event of wrongful dissolution. Noting that the foregoing sections of the UPA apply “subject to any agreement” between the partners, OCGA §§ 14-8-18 and 14-8-40, respectively, or “unless otherwise agreed by the partners,” OCGA § 14-8-38, Hayden argues that the trial court was bound to apply them in his favor because the MegaVend and Impulse partnership agreements are without any “agreement to the contrary” with respect to distributions upon dissolution.

The above-cited authorities clearly provide that the right of a partner to the return of capital contributed to a partnership is subject to any contrary agreement between the partners. “Where, as here, the language of a statute is plain and does not lead to any absurd or impracticable consequences, the court simply construes it according to its terms and conducts no further inquiry. Diefenderfer v. Pierce, 260 Ga. 426, 427 (396 SE2d 227) [(1990)].” Samay v. Som, 213 Ga. App. 812 (446 SE2d 230) (1994).

While neither of the partnership agreements made express provision for the disposition of partnership assets upon dissolution, in a section denominated “Equity and liability” both partnership agreements provided that “[a]ny equity and/or liability that may arise shall be shared equally as follows: A. J. Hayden 33.3%, Mike Sigari 33.3%, and Hooshang Sigari 33.3%.” (Emphasis supplied.) Treated separately in another section entitled “Initiation,” the agreements set out the start-up contributions the partners made to the partnerships. Hayden was called upon to provide seed money, and the Sigaris were to develop and manufacture the resulting machines. Reading these provisions together, we conclude, as the trial court did, that they limit returnable equity in the partnerships to profits realized upon the initial investments of the partners, but not more.

“The construction of a contract is a question of law for the court.” OCGA § 13-2-1. However, “where the terms of a written instrument are ambiguous, its meaning should be left to the jury. [Cit.]” Salvatori Corp. v. Rubin, 159 Ga. App. 369, 371-372 (283 SE2d 326) (1981). While the trial court erred to the extent that it asked two expert witnesses to give their opinions as to how the partnership agreements should be interpreted legally, such error was harmless. In this regard, the transcript reveals that the trial court questioned each witness outside the presence of the jury and only to confirm conclusions it had already reached on the evidence. After applying the applicable rules of contract construction, we find no ambiguity in the instant circumstances. Accordingly, the trial court correctly construed the contract as a question of law for the court, and its ruling was proper.

2. In his second and third enumerations of error Hayden contends that the trial court erred by denying his motion for j.n.o.v. regarding his claims for the return of his capital contributions to the partnerships and one-third share of the profits therein.

“ ‘A directed verdict (and [j.]n.o.v.) is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict. OCGA § 9-11-50 (a) (b).’ ” (Citation omitted; emphasis in original.) Southern Store &c. Co. v. Maddox, 195 Ga. App. 2, 3 (392 SE2d 268) (1990). The trial court properly ruled as a matter of law that Hayden was not entitled to the return of his capital contributions to the partnerships. See Division 1. The evidence did not demand a verdict for Hayden as to capital contributions, and the trial court properly denied the motion for j.n.o.v. in this regard.

Inasmuch as Hayden did not move for a directed verdict as to his entitlement to the return of his share of partnership profits, his motion for j.n.o.v. in this respect was not proper. Cf. Marett v. Professional Ins. Careers, 201 Ga. App. 178, 180 (410 SE2d 373) (1991). Accordingly, the trial court correctly denied Hayden’s motion for j.n.o.v. regarding his claim to a portion of the partnership profits.

3. In his fourth and fifth enumerations Hayden contends that the trial court erred by denying his motion for new trial in that the verdict was contrary to the law and the evidence. He argues that he was entitled by law to the return of his capital contributions and profits and that the evidence was insufficient to support the jury’s zero sum verdict for these alleged damages upon his counterclaim. .

“When a case comes before this court, after the refusal of a new trial by the presiding judge, it comes not only with the presumption in favor of the verdict, but also stamped with the approval of the judge who tried the case, and where no prejudice or bias or corrupt means in reaching the verdict appear, an appellate court is extremely reluctant to set it aside as being excessive. [Cit.]” Howard v. Howard, 150 Ga. App. 213, 214 (257 SE2d 336) (1979). We have concluded that the trial court properly ruled as a matter of law that Hayden was not entitled to the return of his capital contributions to the partnerships. See Division 1. The trial court charged the jury that Hayden was entitled to a one-third share of partnership profits subject to setoff of such other amounts as it determined to be owing to the Sigaris pursuant to the trial court’s instruction. Hayden did not object to the form of the verdict; as a consequence, we cannot now go behind it. Evans v. Maiuro, 170 Ga. App. 672, 673 (318 SE2d 69) (1984). If Hayden had been entitled to anything upon his counterclaim for capital contributions and one-third share of partnership profits, the jury must be presumed to have considered these and set them off against the award for the Sigaris. Id. Finding no legal error and evidence to support the jury’s verdict, we conclude that the trial court did not abuse its discretion by denying Hayden’s motion for new trial.

4. In his sixth enumeration of error Hayden contends that the trial court erred by asking his two expert witnesses to give their opinions as to the construction which should be given the partnership agreements. The transcript reveals that the trial court questioned each witness outside the presence of the jury to confirm conclusions it had already reached on the evidence. Further, Hayden requested that the trial court question the second expert witness and interposed no objection to the testimony of either. Assuming arguendo that the trial court erred in hearing the complained of testimony, in these circumstances there is no evidence of harm. In any event, inasmuch as Hayden did not object at trial to the testimony of which he now complains, he may not assert it for the first time on appeal. Pope v. Triangle Chem. Co., 157 Ga. App. 386 (277 SE2d 758) (1981). Accordingly, this enumeration of error is without merit.

5. In enumerations of error 7 through 10 Hayden contends that the trial court erred by failing to charge the jury as to OCGA §§ 14-8-18, 14-8-21 (a), 14-8-22, 14-8-24 and 14-8-26. Hayden may not complain of the trial court’s failure to charge with respect to OCGA § 14-8-22 due to his failure to timely object thereto before the jury returned its verdict. OCGA § 5-5-24 (a).

Hayden properly preserved claims of error with respect to the trial court’s failure to charge OCGA §§ 14-8-18 (1) and 14-8-21 (a), that generally provide the statutory basis upon which a partner’s capital contributions and profits may be returned. However, the trial court’s failure to give the requested charges on these Code sections was not error. A requested charge should be given “only where it embraces a correct and complete principle of law which has not been included in the general instructions given and where the request is pertinent and adjusted to the facts of the case.” Gates v. Southern R. Co., 118 Ga. App. 201, 204 (162 SE2d 893) (1968). Neither should a jury charge be given which is inapplicable to the facts. Todd v. State, 149 Ga. App. 574, 575 (254 SE2d 894) (1979). We have concluded that Hayden was not entitled to the return of his capital contributions to the partnerships. See Divisions 1 through 3. The trial court charged the jury that Hayden was entitled to the return of his share of partnership profits, calculated to the date the lawsuit was filed or to the date of its verdict in the event the jury determined that the partnerships were wrongfully dissolved. Additional jury charges as to OCGA §§ 14-8-18 and 14-8-21 (a) would not have been pertinent or applicable, and the failure to charge thereon was not error.

Likewise it was not error that the trial court did not charge relative to OCGA §§ 14-8-24 and 14-8-26. Hayden argues that the trial court’s failure to instruct in this regard foreclosed a jury award for damages upon the denial of his rights to partnership property as set out in these UPA sections. It is well settled, however, that where a party seeks damages, and the jury fails to return a verdict in its favor, the failure of the court to instruct on the measure of damages is harmless error in the event there has been a jury verdict finding no liability. Marshall v. Fulton Nat. Bank, 155 Ga. App. 51, 52 (270 SE2d 281) (1980). Assuming arguendo that the trial court’s failure to charge OCGA §§ 14-8-24 and 14-8-26 was error, such error was harmless as the jury here failed to return a verdict for Hayden. Id.

6. In enumeration of error 11 Hayden contends that the trial court’s charge with respect to the damages due him upon the dissolution of the partnership was error as it contained an erroneous statement of the law, confusion, and internal conflict. He argues that we should review the complained of charge, notwithstanding his failure to object to the charge as given before the verdict was rendered. We disagree.

“A party may not complain of the giving or failure to give an instruction to the jury unless he objects to the instruction before the jury returns its verdict, stating distinctly his objection and the grounds of his objection. OCGA § 5-5-24 (a). ‘ “Failure to except before verdict generally results in a waiver of any defects in the charge (cit.), the exception under (OCGA § 5-5-24 (c)) applying only when there has been a substantial error which was blatantly apparent and prejudicial, and which resulted in a gross miscarriage of justice.” ’ Durrett v. Farrar, 130 Ga. App. 298, 306 (8) (203 SE2d 265) (1973) [overruled on other grounds, Smith v. Telecable of Columbus, 140 Ga. App. 755, 757 (232 SE2d 100) (1976)]; Hunter v. Batton, 160 Ga. App. 849 (1) (288 SE2d 244) (1982).” Little v. Little, 173 Ga. App. 116 (325 SE2d 624) (1984). We find no blatant or prejudicial error in the complained of charge. Accordingly, we conclude that this enumeration of error is without merit.

7. As his twelfth enumeration of error Hayden contends that the trial court erred in charging the jury that it could find that Hayden had “abandoned” the partnerships in that such charge was unsupported by the evidence and such a finding precluded an award of damages for the loss of profits associated with future business opportunities. Apart from a colloquy with the trial judge prior to the charging conference in which he agreed that a finding of abandonment would foreclose damages for lost future business opportunity, we are unable to find any other reference to the subject in the transcript. Hayden having failed to object to the charge and there being no blatant or prejudicial error in the complained of charge, we conclude this enumeration of error to be without merit.

8. As enumeration of error 13 Hayden contends that the trial court erred by failing to charge the jury as to his entitlement to recover prejudgment interest pursuant to OCGA § 7-4-16. OCGA § 7-4-16 is applicable only to obligations to pay for goods and services on a commercial account and is inapplicable to obligations to return money arising out of the termination of a business relationship. Race, Inc. v. Wade Leasing, 201 Ga. App. 340, 342 (411 SE2d 56) (1991). Inasmuch as Hayden sought the return of monies associated with the termination of a business relationship, he was not entitled to an instruction as to prejudgment interest, and the trial court did not err in failing to so charge the jury. Even had the trial court been obligated to give a prejudgment interest instruction, it would not have been more than harmless error not to do so as the jury awarded no damages to Hayden. See Marshall, supra. Accordingly, this enumeration of error is without merit.

9. In light of our disposition of Divisions 1 through 8, we do not address Hayden’s remaining enumerations of error.

Case No. A95A1471

10. In this cross-appeal the Sigaris enumerate that the trial court erred by granting Hayden’s motion for j.n.o.v. with respect to the attorney fees awarded them by the jury pursuant to OCGA § 13-6-11 in that there is an evidentiary basis in the record upon which the jury could have found actionable bad faith in Hayden. We agree.

Although the evidence presented at trial was conflicting as to whether Hayden converted partnership funds to his personal use, there was evidence from which the jury could have concluded that Hayden made a partnership check numbered “109” payable to himself in the amount of $8,428 for other than a legitimate business expense. Hayden testified upon cross-examination that the check referenced a partnership vendor, Topping South, and that the check clearly reimbursed him for a business expense. Hayden, however, could not support the check by a receipt. Further, while the special master appointed to audit partnership funds found no misuse of funds, he did so noting that “M. Sigari disputes the claim that [the] check is to Topping South because Topping South is a foreign company and is typically paid by wire. Also, [M. Sigari] had a [letter] from Topping South which listed all payments received from MegaVend. No payments on this list corresponded to this amount.” The trial court charged the jury that it could award attorney fees to either party upon finding that such party acted in bad faith, had been stubbornly litigious, or had caused the other party unnecessary trouble and expense.

“It is well established as the law of this state that every intentional tort invokes a species of bad faith and entitles a person so wronged to recover the expenses of litigation including attorney fees.” Carroll v. Johnson, 144 Ga. App. 750, 752 (242 SE2d 296) (1978). Moreover, bad faith is a question for the jury to be determined from consideration of the facts and circumstances in the case. See Hodges v. Youmans, 129 Ga. App. 481, 483 (3) (200 SE2d 157) (1973). There was at least some evidence from which the jury could have found bad faith on Hayden’s part. At Hayden’s request, the parties mutually stipulated to attorney fees as reasonable. See Citadel Corp. v. All-South Subcontractors, 217 Ga. App. 736, 737 (458 SE2d 711) (1995) (“An award of attorney fees is unauthorized if [the Sigaris] failed to prove the actual costs of their attorneys and the reasonableness of those costs”). (Punctuation omitted.) See also First Bank of Clayton County v. Dollar, 159 Ga. App. 815, 817 (285 SE2d 203) (1981) (“Generally, a party will proffer the opinion testimony of his present counsel as well as that of other attorneys in an effort to show what consti-

Decided January 24, 1996

Spanos & Rochelle, Peter R. Spanos, Lisa M. Anbild, for appellants.

Eli J. Richardson, for appellees.

tutes a reasonable attorney fee in light of the litigation history of the case”). Further, since Hayden asked the trial court to place the stipulation before the jury, he cannot now complain that the trial court did so. Peters v. Davis, 214 Ga. App. 885, 888 (449 SE2d 624) (1994). Accordingly, the trial court’s grant of Hayden’s motion for j.n.o.v. was improper, and the trial court improperly struck that portion of the judgment awarding the Sigaris attorney fees as a result. See cf. Powell v. Watson, 190 Ga. App. 375, 376 (378 SE2d 867) (1989).

11. In light of our disposition of Division 10, we do not reach the Sigaris’ remaining enumeration of error.

Judgment affirmed in Case No. A95A1470. Judgment reversed in Case No. A95A1471.

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


author: Andrews, Judge.

text:
    A95A2382.
    GROOVER v. COMMERCIAL BANCORP OF GEORGIA, INC.
    (467 SE2d 355)
   Andrews, Judge.

Groover and Pruett personally guaranteed a note in the principal amount of $2,100,000 given by Millennium Development II Corporation (Millennium) to Commercial Bank of Georgia (Commercial Bank). After Millennium defaulted on the note and Commercial Bank assigned the note to Commercial Bancorp of Georgia, Inc. (Commercial Bancorp), Commercial Bancorp sued Groover and Pruett to collect on the note pursuant to the guarantees. The trial court entered summary judgment in favor of Commercial Bancorp, and Pruett and Groover appealed. In Pruett v. Commercial Bank of Ga., 206 Ga. App. 103 (424 SE2d 284) (1992) (the first appeal), we affirmed the grant of summary judgment in favor of Commercial Bancorp for the $2,100,000 principal amount due on the note and for pre-judgment interest due on the note through May 31, 1991. Id. at 104. We reversed the grant of summary judgment as to pre-judgment interest due under the terms of the note after it matured from June 1, 1991, until the date of the judgment, concluding that the amount of interest due had not been properly calculated. Id. at 104-105. We also reversed the grant of summary judgment for attorney fees for collection on the note because the record did not establish that the statutory notice required by OCGA § 13-1-11 had been given. Id. at 105. Upon the filing of the remittitur from this Court, the trial court re-entered judgment on the portion of its prior judgment affirmed on appeal. Subsequently, Pruett and Groover appealed again, and in Pruett v. Commercial Bank of Ga., 211 Ga. App. 692 (440 SE2d 85) (1994) (the second appeal), we again affirmed the same principal and interest portions of the trial court’s original judgment which were affirmed in the first appeal. In December 1993, while the second appeal was pending, Commercial Bancorp settled its claims against Pruett. After the second appeal, Commercial Bancorp again moved for summary judgment on interest and attorney fees due as provided by the note and moved the trial court to amend the execution issued on the judgment affirmed in the first appeal. The trial court granted both motions and Groover brings this third appeal.

1. Groover claims on various grounds that the trial court erroneously granted summary judgment to Commercial Bancorp for interest and attorney fees.

(a) Groover contends that an agreement under which Commercial Bancorp settled its claims against Pruett also released her (Groover) from all liability on the note.

The record reflects that in December 1993 Commercial Bancorp entered into a written settlement agreement with Pruett. The agreement recited the judgment entered against Pruett and Groover on the note in the amount of $2,309,832.33, which was affirmed in the first appeal, and noted that the second appeal from the judgment was pending at the time of the settlement agreement. The agreement stated that in consideration of payment by Pruett of $100,000 on or before December 23, 1993, and $25,000 on or before April 1, 1994, Commercial Bancorp would settle its claims against Pruett based on the note. The agreement further recited that the payments by Pruett were not to be considered a full satisfaction of the judgment, that the settlement with Pruett was not intended as a release of Groover, and that Commercial Bancorp retained its right to pursue Groover to collect the remaining amounts due under the note.

Groover contends that under the provisions of OCGA §§ 13-4-80 and 9-13-74 the agreement operated to release her from any further obligation on the note pursuant to her guaranty or from any obligation on the judgment. Under OCGA § 13-4-80, “[w]hen a creditor releases another who is bound jointly with or primarily to a debtor or accepts from a debtor a higher security for the same debt, not intended to be collateral thereto, a release results by operation of law.” Under OCGA § 9-13-74, “[a]n agreement for a valuable consideration never to enforce a judgment or execution shall release the judgment or execution.” Because the settlement agreement between Commercial Bancorp and Pruett clearly provided that Pruett’s payments were not a full satisfaction of amounts due on the note and that Commercial Bancorp retained the right to proceed against Groover, the agreement cannot be construed as a general release of Groover under either of the above Code sections. Crim v. Jones, 204 Ga. App. 289, 291 (419 SE2d 130) (1992). This is true whether the settlement agreement is characterized as a covenant not to sue executed lis pendens as to the portion of interest and attorney fees not reduced to judgment or as an agreement not to enforce the existing judgment for principal and interest. Id. at 291-292; Marret v. Scott, 212 Ga. App. 427 (441 SE2d 902) (1994); Ga. R. Bank &c. Co. v. Griffith, 176 Ga. App. 198 (335 SE2d 417) (1985); compare J & S Properties v. Sterling, 192 Ga. App. 181 (384 SE2d 194) (1989).

The case of Weems v. Freeman, 234 Ga. 575 (216 SE2d 774) (1975), cited by Groover as authority supporting her release argument, does not require a contrary result. Weems dealt with the common law rule of release as applied to joint tortfeasors and in the tort context has been effectively overruled by subsequent rulings in Posey v. Med. Center-West, 257 Ga. 55 (354 SE2d 417) (1987) and Lackey v. McDowell, 262 Ga. 185 (415 SE2d 902) (1992), which provide that only those parties named and released in the instrument at issue will be discharged. To the extent Weems may be construed as authority governing the release of the joint guarantees made by Pruett and Groover in this case, Weems expressly recognizes that no release occurs “[wjhere the right to sue [the remaining party] has been reserved and the plaintiff has not received full satisfaction. ...” Id. at 576; Crim, supra at 291; Marret, supra at 431.

(b) Groover also claims that in granting summary judgment the trial court awarded interest which erroneously included post-judgment interest calculated not only on the principal amount due on the note but also on accrued pre-judgment interest.

In the first appeal, we affirmed the trial court’s November 19, 1991 grant of summary judgment for the principal amount due on the note and for pre-judgment interest due as of May 31, 1991, and reversed the portion of the judgment awarding pre-judgment interest after May 31, 1991, and attorney fees for collection on the note. As to the pre-judgment interest after May 31, 1991, we found Commercial Bancorp failed to properly calculate the amount due from June 1, 1991, to the November 19, 1991 judgment date. The second appeal reaffirmed the same portions of the original judgment affirmed in the first appeal. Although two appeals were taken from the original judgment on the note entered by the trial court on November 19, 1991, the trial court’s judgment in favor of Commercial Bancorp as to liability on the note and the principal sum due was affirmed in both appeals. Accordingly, post-judgment interest ran, not from the date the trial court adopted the appellate judgment of this Court, but from the date the original judgment was entered in the trial court on November 19, 1991. CRS Sirrine, Inc. v. Dravo Corp., 219 Ga. App. 301 (464 SE2d 897) (1995); see Wilensky v. Blalock, 205 Ga. App. 845, 846 (424 SE2d 26) (1992); OCGA § 7-4-12.

In support of its motion for summary judgment as to interest due after May 31, 1991, Commercial Bancorp produced an affidavit from one of its officers calculating interest due from June 1, 1991, to September 20, 1993, in the amount of $917,682.30. Accordingly, the amount of interest calculated in Commercial Bancorp’s affidavit from June 1, 1991, to the judgment entered on November 19, 1991, was pre-judgment interest on the note, and the interest calculated after that date was post-judgment interest. Since the note provided for interest at a specified rate, the rate of interest specified in the note was correctly applied by Commercial Bancorp to both the pre-judgment and post-judgment calculations in the affidavit. OCGA § 7-4-12.

Nevertheless, Groover claims the affidavit calculating interest erroneously determined the total amount of interest due by calculating post-judgment interest not only on the principal amount due on the note but also on accrued pre-judgment interest. Under OCGA § 9-12-10, “[i]n all cases where judgment is obtained, the judgment shall be entered for the principal sum due, with interest, provided the claim upon which it was obtained draws interest. No part of the judgment shall bear interest except the principal which is due on the original debt.” “[T]his . . . statute forbids post-judgment interest except on the principal or original debt and expressly excludes pre-judgment interest, where authorized, to be included in the amount used to compute post-judgment interest.” Dept. of Transp. v. Consolidated Equities Corp., 181 Ga. App. 672, 677 (353 SE2d 603) (1987). The affidavit provided by Commercial Bancorp for the calculation of interest from June 1, 1991 through September 20, 1993, clearly shows that, once a month, accrued interest was added to the principal balance due and interest for the next period, including post-judgment interest after November 19, 1991, was calculated on the new principal balance plus the accrued interest. Thus, it is clear that the interest total calculated in the affidavit and awarded in the order granting summary judgment includes amounts expressly excluded by OCGA § 9-12-10. Windermere, Ltd. v. Bettes, 211 Ga. App. 177, 180-181 (438 SE2d 406) (1993).

(c) In light of our conclusion that the affidavit provided by Commercial Bancorp in support of summary judgment was insufficient because it improperly calculated the amount of interest due, we need not address Groover’s additional claim relating to the technical sufficiency of the affidavit.

(d) Groover claims that payments made by Pruett pursuant to the December 1993 settlement agreement were not properly taken into consideration in the calculation of interest and attorney fees due under the note.

The affidavit calculating the amount of interest due does not reflect any payments made by Pruett pursuant to the settlement agreement, and the record does not show whether or not Pruett made the agreed upon payments. Even if he did, any payments under the agreement would have no bearing on the calculation of the amount of prejudgment interest which accrued on the note from June 1, 1991, until judgment was entered on November 19, 1991. We agree that the calculation of post-judgment interest would be affected to the extent that any partial payments made on the note by Pruett reduced the principal amount on which post-judgment interest is calculated. However, the calculation of post-judgment interest through September 20, 1993, in the Commercial Bancorp affidavit could not have been affected by any subsequent payments made by Pruett under the December 1993 settlement agreement.

As to attorney fees, the note provided that, if collected by or through an attorney, 15 percent of the unpaid balance on the note was due as attorney fees. OCGA § 13-1-11. An affidavit in support of the award of attorney fees shows that the notice required by OCGA § 13-1-11 was given, and the record reflects that the amount of attorney fees was calculated solely on the principal amount due on the note at the time of default and suit for collection. Accordingly, the calculation of attorney fees due was unaffected by any subsequent payments made by Pruett under the settlement agreement. The trial court properly granted summary judgment as to attorney fees due for collection of the note.

2. Groover contends that the trial court erred by granting Commercial Bancorp’s motion to amend the execution issued on the judgment after the return of the remittitur from the first appeal.

The trial court’s order granting the motion recites that the trial court entered a judgment in favor of Commercial Bancorp on November 19, 1991; that on November 20, 1991, Groover and Pruett filed a notice of appeal to this Court from the judgment; that in December 1991, while the appeal was pending, Groover executed a debt deed conveying an interest in her real property to her attorney; and that a portion of the original judgment was subsequently affirmed by this Court on appeal. The order further recites that, following the April 1993 return of the remittitur, the trial court re-entered judgment against Groover and Pruett in the amount of $2,309,832.33, the portion of the original judgment affirmed on appeal, and issued an execution on the judgment on April 27, 1993.

The motion to amend the execution was brought pursuant to OCGA § 9-13-5, which provides that an execution “may be amended so as to conform to the judgment upon which it issued and to the time of its return. ...” Commercial Bancorp sought to have the 1993 execution amended to ensure that the judgment had priority over the 1991 debt deed given by Groover to her attorney. Accordingly, the motion sought to conform the execution to the original 1991 judgment “so that it is deemed issued pursuant to the [trial] court’s judgment of November 19, 1991 to the extent that it was affirmed by the Court of Appeals.”

The filing of the notice of appeal the day after the trial court entered the judgment precluded the issuance of an execution on the judgment prior to the appeal, suspended the judgment, and acted as supersedeas staying any execution attempts during the appeal. OCGA §§ 9-11-62; 9-12-19; 5-3-7; 5-6-46. Under OCGA § 5-6-12, “[i]f the judgment of the lower court is affirmed, upon the filing of the remittitur with the clerk of the court below, the supersedeas shall cease and execution shall issue at once for the amount of the original judgment.” Upon this Court’s affirmance of a portion of the trial court’s judgment and the filing of the remittitur, the trial court correctly entered judgment for the portion of the original judgment affirmed on appeal and issued an execution on the judgment. Although the execution was issued after the judgment was affirmed on appeal, it followed the judgment as required by OCGA § 9-13-3. Accordingly, there was no basis to amend the execution pursuant to OCGA § 9-13-5. Moreover, there was no need to amend the execution to ensure that the judgment had priority over the debt deed executed by Groover during the appeal. Even though the execution on the judgment did not issue until after a portion of the judgment was affirmed on appeal, for priority purposes, the affirmed portion of the judgment constituted a lien from the date of its original rendition in the trial court on November 19, 1991. Nat. Bank of Ga. v. Morris-Weathers Co., 248 Ga. 798 (286 SE2d 17) (1982); see OCGA § 9-12-80. Furthermore, any attempted alienation by Groover of her property by executing a debt deed in favor of her attorney while the appeal was pending was ineffective under OCGA § 9-12-88. See Behn & Foster v. Phillips, 18 Ga. 466 (1855).

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Smith, J., concur. Blackburn J., disqualified.

Decided January 25, 1996

Marvin P. Nodvin, for appellant.

Frankel, Hardwick, Tanenbaum & Fink, James J. Brissette, for appellee.

       Obviously, since Commercial Bancorp is entitled to only one satisfaction on the note, any payments made by Pruett on the note pursuant to the settlement agreement must be credited as against any remaining amounts sought to be recovered against Groover on the note. Atlantic Coast Line R. Co. v. Ouzts, 82 Ga. App. 36, 59 (60 SE2d 770) (1950). It follows that the provision in the settlement agreement requiring that Commercial Bancorp and Pruett keep confidential and not divulge amounts paid by Pruett is not enforceable to prevent Groover from discovering any sums paid by Pruett on the note.


author: Ruffin, Judge.

text:
    A95A2395.
    MAYFIELD v. THE STATE.
    (467 SE2d 352)
   Ruffin, Judge.

Eddie Mayfield was convicted of distributing cocaine in violation of the Georgia Controlled Substances Act. He appeals the judgment of conviction and the denial of his motion for new trial. For reasons which follow, we affirm.

1. Mayfield contends the evidence was insufficient for the jury to find him guilty beyond a reasonable doubt. We disagree.

Viewed in a light to support the verdict, the evidence showed that on June 4, 1993, two GBI agents, Horton and Duren, and their informant were conducting an undercover narcotics investigation. Agent Horton testified that while driving in front of an apartment complex, Mayfield’s co-defendant, Edward Head, signaled them to stop the car. When the agents did so, Head approached the car and asked what they needed. Horton responded she needed “two twenties,” which meant $40 worth of crack cocaine. Head told the agents he did not have any cocaine at that time but motioned for Mayfield to come to the car. Mayfield told the agents he had only one “twenty,” and Horton purchased the crack cocaine from him. Shortly thereafter, Horton reviewed 15 photographs and selected Mayfield’s photograph as the individual who sold her the crack cocaine. Mayfield and Head were arrested five months later, and at that time Agent Horton again identified Mayfield as the individual who sold her cocaine in June.

The foregoing evidence, construed in a light most favorable to the State, was sufficient to authorize a rational trier of fact to find May-field guilty of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Hunter v. State, 202 Ga. App. 195 (1) (413 SE2d 526) (1991).

2. Mayfield contends the trial court erred in denying his motion to sever because he was prejudiced when the jury saw a videotape which showed Head selling cocaine to Agent Duren one month after the sale for which Mayfield was indicted. He argues that the court should have given the jury an instruction cautioning that he was not involved in the sale depicted on the tape.

Prior to the testimony of the officer who authenticated the videotape, and in the jury’s presence, Mayfield’s attorney requested that the court “instruct the Jury to keep in mind as they view this video it does not relate to Count One, Mr. Mayfield. They should not think of it as in any way impugning on Mr. Mayfield.” The court responded “[w]ell, as I understood it, whatever is depicted in the video tape dealt with Count Two which I believe is, maybe, in July. Is that right?” Following the officer’s testimony and before the tape was played, Mayfield’s attorney again asked the court “to give some proper cautionary instructions as they relate to [Mayfield].” The court responded, “[w]ell, I’ve indicated, I thought I did, that I understand this [tape] purports to involve Count Two. But I haven’t seen [the tape]. I can’t state who or who is not depicted in it. That would be for the Jury to decide, in any event. But I did caution them that this applied only to Count Two and the Defendant Mr. Head is the only defendant charged in Count Two of the indictment.” The court also reiterated in its charge to the jury that Count 2 of the indictment related solely to Edward Head.

We find no error in the court’s denial of the motion to sever. OCGA § 17-8-4 provides that when two or more defendants are jointly indicted for a noncapital felony, such defendants may be tried jointly or severally in the discretion of the trial court. The denial of a motion to sever is within the trial court’s discretion, and it will not be reversed absent an abuse of discretion. Marlow v. State, 207 Ga. App. 269 (1) (427 SE2d 600) (1993). In exercising its discretion, the trial court is to consider the following: whether the number of defendants will create confusion of the evidence and law applicable to each individual defendant; whether there is a danger that evidence admissible against one defendant will be considered against the other despite cautionary instructions by the court; and whether the defenses of the defendants are antagonistic to each other. Id.

“The burden is on the defendant requesting a severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process.” (Citations and punctuation omitted.) Johnson v. State, 208 Ga. App. 747, 749 (2) (431 SE2d 737) (1993). Although Mayfield complains that he was prejudiced, he has not shown by the record that the videotape admitted against Head was considered against him. We note parenthetically that the foregoing colloquy in the jury’s presence as well as the court’s charge was tantamount to cautioning the jury that the videotape was to be considered only with respect to Count 2, the count with which only May-field’s co-defendant was charged. Nor has Mayfield shown that the failure to sever created confusion of the evidence and law applicable to each defendant or that he and Head had antagonistic defenses. See id. Thus, the trial court did not abuse its discretion in denying the motion to sever.

Decided January 25, 1996.

William A. Fears, for appellant.

Tommy K. Floyd, District Attorney, James L. Wright III, Assistant District Attorney, for appellee.

3. Mayfield contends the trial court erred in allowing the State to admit into evidence the crack cocaine Horton purchased from him because the exhibit contained two pieces of cocaine and Horton testified that she bought only one small rock of cocaine from him. Citing OCGA §§ 24-4-1 and 24-4-2, Mayfield argues that a proper foundation for the exhibit was not established and that the admission of the exhibit impermissibly shifted the burden to him to explain this discrepancy. We disagree.

To begin with, the court properly instructed the jury on the State’s burden of proof in a criminal case. In addition, the undercover agent testified that after purchasing the cocaine in Exhibit 1 from Mayfield, she placed it in an evidence bag and maintained it until she gave it to the Macon Crime Laboratory four days later. The forensic scientist from the crime laboratory who received and tested the evidence testified that it was secured in storage until it was tested. When asked about the discrepancy in the number of pieces of cocaine, she testified that because of the nature of the drug, it can break in two or crumble. Not only did the State give a plausible explanation for the discrepancy, but such a disparity is an issue for the jury to resolve and goes to the weight rather than the admissibility of the evidence. See, e.g., Thomas v. State, 208 Ga. App. 476 (1) (430 SE2d 849) (1993). Accordingly, we find no error.

Judgment affirmed.

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


text:
    A95A2619.
    MALEY v. VANCRONKITE et al.
    (467 SE2d 351)
   Andrews, Judge.

We granted this discretionary appeal to determine whether the state court erred in modifying a default judgment against Specialty Atlanta, Inc., for garnishment of VanCronkite’s salary. We find that it did and reverse.

Maley obtained the default judgment against Specialty Atlanta on January 5, 1995. Specialty Atlanta received notice of the default judgment on January 11, 1995, and moved to modify the default judgment on February 22, 1995, well within the 60-day limit imposed by OCGA § 18-4-91. However, Specialty Atlanta did not pay accrued costs until April 24, 1995, more than 90 days after receiving notice of the default judgment.

1. Maley contends that Specialty Atlanta failed to comply with the requirements of OCGA § 18-4-91 because it did not pay accrued costs into court at the time it filed its motion to modify the default judgment. OCGA § 18-4-91 states: “When a judgment is rendered against a garnishee under Code Section 18-4-90, on a motion filed not later than 60 days from the date the garnishee receives actual notice of the entry of the judgment against him, he may, upon payment of all accrued costs of court, have the judgment modified. . . .”

Maley contends that OCGA § 18-4-91 requires that both the motion to modify and the payment of accrued costs must occur within the 60-day period. Maley supports her argument by citing Hazzard v. Phillips, 249 Ga. 24 (287 SE2d 191) (1982), which deals with a different Code Section, OCGA § 9-11-55. Hazzard holds that “[f]ull payment of costs is a condition precedent to opening a default.” Id. at 25.

Specialty Atlanta contends that only the motion to modify must be made within the 60 days, while the payment of costs is merely required at some time before the court modifies the default judgment. But, case law does not support this position. Marler Oil Co. v. C & S Bank of Milledgeville, 153 Ga. App. 186 (265 SE2d 58) (1980), is directly on point. In Marler, we found that, although the appellant-garnishee filed its motion for relief within the 60-day period, it did not tender the accrued costs until 80 days after receiving actual notice, and therefore, the trial court correctly denied the garnishee’s motion to modify the default judgment. Id. at 186. See also Cartwright v. Alpha Transp. Svc., 159 Ga. App. 296, 298 (283 SE2d 282) (1981), rev’d on other grounds, 248 Ga. 701 (285 SE2d 713) (1982) (trial court did not err in denying motion to modify default judgment because garnishee failed to pay accrued costs within the required 60-day period). In J.E.E.H. Enterprises v. Montgomery Ward & Co., 172 Ga. App. 58 (321 SE2d 800) (1984), this Court found that “[t]he language of the statute is plain and unequivocal language and permits of no other reasonable construction than that payment of all accrued costs is a prerequisite to bringing the motion to modify [a default judgment of garnishment].” Id. at 59. Webster’s Dictionary defines “prerequisite” as: “required beforehand; necessary as a preliminary condition.” Webster’s Third New International Dictionary, p. 1791 (1981). Thus, in light of this court’s holding that payment of costs is a prerequisite to bringing the motion to modify, Specialty Atlanta’s argument that it must pay costs only at some time prior to when judgment is rendered must fail. Accordingly, the trial court erred in finding that Specialty Atlanta complied with the requirements of OCGA § 18-4-91.

2. Because of our holding in Division 1, we do not address the remaining enumeration of error.

Judgment reversed.

McMurray, P. J., and Blackburn, J., concur.

Decided January 25, 1996

England & McKnight, Robert H. McKnight, Jr., for appellant.

Gandy, Rice & Sundberg, L. Spencer Gandy, Jr., for appellees.


author: Pope, Presiding Judge.

text:
    A95A2773.
    TALLMAN v. HINTON et al.
    (467 SE2d 596)
   Pope, Presiding Judge.

This appeal arose out of a complaint filed by Kelly Tallman in which Tallman contended that she had been maliciously prosecuted for a dishonored check. The trial court determined that all the defendants to her lawsuit were entitled to civil immunity pursuant to OCGA § 16-9-20 (h) (1) because of their substantial compliance with the notice provisions of OCGA § 16-9-20 (a) (2) (B). For the reasons that follow, we reverse.

Tallman wrote a check for groceries on July 24, 1990, for $41.95 to Zack’s Big Buy. Tallman’s bank failed to honor her check because the signature on the check did not appear to match her signature card and the bank returned it to Zack’s Big Buy with a notation “refer to maker.” No evidence was presented to show that her checking account lacked sufficient funds.

Zack’s Big Buy sent Tallman a certified mail notice concerning the dishonored check and this notice was eventually returned undelivered. After receiving no response from Tallman, on October 9, 1990, Robert Carmichael, the manager of Zack’s Big Buy, procured a criminal warrant for Tallman’s arrest based on the dishonored check. When Tallman discovered that a criminal warrant had been issued, she voluntarily reported to the jail, where she was arrested, photographed, fingerprinted and required to make bond. She testified that between July 24, 1990, the date of the dishonored check and the date of her arrest, she had written at least 18 checks from the same checking account to Zack’s Big Buy including a check on the night before her arrest. All of Tallman’s 18 checks written subsequent to July 24, 1990, were accepted and cashed by Zack’s Big Buy.

After her arrest, Tallman testified that she informed Carmichael that her checking account had automatic overdraft protection, her account had had ample funds at all times and she was prepared to pay the deficiency immediately. Tallman presented evidence that Carmichael refused to accept her payment offer, and that he refused to dismiss the warrant, claiming the matter had to be resolved in court.

On November 2, 1990, a magistrate reviewed Tallman’s bank statements from June to October 1990, which purportedly showed Tallman’s account had never been overdrawn and had always contained sufficient funds. Tallman claimed the bank documents also indicated that she had overdraft protection. The magistrate accepted $56.95, the amount of the check plus $15, and dismissed the criminal case. Tallman then brought suit for false arrest, malicious prosecution, illegal detention, loss of reputation, and damages against Zack B. Hinton, Sr. d/b/a Zack’s Big Buy, Zack’s Mini Warehouses, Recycling Center, Robert Carmichael and Zack’s Properties, Inc. (“Hinton”). Following the trial court’s grant of Hinton’s motion for summary judgment, Tallman brought this appeal.

1. Tallman contends the court erred in granting summary judgment to Hinton because Hinton’s notice did not conform substantially to the notice required by OCGA § 16-9-20 (a) (2) (B).

Hinton counters that Tallman’s argument places form over substance and that the notice substantially complied with the statute.

OCGA § 16-9-20 (a) (2) (B) requires that the notice describe the check number, date, check amount, name of bank drawn upon, name of the payee and the words “(has) . . . been dishonored.” The statute further provides, “Pursuant to Georgia law, you have ten days from receipt of this notice to tender payment of the total amount of the instrument(s) plus the applicable service charge(s) of $_, the total amount due being_dollars and_cents. Unless this amount is paid in full within the specified time above, a presumption in law arises that you delivered the instrument(s) with the intent to defraud and the dishonored instrument(s) and all other available information relating to this incident may be submitted to the magistrate for the issuance of a criminal warrant or citation or to the district attorney or solicitor for criminal prosecution.” OCGA § 16-9-20 (a) (2) (B).

Hinton’s notice letter consisted of the following: “Dear Kelly Tallman, Your check in the amount of $41.95 was returned to us by the bank because of refer to maker. Please make payment plus $20.00 ‘per check’ service charge at Zack’s Big Buy within ten (10) days from date of this letter or we will be forced to take appropriate legal action. Make all restitutions to attn: of Robert Carmichael. Sincerely, (signed) Robert Carmichael, Manager.”

Hinton’s notice obviously failed to provide the check number, check date, name of bank, name of the payee, and did not include the warning “has been dishonored.” More importantly, Hinton’s notice letter to Tallman plainly failed to provide notice regarding the ominous consequence of failing to make restitution within ten days: that she might be subject to criminal prosecution. While the statutory language discloses that a failure to make restitution will create a presumption of intent to defraud, Hinton’s notice is silent as to the legal effect of failing to act. While the statutory language places the check writer on notice that a criminal warrant and criminal prosecution may be forthcoming, Hinton’s notice mentioned only “appropriate legal action,” failing even to allude to possible criminal ramifications.

Decided January 25, 1996.

Paul S. Weiner, for appellant.

We reject Hinton’s contention that the notice provisions requiring the check number, check date, and name of bank where the check was drawn, apply only to business entities and not to individuals. Hinton cites no authority for its argument that because Tallman was one individual and had only one checking account, Hinton was exempted from providing this specific information. Because a statute should be read according to its natural and most obvious import of the language without resorting to subtle and forced constructions for the purpose of either limiting or extending its operation, we reject Hinton’s effort to limit the statutory notice provisions to business entities. Burbridge v. Hensley, 194 Ga. App. 523, 524 (391 SE2d 5) (1990).

Accordingly, we hold that Hinton’s notice was defective as a matter of law. In order to have immunity, OCGA § 16-9-20 (h) (1) requires a holder of a worthless check to send notice “in substantially similar form to that provided in [OCGA § 16-9-20 (a) (2) (B)]” to the check writer. Because Hinton failed to comply or to substantially comply with the notice requirements of OCGA § 16-9-20 (a) (2) (B), the defendants were not entitled to civil immunity pursuant to OCGA § 16-9-20 (h) (1) and summary judgment must be reversed.

2. Tallman contends the court erred in granting summary judgment because Hinton continued to pursue criminal prosecution after being made aware that Tallman’s account contained sufficient funds and that Tallman was ready, willing and able to make payment.

The sole basis of Hinton’s motion for summary judgment was its claim of entitlement to civil immunity under OCGA § 16-9-20 (h) (1). Because the underlying case was not adjudicated on its merits, we decline to reach the malicious prosecution issue.

3. Tallman also claims that summary judgment was erroneously granted to all the named defendants. Having determined in Division 1 that the defendants were not entitled to civil immunity, summary judgment as to all the named defendants is reversed.

Judgment reversed.

Beasley, C. J., and Ruffin, J., concur.

Swift, Currie, McGhee & Hiers, Susan A. Dewberry, for appellees.

       OCGA § 16-9-20 (a) (2) applies to situations where “[p]ayment was refused by the drawee for lack of funds.” In this case, Tallman’s checking account did not lack sufficient funds to cover the dishonored check.

       OCGA § 16-9-20 (a) does not require proof that the notice is received.


text:
    A94A1254.
    FULLER ENTERPRISES, INC. v. HARDIN CONSTRUCTION GROUP, INC.
    (467 SE2d 613)
    Decided January 26, 1996.

      Sonja L. Salo, for appellant.

      Smith & Fleming, Robert 0. Fleming, Jr., for appellee.
   Ruffin, Judge.

In accordance with the judgment of the Supreme Court in Hardin Constr. Group v. Fuller Enterprises, 265 Ga. 770 (462 SE2d 130) (1995), the decision of this Court in Fuller Enterprises v. Hardin Constr. Group, 215 Ga. App. 549 (451 SE2d 483) (1994), is reversed, and the judgment of the trial court is hereby affirmed.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A95A2237.
    PERRY v. OSSICK.
    (467 SE2d 604)
   Andrews, Judge.

Sharon Perry brought a legal malpractice action against Ossick, the attorney who represented her in a divorce action. The trial court granted summary judgment in favor of Ossick, and Perry appeals.

Ms. Perry claims Ossick failed to adequately advise her about the risks associated with a portion of the settlement agreement in the divorce action providing that Mr. Perry pay her $185,000 by giving her a note in that amount designated as a property distribution and secured by certain real property. After Ossick agreed to represent Ms. Perry in the divorce action, settlement terms were initially worked out in direct talks between Ms. Perry and Mr. Perry. Ossick reviewed the proposed agreement with Ms. Perry, advised her, made revisions, and prepared the final agreement which was signed by both parties in May 1988 and incorporated into the final judgment and decree in the divorce action. In general, the agreement provided for joint custody of the parties’ three minor children, child support, medical and life insurance, division of household goods and automobiles, a cash payment by Mr. Perry in the amount of $15,000, and a note from Mr. Perry to Ms. Perry in the amount of $185,000 designated as a property distribution. The agreement provided that the note was payable in nine years with no interest and that it was secured by security interests executed by Mr. Perry in his business office and the marital residence. The agreement further provided that payment of equity from any sale of the marital residence up to $40,000 was to be applied to payment on the note and that, in any year Mr. Perry earned in excess of $60,000, he was to pay ten percent of his net income to be applied toward amortization of the note.

Mr. Perry made the $15,000 cash payment called for under the settlement agreement, and in 1988, when his income exceeded $60,000, he paid $7,000 toward amortization of the note under the terms of the agreement. Mr. Perry’s income decreased in subsequent years, and no other payments were received by Ms. Perry in reduction of the note. In July 1991, the business office and the marital residence securing the note were foreclosed on by the holders of first debt deeds, which were senior to the security interests in the properties given by Mr. Perry under the settlement agreement.

In August 1991, Mr. Perry filed a Chapter 7 bankruptcy petition and sought to have the remainder of the $185,000 note obligation discharged in bankruptcy as a property distribution. Ms. Perry filed an adversary proceeding challenging the discharge of the note on the basis that, despite being characterized as a property distribution in the settlement agreement, the payment was actually a non-discharge-able support obligation. This issue was tried before the bankruptcy court, which ruled that $64,400 of the obligation was actually in the nature of non-dischargeable support, but that the balance was a dis-chargeable property distribution. No appeal was taken from the order of the bankruptcy court.

Ms. Perry deposed that, other than personal effects, automobiles and household goods and furniture divided up in the settlement agreement, the only other assets at issue were the marital residence, Mr. Perry’s business office, and a lot owned by Mr. Perry. It is undisputed there were first mortgages on both the residence and the office, and there was little or no equity in either of these properties at the time of the settlement agreement. Ms. Perry testified that, although she was aware of a first mortgage on the marital residence and was aware that Mr. Perry had borrowed about $150,000 on his office, she was not informed and did not know how much equity was in the residence or the office at the time she signed the settlement agreement. She testified that Ossick did not discuss with her the effect that foreclosure on the properties could have on the security for the note. She testified that she did become aware, prior to foreclosure, that the senior mortgages on the residence and office had gone into default. Upon learning of the impending foreclosures, she had discussions with Mr. Perry in an effort to convince him to stop the foreclosures, and she considered taking some action on her own to stop the foreclosures, but took none. Ms. Perry further testified that, in advising her on the structuring of the settlement agreement, Ossick explained some of the advantages and disadvantages of alimony and property division, including advice that alimony as opposed to property division was taxable as income and was subject to modification, but that he did not tell her that property division was subject to discharge in bankruptcy, while alimony was not.

On the other hand, Ossick deposed that he did inform Ms. Perry of the fact that a property division was subject to being discharged in bankruptcy, and that he discussed with her the risk that there was a lack of equity in the business office being taken as security for the note. Ossick also gave undisputed deposition testimony that he recommended to Ms. Perry that the lot owned by Mr. Perry be designated as additional security for the note since it had equity, but that Ms. Perry rejected this recommendation indicating she had agreed to let Mr. Perry keep the lot for sale.

In the pre-trial order entered by the trial court, Ms. Perry alleges that, in advising her with respect to the $185,000 payment in the settlement agreement, Ossick was negligent because he: (1) failed to advise her that a possible consequence of characterizing the payment as property distribution as opposed to alimony was that the note could be discharged in bankruptcy; (2) failed to investigate to determine and advise her of the status of the first mortgages and the existing equity in the properties in which junior security interests were taken as security for the note; and (3) failed to include a clause in the settlement agreement requiring that Ms. Perry be given notice of any foreclosure action on the secured properties.

Although Ossick gave testimony to the effect that he adequately investigated and advised Ms. Perry as to the financial circumstances, various options for structuring the settlement agreement, and the associated advantages and disadvantages, and acted within the appropriate standard of care, Ms. Perry provided expert testimony from an attorney, who testified that, in his opinion, Ossick’s representation of Ms. Perry was below the standard of care for attorneys under the circumstances. In summary, the expert testified that, assuming Ms. Perry did not know of the lack of equity in the two properties used to secure payment on the note, and that Ossick did not otherwise determine and advise Ms. Perry of the lack of equity, Ossick did not adequately advise Ms. Perry of the risk she was taking in accepting the note for $185,000. The expert also testified that, assuming Ossick failed to advise Ms. Perry that, as a property distribution, the note was subject to being discharged in bankruptcy, this failure was also below the appropriate standard of care.

“ ‘In a legal malpractice action, the client has the burden of establishing three elements: (1) employment of the defendant attorney, (2) failure of the attorney to exercise ordinary care, skill and diligence, and (3) that such negligence was the proximate cause of damage to the plaintiff. (Cits.)’ [Cits.]” Huntington v. Fishman, 212 Ga. App. 27, 29 (441 SE2d 444) (1994). As to the first element, it is undisputed that Ossick was employed by Ms. Perry as her attorney to advise her with respect to the settlement agreement. We need not address the second element because, even assuming that a question of fact existed as to whether Ossick failed to exercise ordinary care, skill, and diligence under the circumstances, the record fails to establish a question of fact as to the third element regarding damages.

As damages, Ms. Perry claims she has not received full payment on the $185,000 obligation. She does not contend that the amount of the $185,000 payment contemplated in the settlement agreement was inadequate. Rather, she contends that Ossick’s alleged negligence caused her to accept the note as a means of obtaining the $185,000 without realizing the actual risk that the note might not be paid. Apparently, Ms. Perry would claim that, had Ossick properly advised her of the risk, she would have rejected the note as a means to obtain payment of the $185,000 and would have attempted to obtain the $185,000 payment from Mr. Perry in some other manner. Even if Ms. Perry could have sought to collect all or part of the $185,000 in the form of alimony, there is no evidence in the record showing that any such claim would have been awardable or collectable against Mr. Perry. “A client suing his attorney for malpractice not only must prove that his claim was valid and would have resulted in a judgment in his favor, but also that said judgment would have been collectible in some amount, for therein lies the measure of his damages.” McDow v. Dixon, 138 Ga. App. 338, 339 (226 SE2d 145) (1976).

Moreover, pursuant to Mr. Perry’s bankruptcy petition, the bankruptcy court found the remainder of the obligation was dis-chargeable property distribution, except for $64,400 found to be nondischargeable support still payable by Mr. Perry. Accordingly, it appears any damage to Ms. Perry was the complete loss of the right to receive payment of the discharged portion of the obligation and the risk she bore that Mr. Perry would not pay the remaining amount still due on the note.

As to the portion of the $185,000 obligation discharged by the bankruptcy court, the mere characterization of the payment in the settlement agreement as a property distribution did not affect the bankruptcy court’s determination as to whether, under all the circumstances of the marital situation, the obligation was in the nature of non-dischargeable alimony, maintenance or support pursuant to 11 USC § 523, or was a dischargeable property distribution. Manuel v. Manuel, 239 Ga. 685, 688 (238 SE2d 328) (1977). “It is clear that in federal bankruptcy proceedings the bankruptcy court sitting in equity is not bound by the terms of the agreement or decree and has the power to sift the circumstances of the marital situation to determine whether the wife’s claim is in fact for maintenance or support and, therefore, nondischargeable. [Cits.]” Id. at 688. As the trial court noted in its order granting summary judgment, the bankruptcy court concluded that the circumstances at the time the settlement agreement was entered showed that Ms. Perry’s income was sufficient to meet all needs for support including food, housing, and basic necessities, that Ms. Perry testified she intended to use the payment at issue to pay some bills, take a vacation, and buy some extras for the children. Accordingly, the bankruptcy court concluded that, except for $64,400 of the obligation intended for the childrens’ college education, the obligation was not in the nature of support. Furthermore, since no appeal was taken from the order of the bankruptpy court, the judgment was res judicata. Id. at 686; Collins v. Collins, 208 Ga. App. 862 (432 SE2d 605) (1993).

There is nothing in the record showing that, under the marital circumstances, the payment of the $185,000 could have been characterized or structured in a manner that would have eliminated the risk of dischargeability in bankruptcy. Accordingly, there is no evidence that any alleged failure by Ossick had any causative effect on Mr. Perry’s right to seek discharge in bankruptcy or the bankruptcy court’s determination that a portion of the obligation was discharge-able. As to the non-dischargeable portion still payable under the note, as stated above, Ms. Perry has produced no evidence showing that the obligation would have been otherwise awardable or collectable against Mr. Perry, so no damages have been demonstrated. McDow, supra at 339. In the absence of evidence to support the essential element of damages proximately caused by the alleged professional negligence, summary judgment in favor of Ossick was appropriate. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474) (1991).

Ms. Perry also alleged that Ossick negligently failed to include a clause in the settlement agreement requiring that she be given notice of any foreclosure action on the properties securing the note so she could have an opportunity to protect her interests. First, it is not clear that Ms. Perry produced the necessary expert opinion in response to Ossick’s motion for summary judgment indicating that this specific failure was below the applicable standard of care for attorneys under the circumstances. See Graves v. Jones, 184 Ga. App. 128, 130 (361 SE2d 19) (1987). Even assuming the expert did render this opinion, the record shows Ms. Perry had prior notice of the foreclosures, so she has demonstrated no harm.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

Decided January 26, 1996.

Farnham & Wheeler, David J. Farnham, for appellant.

Freeman & Hawkins, Thomas F. Wamsley, Jr., Kristrine B. Mo-rain, H. Lane Young II, for appellee.