text:
    76014.
    76015.
    PROTHRO v. THE STATE. CLARK v. THE STATE.
    (368 SE2d 793)
   Carley, Judge.

Appellants were co-indicted for the offense of burglary. They were jointly tried before a jury and both were found guilty. Each appellant filed a separate appeal from the respective judgment of conviction and sentence that was entered on the guilty verdict returned against him. Appellants’ separate appeals are hereby consolidated for appellate disposition in this single opinion.

1. The general grounds are enumerated.

Appellants contend that the evidence presented at trial was insufficient to establish an unauthorized entry of the premises which were alleged to have been burglarized. “ ‘Burglary . . . involves the criminal necessarily placing himself within some building or other structure named in the statute.’ [Cits.] ‘Without proof of entry, a conviction for burglary cannot stand.’ [Cits.]” Maynard v. State, 170 Ga. App. 683, 684 (1) (317 SE2d 666) (1984). The evidence which was produced at trial as to appellants’ entry of the building, while circumstantial, was sufficient to establish that they had done so.

Appellants also urge that the evidence was insufficient to establish their intent to commit a theft in the premises. The evidence presented at trial showed that, among the other effects, there were items of gold and diamond jewelry located inside the premises. “The evidence reveals there were valuable effects in the building. The jury was authorized to infer from this that there was an intent to commit theft. [Cit.]” Bowen v. State, 128 Ga. App. 577 (1) (197 SE2d 738) (1973). See also Parrish v. State, 141 Ga. App. 631 (1) (234 SE2d 174) (1977). “ ‘Whether the defendant entertained an intent to commit a [theft] after entering is a matter for the jury to say, under the facts and circumstances proved. [Cit.] As a general rule the [S]tate must, of necessity, rely on circumstantial evidence in proving intent. [Cit.] And the fact that defendant may have failed in accomplishing his apparent purpose does not render a finding of burglary improper. [Cits.]’ [Cits.]” Kinney v. State, 155 Ga. App. 95-96 (1) (270 SE2d 209) (1980).

After a review of the entire record in the light most favorable to the verdict, we find that a rational trior of fact could reasonably have found from the evidence produced at trial, proof of appellants’ guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The trial court instructed the jury that it would be authorized but not required to infer an intent to steal from evidence which showed the unlawful entry of another’s building wherein valuables were stored or kept. The giving of this charge is enumerated as error. As previously discussed in Division 1, however, the instruction states a legally correct principle of the law and there was sufficient evidence presented at trial to authorize the giving of the instruction in this case. See Parrish v. State, supra at 631 (1); Bowen v. State, supra at 577 (1); Bradshaw v. State, 172 Ga. App. 330, 331 (2) (323 SE2d 253) (1984).

3. The trial court denied appellant Clark’s motion to suppress certain evidence which was found during a police search of his automobile on the night of the incident. The trial court’s denial of this motion is enumerated as error.

It is undisputed that appellant Clark was the owner of the automobile. However, the evidence also showed that he had loaned his car to a third party and was not in possession of the automobile at the time of the search. Where the owner of an automobile relinquishes actual possession to a third party, the owner thereby abandons any expectation of privacy in the automobile, and he therefore lacks standing to contest the legality of the search and seizure of the vehicle. See United States v. Nunn, 525 F2d 958, 959 (5th Cir. 1976). See also United States v. Dyar, 574 F2d 1385, 1390 (6) (5th Cir. 1978), cert. denied, 439 U. S. 982 (99 SC 570, 58 LE2d 653) (1978). Accordingly, the trial court correctly denied appellant Clark’s motion to suppress.

4. Appellant Clark enumerates as error the trial court’s admission of certain evidence.

There was no objection to the trial court’s admission of appellant Prothro’s shoes into evidence. No error can be raised on appeal as to the improper admission of evidence unless a proper objection has first been made at trial. Hicks v. State, 216 Ga. 574, 575 (1) (118 SE2d 364) (1961).

Appellant Clark did object to the admission of chips of a concrete block which were found on the floorboard of the back seat of his automobile. However, that objection consisted only of the bare assertion that the evidence was irrelevant. “An objection to evidence on the ground that it is irrelevant ... is ‘entirely too vague and general to present any question for determination by the trial court, and the overruling of this objection did not constitute reversible error. [Cits.]’ [Cit.] ‘(A) mere general objection to evidence that it is immaterial . . . is too general to present any question for decision. [Cit.]’ [Cit.]” Croom v. State, 165 Ga. App. 676, 677 (3) (302 SE2d 598) (1983). See also Harrison v. State, 120 Ga. App. 812, 816 (8) (172 SE2d 328) (1969).

Appellant Clark also objected to the admission of a glove which was found in close proximity to the site of appellants’ apprehension. The objection to the admission of this evidence was that there was nothing which would connect the glove either to appellants or to the crime they were alleged to have committed. However, the evidence presented at trial did show that appellant Clark had a glove in his possession on the night of the incident. The evidence also showed that the beading on the underside of the glove, which was covered with cement dust, matched the indentations left in the cement dust on top of the display case in the burglarized premises. “ ‘When facts are such that the jury, if permitted to hear them, may or may not make an inference pertinent to the issue, according to the view which they may take of them, in connection with the other facts in evidence, they are such that the jury ought to be permitted to hear them.’ [Cits.]. . . . ‘(W)here the relevancy or competency of evidence is doubtful, it should be admitted and its weight left to the determination of the jury.’ [Cits.]” Johnson v. State, 148 Ga. App. 702, 703 (1) (252 SE2d 205) (1979). The glove was sufficiently connected to appellants and to the crime to warrant its introduction into evidence. Appellant Clark’s enumeration is without merit.

Decided April 13, 1988.

Paul E. Weathington, for appellant (case no. 76014).

T. Christopher Pyles, for appellant (case no. 76015).

William G. Hamrick, Jr., District Attorney, Peter J. Skandalakis, Assistant District Attorney, for appellee.

Judgments affirmed.

Deen, P. J., and Sognier, J., concur.


source: Caselaw Access Project

author: Carley, Judge.

license: Public Domain

text:
    76038.
    MINCEY v. THE STATE.
    (368 SE2d 796)
   Carley, Judge.

Appellant was tried before a jury and found guilty of armed robbery and kidnapping. Appellant appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts.

1. The trial court’s denial of appellant’s motion for new trial on the general grounds is enumerated as error.

Appellant urges that the evidence did not authorize his armed robbery conviction, because the victim testified that the robber did not display a weapon but merely held an object underneath his shirt which the victim perceived to be a “silver” gun. OCGA § 16-8-41 (a) provides, in pertinent part: “A person commits the offense of armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article or device having the appearance of such weapon.” (Emphasis supplied.) The victim testified that, when appellant approached with his hand under his T-shirt, the victim was able to see silver metal which looked like a gun through a hole in appellant’s T-shirt and that appellant told him “not to touch nothing or I’ll shoot.” This testimony is sufficient evidence of appellant’s employment of “an offensive weapon ... or device having the appearance of such weapon.” OCGA § 16-8-41 (a). All of the elements of the crime of armed robbery were proven.

Appellant further urges that he could not be convicted of both kidnapping and armed robbery, because there was a merger of those offenses under the facts of this case. It has been held that the offenses of armed robbery and kidnapping can merge under certain factual situations. See Haynes v. State, 249 Ga. 119, 120 (2) (288 SE2d 185) (1982). There is, however, not an automatic merger simply because two offenses may arise from the same series of events. See Chambley v. State, 163 Ga. App. 502, 504 (2) (295 SE2d 166) (1982). The victim in the present case testified that, after appellant had put the money and cigarette cartons into a bag, appellant then instructed the victim “to come with him” and they exited the store. After leaving the store, the victim and appellant walked around the side of the store before appellant fled when an automobile stopped near them. “Since the kidnapping and the [armed] robbery were not the same as a matter of law or as a matter of fact, the trial court. . . correctly submitted the case to the jury with instructions on the law of kidnapping and [armed] robbery.” Chambley v. State, supra at 505 (2).

Following a review of the entire record, we find that, as to both armed robbery and kidnapping, a rational trior of fact could reasonably have found from the evidence produced at trial, proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Over appellant’s objection, the trial court admitted evidence of appellant’s commission of other crimes. The trial court’s ruling is enumerated as error, appellant’s contention being that the evidence erroneously placed his character in issue.

“ ‘The admissibility of “other crime” evidence is a matter determined by the trial court. [Cit.]’ [Cit.] The factors pertinent to a determination of the admissibility of the extrinsic crime are similarity, and relevance to the issues in the trial of the case. [Cits.] The prerequisite of evidence that the defendant was in fact the perpetrator of the independent crime ([cit.]) was met by the in-court identification^] of [appellant] as the perpetrator. . . . The ‘other crime’ evidence was properly admitted for the purpose of showing identity, motive, plan, scheme, bent of mind, and course of conduct. [Cit.]” Harris v. State, 255 Ga. 500, 502 (3) (340 SE2d 4) (1986). See also Marks v. State, 182 Ga. App. 846 (357 SE2d 299) (1987); Cline v. State, 178 Ga. App. 470, 473 (2) (343 SE2d 506) (1986). It follows that this enumeration is without merit.

3. A police officer testified that appellant was known to change his hairstyle frequently. Appellant moved for a mistrial, urging that his character had been placed into issue by this testimony. The denial of his motion for mistrial is enumerated as error.

There was conflicting testimony as to appellant’s hairstyle at the times of the commission of the crimes, as well as at the various stages of the investigation and of the prosecution. Accordingly, the testimony of the officer was relevant evidence and, if it placed appellant’s character into issue at all, it did so only incidentally. The testimony did not, therefore, impermissibly place appellant’s character in issue. See generally Friar v. State, 253 Ga. 87, 89 (3) (316 SE2d 466) (1984); Daniels v. State, 252 Ga. 30, 32 (6) (310 SE2d 904) (1984). See also Brown v. State, 257 Ga. 330, 331 (2) (357 SE2d 563) (1987).

Decided April 13, 1988.

Michael G. Schiavone, for appellant.

Spencer Lawton, Jr., District Attorney, Jeffrey T. Hendrix, Assistant District Attorney, for appellee.

4. The trial court sentenced appellant as a recidivist. Appellant enumerates his sentencing as error.

During the sentencing phase, the State proffered for admission into evidence certified copies of the three prior convictions, purportedly of appellant, which had been listed in the recidivist count of the indictment. Appellant objected on the ground that the State had a duty to prove that he was, in fact, the same person who was named in the proffered certified copies of conviction. “Appellant ‘presented no evidence contradicting that he was the person named in the [relevant] documents. “Concordance of name alone is some evidence of identity. [Cit.] Further, ‘in the absence of any denial by [appellant] and no proof to the contrary’ this concordance of name is sufficient to show that [appellant] and the [individual] previously convicted were the same person. [Cits.]” [Cit.]’ [Cit.]. Accordingly, this enumeration is without merit.” Glass v. State, 181 Ga. App. 448 (1) (352 SE2d 642) (1987).

Appellant further urges in support of this enumeration that the proffered prior convictions were based upon guilty pleas and the State failed to prove that those pleas had been intelligently and voluntarily made. “[Ofnce the defendant raises the issue of intelligent and voluntary waiver with respect to prior guilty pleas, the burden is on the [S]tate to establish a valid waiver.” (Emphasis supplied.) Pope v. State, 256 Ga. 195, 209 (17) (345 SE2d 831) (1986). However, appellant did not raise this issue in the trial court. “Issues which were not raised in the trial court cannot be raised for the first time on appeal. [Cit.]” Johnston v. State, 178 Ga. App. 219, 222 (4) (342 SE2d 706) (1986).

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.


author: Banke, Presiding Judge.

text:
    76209.
    KARR v. RYBACK et al.
    (368 SE2d 799)
   Banke, Presiding Judge.

The appellees sued to enjoin the appellant from foreclosing on certain real property which the appellees had previously purchased from the appellant subject to a purchase money security deed. The appellant counterclaimed to recover the accelerated balance due under the note, plus a 15-percent attorney fee. Additionally, the appellant sought to collect a separate $586 indebtedness allegedly due him for certain repairs he had made to the property.

The claim for injunctive relief was resolved prior to trial and is not at issue in this appeal. At the conclusion of a bench trial, the court found that the appellees had wrongfully withheld certain payments due under the terms of the note and awarded the appellant the amount of these payments; however, the court ruled against the appellant on his claims to recover the accelerated balance of the remaining payments, the requested attorney fees, and the alleged indebtedness for the repairs. Held:

1. We must agree with the appellant that the trial court erred in failing to award him a 15-percent attorney fee pursuant to the terms of the promissory note. It appears without dispute from the record that all of the pre-conditions for such a recovery set forth in OCGA § 13-1-11 were met. Consequently, the appellant’s entitlement to such a recovery was established as a matter of law. See Dozier v. Wallace, 169 Ga. App. 126, 131 (6) (311 SE2d 839) (1983).

2. The appellant further contends that the trial court erred in awarding him only the amount of the past-due payments owed by the appellees, without also awarding him the accelerated balance of the remaining payments. Under the terms of the note, the appellant was authorized, upon default by the appellees, to declare the unpaid principal balance due. Because the trial court found in favor of the appellant and against the appellees with respect to the past-due payments, it necessarily follows that the appellant was entitled to accelerate and collect the remaining payments (with appropriate reductions for unearned interest) as a matter of law.

3. The appellant contends that the court erred in failing to award him the requested $586 for the repairs he had made to the property. The court specifically found that the appellant was not entitled to recover on this claim; and as this ruling was based upon conflicting evidence concerning the repairs, it follows that this enumeration of error is without merit.

4. Appellee Ryback asserts in a pro se responsive brief that the trial court erred in finding that he was indebted to the appellant for post-acceleration interest on the accelerated balance. However, we are unable to address this assertion since no cross-appeal was filed. See generally OCGA § 5-6-38. Although the Georgia Supreme Court, in Georgia Society of Plastic Surgeons v. Anderson, 257 Ga. 710, 711 (363 SE2d 140) (1987), recently held that a cross-appeal is not required to raise an asserted error which “becomes material to an enumeration of error urged by an appellant. . . ,” that situation does not present itself in this case. Therefore, the asserted error raised by appellee Ryback presents nothing for review.

Decided April 13, 1988.

Gary C. Harris, for appellant.

David Ryback, J. R. Sailing, pro se.

5. For the above-stated reasons, the judgment of the trial court is vacated with direction that a new judgment be entered awarding the appellant, in addition to the past-due mortgage payments, the accelerated balance of the remaining payments due under the note, plus attorney fees in the amount of 15 percent of the total recovery on the note.

Judgment vacated and reversed in part with direction.

Birdsong, C. J., and Beasley, J., concur.


author: Sognier, Judge.

text:
    75887.
    DIXON et al. v. BORG-WARNER ACCEPTANCE CORPORATION.
    (368 SE2d 800)
   Sognier, Judge.

Borg-Warner Acceptance Corporation brought suit against A. David Dixon, Jane B. Dixon, and Norcross Marine, Inc., to recover sums owed it under an inventory financing agreement. The jury returned a verdict in favor of Borg-Warner for $23,000, and the Dixons and Norcross Marine appeal from the denial of their motions for judgment notwithstanding the verdict and for a new trial.

The record reveals that Norcross Marine entered into an inventory financing agreement with appellee whereby appellee agreed to finance the purchase of boats, trailers and accessories for resale. The Dixons signed personal guarantees for payment of the sums advanced under the agreement. Under the terms of the agreement, appellee acquired a security interest in each item financed, which terminated when Norcross Marine sold the merchandise and paid over to appellee, from the proceeds of the sale, the amount of its indebtedness as to that item.

During a regular field inspection at Norcross Marine, appellee discovered that some merchandise it had financed was no longer on the showroom floor, although the indebtedness had not been paid on those items. Appellee concluded that these items had been sold “out of trust,” i.e., that appellants had sold the merchandise without turning over to appellee that portion of the proceeds representing appellants’ debt to appellee as to that item. Appellee brought suit against appellants for the entire outstanding balance under the financing agreement, and the trial court entered an order granting appellee an immediate writ of possession unless appellants paid into the registry of the court the entire remaining indebtedness. When appellants were unable to do so, appellee repossessed all inventory remaining in the showroom as to which it had a security interest and resold the inventory to the manufacturers of the goods. Since the repurchase price completely covered appellants’ debt to appellee as to the repossessed inventory, appellee thereafter amended its complaint to reflect the reduction in the amount of the indebtedness, in essence seeking recovery only for the amount due on those items sold “out of trust” before the repossession.

Appellants contend the trial court erred by denying their motions for a directed verdict and for judgment n.o.v. because appellee failed to prove its sale of the repossessed merchandise back to the manufacturers was commercially reasonable, and because appellee failed to overcome the presumption that the value of the collateral equals the amount of the debt owed. We find no merit in appellants’ arguments. The principles asserted by appellants apply when the secured party sells repossessed collateral and looks to the debtor for any deficiency. OCGA § 11-9-504 (2). While we agree with appellants that it is generally true that “every aspect of the disposition including the method, manner, time, place, and terms must be commercially reasonable,” OCGA § 11-9-504 (3), and that the burden is on the creditor to overcome the presumption that the value of the collateral equals the debt on it, see Farmers Bank v. Hubbard, 247 Ga. 431, 436 (276 SE2d 622) (1981), we do not agree with appellants that the damages sought by appellee in the case sub judice were a claim for a “deficiency,” as contemplated by OCGA § 11-9-504 (2). Although appellee did claim to be seeking a “deficiency” in its complaint, the complaint was superseded by the pretrial order, see OCGA § 9-11-16 (b), in which appellee’s claim for damages, as further indicated by the proof presented at trial, addressed recovery only of sums for the goods sold “out of trust.” Since the evidence showed the sum sought represented the amount advanced to appellants on those inventory items which could not be repossessed because they had been sold “out of trust,” and since these items were not, and could not have been, repossessed by appellee, we agree with appellee that no deficiency was sought, and OCGA § 11-9-504, dealing with a secured party’s rights and obligations when retaking collateral after default, is not applicable to the facts of this case.

Decided April 14, 1988.

V. Lee Thompson, Jr., for appellants.

J. Loren Fowler, for appellee.

Appellants argue in their brief on appeal that appellee had a blanket security interest in all inventory, rather than separate security agreements as to each item, and consequently the repossessed items cannot be considered separately from the items sold “out of trust” in deciding whether a deficiency existed. Although this reasoning is similar to that advanced in our opinion in C. Itoh Indus. Machinery v. Forklift Svc. Co., 180 Ga. App. 125 (348 SE2d 551) (1986), aff’d 256 Ga. 757 (354 SE2d 159) we note that appellants failed to raise this issue below, and “ ‘[a] ground not mentioned in a motion for directed verdict cannot thereafter be raised on appeal. [Cits.]’ [Cits.]” Grabowski v. Radiology Assoc., 181 Ga. App. 298, 299-300 (352 SE2d 185) (1986). Accordingly, we find no merit in appellants’ enumerations of error.

Judgment affirmed.

Been, P. J., and Carley, J., concur.


author: Birdsong, Chief Judge.

text:
    75968.
    YARBROUGH v. THE STATE.
    (368 SE2d 802)
   Birdsong, Chief Judge.

Jessie Lee Yarbrough, the appellant, brings this appeal from his conviction of two counts of kidnapping, one count of aggravated battery by maliciously causing bodily harm to Melvin Turney with a knife, thereby causing the loss of a kidney and limited use of his left leg, one count of criminal trespass, and one count of possession of a firearm during the commission of a crime.

From the evidence offered during trial, the jury was authorized to find that Yarbrough entered the business premises of Melvin Turney in Valdosta, Georgia, on December 29, 1986, and pointed a pistol at him demanding that Turney take him to Turney’s house where Yarbrough’s wife Shirley and their two children were then living. Turney’s secretary, Jean Courson, came from her office and she also was confronted by Yarbrough with a gun, saying: “This is kidnap [sic] . . . you both are going with me . . . and let me warn you that I have killed two people, and I will not hesitate to do it again.” Yarbrough pulled the phone out of the wall. Turney saw something wrapped around Yarbrough’s waist, and Yarbrough told him: “I’ve got a bomb on me. If I fall down, it will blow the house up, so don’t try anything.” Turney, Courson and Yarbrough drove to Turney’s house where his granddaughter, Shirley Yarbrough, and her two daughters had been staying since they left Yarbrough’s home in Gulfport, Mississippi.

When Yarbrough entered Turney’s home, he exhibited two guns and informed the people there that he had attempted to get the church to administer last rites to him but they had refused, so he was going to give himself last rites. He had his wife kneel down with him and they said the Lord’s Prayer together and then Yarbrough crossed himself. Following this “he pulled out a hit list that he had, a piece of paper with all our names on it . . . there [were] fourteen names, [Turney’s] whole family, including . . . great-grandchildren, his children, all of them, and there was no doubt in [Turney’s] mind what he was intending to do at that point.” Yarbrough’s wife went to him, hugged him and kissed him, and then grabbed his two guns and told him “not to move, [she] would kill him if he moved a muscle.” Yarbrough picked up one of their children and placed the child between himself and his wife. Mrs. Yarbrough gave one of the guns to Turney. Yarbrough wrestled with his wife for the gun and Turney used his gun to strike Yarbrough over the head. Mrs. Courson put a headlock on Yarbrough and Mrs. Turney started striking Yarbrough on the head with her fist. Yarbrough removed a knife from his clothing and stabbed Turney several times in the side and back. Mrs. Courson ran to a nearby house and asked the neighbor to call the police. Mrs. Yarbrough ran into the street and stopped a passing motorist, a serviceman from the Air Force base. He stayed with her and waited for Yarbrough while another motorist called the police. The police came and Yarbrough surrendered himself to them.

Yarbrough testified that he talked to Turney at his store to get him to take him to his wife and children and that he did not display any weapon. Courson and Turney voluntarily accompanied him to Turney’s home. He intended to ask his wife to come home, or let him take the children for a visit, and in the event of refusal he had taken only one gun with him and he was going to kill himself. After his wife refused to join him, he took 16 “Halycin” pills, prescribed for him by his doctor for his heart. The pills should have killed him, but he took his gun out in case the pills did not take effect. After taking his gun out, he was struck from behind, apparently by Turney with a gun, and he could remember nothing more. He did not remember stabbing Turney. The jury found Yarbrough guilty of five of the eight counts charged. He has filed this appeal. Held:

Although appellant has filed six separate enumerations of error, each addresses the same issue — the admission in evidence of the so-called “hit list.” Appellant has failed to follow the Rules of this court and has combined his argument in one continuous sequence as to all enumerations. See Rule 15 (c) (1), Rules of the Court of Appeals; see also Ehlers v. Schwall & Heuett, 177 Ga. App. 548, 550 (340 SE2d 207).

Decided April 14, 1988.

Jesse T. Edwards, for appellant.

H. Lamar Cole, District Attorney, J. David Miller, Assistant District Attorney, for appellee.

The State introduced testimony of the “hit list” because Yarbrough read it to his victims. Mrs. Courson said the appellant told her she was a nice lady but “he got out a hit list out of his pocket, and he began to read the names ... he included me as number one” and said “I’m going to get them.” Turney testified that Yarbrough explained that he “didn’t have Mrs. Courson’s name on the list. . . but she got mixed up accidentally . . . [she’s] in here now and there’s nothing I can do.” Yarbrough’s wife also testified to his reading “a hit list because it had every name of my family on it. . . . He read off about fourteen names. ...” Yarbrough told her “we were all going to be blown up, not to move, he would shoot us . . . and that [he] had cut the bullets and had put cyanide in them, so even if it didn’t [sic] graze him he was going to be dead anyway one way or the other. . . .” This testimony of the witnesses involved statements made by Yarbrough during the commission of these offenses and was an integral part of the res gestae. See OCGA § 24-3-3.

Generally, in the prosecution for a particular offense, evidence of another distinct crime, wholly independent from that which the accused is on trial is inadmissible, but if the allegedly separate offense was a part of the same incident for which the accused is being tried and forms a part of the res gestae, it is admissible. Burger v. State, 242 Ga. 28, 32 (247 SE2d 834); Wood v. State, 234 Ga. 758, 760 (218 SE2d 47); King v. State, 230 Ga. 581 (2) (198 SE2d 305); Richards v. State, 157 Ga. App. 601 (1) (278 SE2d 63).

The fact that such part of the res gestae incidentally placed defendant’s character in issue does not render it inadmissible. Presley v. State, 177 Ga. App. 611 (2) (a) (340 SE2d 253); Mosley v. State, 150 Ga. App. 802, 804 (258 SE2d 608). The trial court did not err in admitting evidence of the testimony of appellant as to his list of intended victims, and in refusing appellant’s motion for mistrial.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


author: Deen, Presiding Judge.

text:
    76267.
    JACKSON v. THE STATE.
    (368 SE2d 771)
   Deen, Presiding Judge.

The appellant, Austin Jackson, was convicted of voluntary manslaughter, possession of a firearm by a convicted felon, carrying a concealed weapon, and carrying a pistol without a license. On appeal, in addition to asserting the general grounds, Jackson contends that the trial court erred in allowing the testimony of a state rebuttal witness whose name was not on the witness list and who violated the rule of sequestration. Held:

Decided April 4, 1988

Rehearing denied April 15, 1988.

Robert G. Rubin, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, A. Thomas Jones, Richard E. Hicks, Assistant District Attorneys, for appellee.

1. The state called a witness in rebuttal of Jackson’s testimony. Jackson objected to the admission of this witness’ testimony, but only upon the grounds that (1) the witness had been in the courtroom during the trial in violation of the rule of sequestration, and (2) the witness was too drunk to testify in any event. Accordingly, we will not consider Jackson’s present contention that the testimony should have been excluded because the witness’s name was not included in the list of witnesses furnished pursuant to OCGA § 17-7-110, which is raised for the first time on appeal. Proffitt v. State, 181 Ga. App. 564, 566 (353 SE2d 61) (1987).

2. Jackson also contends that the witness’ testimony should have been excluded because of the witness’ violation of the rule of sequestration. However, violation of the sequestration rule may affect the weight and credibility of the offending witness, but it does not render that witness incompetent to testify. Bradford v. State, 182 Ga. App. 337 (6) (355 SE2d 735) (1987).

3. After the expiration of the time allowed for filing his original brief and enumeration of errors, Jackson filed a supplementary brief that contains additional enumerations of error. “Enumerations of error may not be amended after the time for filing has expired. Burke v. State, 153 Ga. App. 769 (266 SE2d 549) (1980). We cannot consider the arguments contained in the amended brief because they do not pertain to the original enumeration of error. An enumeration of error may not be enlarged by brief on appeal to cover issues not contained in the original enumeration. [Cit.]” Scott v. State, 177 Ga. App. 474, 477 (339 SE2d 718) (1986).

4. Viewing the evidence in the light most favorable to the verdict, we conclude that the evidence authorized a rational trier of fact to find Jackson guilty beyond a reasonable doubt. Jackson v. State, 182 Ga. App. 826 (357 SE2d 143) (1987).

Judgment affirmed.

Carley and Sognier, JJ., concur.


author: Sognier, Judge. Deen, Presiding Judge,

text:
    75904.
    LEE v. THE STATE.
    (368 SE2d 804)
   Sognier, Judge.

Appellant was convicted of eight counts of child molestation, involving three different children, and he appeals.

1. Appellant contends the trial court erred by denying his motion for a mistrial after the State improperly put appellant’s character in issue. This issue arose when one of the victims, an eleven-year-old boy, was asked by the prosecuting attorney on direct examination when the victim moved away from Benjamin Street. The witness answered: “When my daddy [appellant] got put in jail.” Appellant moved immediately for a mistrial, and the motion was overruled. The court declined to give any curative instructions at the time, in order to allow the State an opportunity to show that appellant was in jail on these charges, and was not in jail on any other charges. The court also noted that it was apparent the State had not sought to elicit the response, and was without fault as to what occurred. Subsequently, the State established that appellant was arrested and put in jail on these charges on July 14, 1986, while living on Benjamin Street, where he had lived with his children for several months prior to his arrest. Appellant renewed his motion for a mistrial on the ground that the State had not presented evidence negating an inference that appellant was in jail on other charges. The motion was denied, and the court charged the jury, in pertinent part: “Now, the State concedes and the Court recognizes that there is no evidence in this case whatsoever that the defendant was ever in jail other than as a result of being arrested for the particular offenses involved in and named in this indictment. You will not consider his being in jail as referring to anything other than his being in jail as a result of an arrest made for the particular offenses listed in this indictment and you will not consider that evidence that the defendant has been in jail as in any way hurtful to the defendant in this case.” Appellant’s objection to the charge was overruled, and his renewed motion for a mistrial was denied.

The offenses in this case were alleged to have occurred during the period from September 1, 1985, to July 7,1986. After the last incident on July 7th, the female victim told her mother what appellant had done to her. The mother then reported the incidents to local authorities, and after they interviewed the three victims, appellant was arrested and put in jail on July 14, 1986. The arresting officer testified that until appellant was arrested and jailed he had been, living with his children on Benjamin Street for several months. Two of the victims testified they moved away from Benjamin Street when appellant was put in jail. Since the incidents occurred while the victims were living on Benjamin Street, the only inference to be drawn from the evidence is that appellant was in jail as a result of the offenses charged in this case, and not for some other reason.

Granting or denying a motion for mistrial is a matter largely within the discretion of the trial judge, and such discretion will not be interfered with unless it is apparent that a mistrial is essential to preserving the right to a fair trial. Ladson v. State, 248 Ga. 470, 478 (12) (285 SE2d 508) (1981); Eaton v. State, 184 Ga. App. 645, 647 (2) (362 SE2d 375) (1987). Under the circumstances of this case, we find no abuse of the trial court’s discretion. It is clear that the answer of the young victim was not responsive to the question asked, but was an attempt by the witness to relate the time of his move from Benjamin Street to a particular event. Further, there was absolutely no evidence that appellant was in jail for any reason other than as a result of the charges in this case. The jury was instructed that the fact appellant was in jail could not be used in any way “hurtful” to him, which we interpret as meaning that such evidence could not be used against him. Accordingly, we find no error in denial of appellant’s motion for a mistrial.

2. Appellant also moved for a mistrial on the ground that the charge quoted in Division 1 was an expression of opinion on the evidence by the court, and thus, violated OCGA § 17-8-57. This enumeration of error is without merit.

The court’s instruction was not an expression of opinion by the court, but was a statement of facts in evidence, namely, that appellant was in jail for the offenses charged, and that there was no evidence whatsoever that he was ever in jail for any other reason. Thus, appellant’s enumeration of error is not supported by the transcript, and this court cannot consider factual representations in a brief which are not supported by the record. McCutchen v. State, 177 Ga. App. 719, 722 (3) (341 SE2d 260) (1986).

Judgment affirmed.

Carley, J., concurs. Deen, P. J., concurs specially.

Deen, Presiding Judge,

concurring specially.

This case involves several counts of child molestation. Appellant was convicted of eight counts, the facts demonstrating a type of planned, protracted pattern or program of forced group sexual activity or a wild mass orgy, combinations of male child and adult woman, and himself and female child, affecting and involving the lives of three different children. In such criminal cases of physical and mental sexual abuse or molestation, as in this case, exposition of the lurid

Decided April 15, 1988.

Larry B. Mims, for appellant.

David E. Perry, District Attorney, for appellee.

facts, when reasonably necessary for a proper view in determination of an appeal, is the proper business of this court. Compare Howell v. State, 172 Ga. App. 805 (324 SE2d 754) (1984), where the pushing of drugs, procurement of pornographic promiscuity, and a type of pedophile profile of Pied Piper rounding up of little children for sexual abuse was involved. Also see Kornegay v. State, 174 Ga. App. 279 (329 SE2d 601) (1985), a whole court case, in which the inflammatory racial remarks had to be spelled out in the opinion for a clear understanding of what actually transpired during the trial in the court below. By including at least a minimum of facts in our important reported cases such as this we provide some type of strength and future guidance, keeping in mind a former Chief Justice’s lament that “most of our [obscenity] decisions . . . have been given without opinion and have thus failed to furnish . . . guidance.” Jacobellis v. Ohio, 378 U. S. 184, 200 (84 SC 1676, 12 LE2d 793) (1964).


text:
    76049.
    COLLINS et al. v. WEST AMERICAN INSURANCE COMPANY.
    (368 SE2d 772)
   Banke, Presiding Judge.

On May 22,1986, the appellants filed an action against the appellee insurance company in the United States District Court for the Eastern District of Tennessee, seeking to recover certain casualty insurance benefits allegedly due them as the result of a fire which occurred on May 24, 1985. On September 24, 1986, the federal court dismissed the action for lack of subject-matter jurisdiction; and on March 23, 1987, the appellants refiled their claim in the Superior Court of Walker County, invoking the renewal statute, OCGA § 9-2-61, to avoid the bar of a one-year limitation period set forth in the contract. The trial court awarded the insurer summary judgment, concluding that the contractual claim was barred by the one-year limitation and rejecting on the merits an additional claim by the appellants that the appellee had wrongfully interfered with their contractual rights under the policy by the manner in which it had discharged its separate obligations to the mortgagees of the property in question. This appeal followed. Held:

1. The policy provides: “No action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss.” The appellants argue that because the word “commenced” is normally used in such a policy provision rather than the word “started,” the above language is ambiguous and of no effect. We disagree.

2. The trial court granted summary judgment to the appellee on the contract claim based on its conclusion that the renewal statute applied only to statutory, as opposed to contractual, limitation periods. This court, in Blue Ridge Ins. Co. v. Maddox, 185 Ga. App. 153 (363 SE2d 595) (1987), subsequently held to the contrary, overruling the cases relied upon by the trial court. However, the appellee asserts that the trial court’s ruling was nevertheless correct because the federal court action was never a valid pending action. We agree.

“OCGA § 9-2-61 applies only if the original suit is a valid suit, but will not apply if the original suit is void.” Hornsby v. Hancock, 165 Ga. App. 543, 544 (301 SE2d 900) (1983). It has been held that where a court does not have jurisdiction of the subject matter, “the whole proceeding is . . . void.” Deans v. Deans, 164 Ga. 162, 164 (137 SE 829) (1927). It follows that the renewal statute does not apply, with the result that the contractual claim is barred by the one-year limitation provision.

3. The appellants also contend that the court improperly granted summary judgment against them on their tortious interference claim. This claim was based on allegations that the appellee knowingly underpaid the mortgagees for the cost of repairing the structure, leaving a $17,000 deficiency. The contract contains a standard mortgage clause, which “creates a separate contractual relationship between the insurer and the mortgagee. . . .” Fortson v. Cotton States Mut. Ins. Co., 168 Ga. App. 155 (308 SE2d 382) (1983). The record reflects that the mortgagees reached an agreement with the appellee concerning the cost of making the necessary repairs and paid them pursuant to this agreement. In their affidavits opposing the summary judgment motion, the appellants merely reasserted their allegations that the appellee had interfered with their contractual rights by not paying a greater sum of money to the mortgagees. Assuming arguendo that the insurer did not pay the mortgagees the amount actually required to repair the premises, it is not apparent how this would translate into tortious interference with the appellants’ contractual rights. It is axiomatic that “conclusory allegations by way of an affidavit. . . will not be sufficient to avoid summary judgment.” Swanson v. Lockheed Aircraft Corp., 181 Ga. App. 876, 879 (354 SE2d 204) (1987). Consequently, the trial court did not err in granting summary judgment to the appellee on the tort claim.

Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.

Decided April 4, 1988

Rehearing denied April 18, 1988

Larry D. Ruskaup, for appellants.

John D. Barry, for appellee.


text:
    76132, 76133.
    FRANKLYN GESNER FINE PAINTINGS, INC. v. KETCHAM.
    (368 SE2d 774)
   Deen, Presiding Judge.

Appellee sold a painting to appellant, representing it to be the work of a certain artist. When it was determined to be a forgery, appellant sued appellee on the theories of fraud, breach of contract, and conspiracy. The conspiracy count was dismissed at trial.

A jury returned a verdict for plaintiff/appellant on the fraud count, assessing general damages of $32,500, punitive damages of $6,263, and attorney fees of $31,337; no finding was made on the breach of contract count. When queried by the court, the foreman stated that it had been the jurors’ understanding that it was not necessary to make a finding on both counts. The court, outside the jurors’ presence, inquired of counsel for both parties whether there was objection to-the absence of a finding on the contract count, and both replied that they had no objection. Appellee had unsuccessfully moved for a directed verdict on the fraud claim.

On appeal this court reversed, finding insufficient evidence of fraud to authorize the issue to be submitted to a jury. Alleging that the contract claim had never been tried on its merits, appellant filed a motion to set aside the remittitur or for new trial; this was denied. A second motion to set aside also was denied. In Case No. 76132 the denial of the first motion is appealed; in Case No. 76133 the appeal is from the denial of the second. Appellee has filed motions to dismiss both appeals, alleging in both motions that appellant was obliged to follow the discretionary appeal procedure and has not done so. Held:

Decided April 4, 1988

Rehearing denied April 18, 1988

Harmon W. Caldwell, Jr., Harry W. MacDougald, Wade H. Watson III, for appellant.

John K. Dunlap, for appellee.

Our review of the records of the cases sub judice and of relevant law leads us to the conclusion that this Court is without jurisdiction to hear the instant appeals. The denial of an extraordinary motion for new trial — i.e., a motion made more than thirty days after entry of judgment — is among the classes of cases which are not directly appealable but require utilization of the discretionary appeal procedure. OCGA §§ 5-5-41; 5-6-35 (a) (7); Davis v. State, 182 Ga. App. 736 (356 SE2d 762) (1987). Likewise, the denial of a motion to set aside judgment must also be appealed through the discretionary procedure. OCGA § 5-6-35 (a) (8); Denney v. Shield Ins. Co., 183 Ga. App. 280 (358 SE2d 628) (1987). The provisions of OCGA § 9-11-60 (g) are not applicable in the procedural posture of the cases at bar. Moreover, the requirements of OCGA § 5-6-35 are jurisdictional, and the appellate courts cannot accept an appeal not made in compliance with the statutory requirements. Hogan v. Taylor County Bd. of Education, 157 Ga. App. 680 (278 SE2d 106) (1981).

Appeals dismissed.

Sognier, J., concurs. Carley, J., concurs in the judgment only.

       This case has previously been heard in this court three times and in the Supreme Court once, as follows: (1) Ketcham v. Franklyn Gesner Fine Paintings, 169 Ga. App. 329 (312 SE2d 639) (1983); (2) Franklyn Gesner Fine Paintings v. Ketcham, 252 Ga. 537 (314 SE2d 903) (1984); (3) Ketcham v. Franklyn Gesner Fine Paintings, 171 Ga. App. 377 (320 SE2d 640) (1984); (4) Ketcham v. Franklyn Gesner Fine Paintings, 181 Ga. App. 549 (353 SE2d 44) (1987). In its initial appearance (# (1), supra), a 6-3 whole-court case, this court reversed the trial court’s granting of a motion to substitute, and denial of a motion to strike the substitution and dismiss the action against Franklyn Gesner. The Supreme Court in # (2), supra, reversed this court, and overruled and declined to follow certain cases standing for the proposition that it is prohibited to amend to change from the party first named to the party intended to be named, where the former does in fact exist. In the latter case the amendment was held to amount to the addition of a new party or change of parties. In # (3), supra, the judgment of the Supreme Court was adopted as that of this court. Finally, in # (4), supra, this court reversed the trial court’s failure to grant a directed verdict on the fraud and deceit count, holding that there was no evidence regarding the essential elements of fraud.


text:
    76304.
    LEONAITIS v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (368 SE2d 775)
   Deen, Presiding Judge.

On September 14, 1980, appellant, who was president and majority stockholder of Ardex, Ltd., was involved in an automobile accident which left him disabled for approximately ten months. During his disability period he received $2,604.92 in loss of income benefits under an insurance policy issued by Southern Guaranty Insurance Co., and $24,969.96 as 85 percent loss of income benefits as required by OCGA § 33-34-5 (a) (B) under his automobile insurance policy with State Farm. He brought an action against State Farm, contending that as 80 percent shareholder of Ardex, he was entitled to receive 80 percent of the net operating income of Ardex and that a reduction in the retained earnings of the corporation as calculated one year after the accident should justify a further payment of $16,447.84. His salary from Ardex for the previous year, which he alone determined annually, was approximately $40,000. There is no evidence that he received income from any source other than his salary. Summary judgment was granted in favor of the insurance company, and Leonaitis appeals.

1. The trial court did not err in denying appellant’s motion in limine requesting an order that evidence of the reduction in earnings of the corporation owned and operated by him is admissible as evidence of his true loss of income. To grant appellant’s request the court would have to disregard the existence of the corporate entity. Appellant chose to operate his business in corporate form and to pay himself a salary as his share of the corporate income. His reliance upon Smith v. State Farm &c. Ins. Co., 152 Ga. App. 825 (264 SE2d 296) (1979), is misplaced, as this court’s holding that there was evidence that a jury could find that certain earnings of appellant’s late husband’s business could be found to be attributed to her was reversed by the Supreme Court at 245 Ga. 654 (266 SE2d 505) (1980). Moreover, in that case, the business was not operated in corporate form, and the net profits from the business were deposited into a joint checking account.

2. Summary judgment in favor of appellee was proper simply because appellant failed to come forward with any evidence beyond his bare allegations, in the complaint and in his affidavit, that he had any other income on the date of his accident, which would be covered under the policy issued by appellee. In support of its motion for summary judgment, appellee showed that it was undisputed that at the time of the accident, appellant was a salaried employee of Ardex, Ltd., and that appellee had paid appellant 85 percent of his salary from that corporation during his period of disability. Appellee further contended that appellant had not established any other loss of income in a legally sufficient manner. Although appellant stated in his affidavit submitted in opposition to the motion for summary judgment that at the time of the accident he was engaged in various personal and family business matters from which he earned income, he testified at his deposition that he never submitted any documents to appellee to substantiate this claim, and admitted in his deposition testimony that it would be very difficult for him to say what his losses actually were. Further, the record contains no evidence substantiating appellant’s claim of income loss beyond his salary from Ardex. Although it is true that “[o]n motion for summary judgment, the burden of establishing the non-existence of any genuine issue of fact is upon the moving party,” Evans v. Bibb Co., 178 Ga. App. 139 (1) (342 SE2d 484) (1986), “ ‘[t]he burden of proof is shifted when the moving party makes a prima facie showing that it is entitled to judgment as a matter of law. At that time the opposing party must come forward with rebuttal evidence or suffer judgment against him. [Cit.]’ [Cit.]” Stipp v. Bailey, 181 Ga. App. 555, 556 (353 SE2d 52) (1987). “An affidavit containing only contentions and conclusions without reference to any factual basis is insufficient to demonstrate the [existence] of a genuine issue as to any material fact.” Toco Hills v. Rollins Protective &c. Co., 179 Ga. App. 823, 826 (1) (348 SE2d 65) (1986). “Under the Georgia Civil Practice Act, a mere assertion that there is an issue of material fact, without more, is insufficient basis upon which to oppose an otherwise appropriate motion for summary judgment.” Hunnicutt v. Hunnicutt, 180 Ga. App. 798, 801 (3) (350 SE2d 770) (1986).

Decided April 4, 1988

Rehearing denied April 18, 1988

Gregson T. Haan, John G. McCullough, for appellant.

Thomas D. Harper, for appellee.

The claimant must “establish with reasonable certainty his entitlement to benefits for loss of income or earnings during the period of his disability by showing that he had ‘accepted an offer of income-generating employment or (has had) a continuous pattern of employment prior to the period of disability.’ [Cit.]” Midland Ins. Co. v. West, 175 Ga. App. 419, 421 (333 SE2d 628) (1985); Insurance Co. of North America v. Smith, 183 Ga. App. 266 (358 SE2d 658) (1987). Appellant has failed to show with a reasonable certainty that he was entitled to any part of the retained earnings as “loss of income or earnings” as required under OCGA § 33-34-5 (a) (1) (B). There is no evidence of dividend payments during the existence of the corporation; his only compensation from Ardex was in the form of salary.

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    75913, 75914.
    KOPPAR CORPORATION v. ROBERTSON et al.; and vice versa.
    (368 SE2d 807)
   Sognier, Judge.

Jerry Lee and Christa M. Robertson filed an action against Koppar Corporation alleging breach of warranty, fraud and misrepresentation in the sale of a house and lot to them, in that the location of a Georgia Power easement situated on the property was incorrectly represented to them. The trial court granted Koppar’s motion for a directed verdict as to fraud, and the jury returned a verdict in favor of the Robertsons in the amount of $13,737 for diminution in value of the property, plus survey expenses and reasonable attorney fees to be determined by the court. Judgment was entered thereon, with the court awarding $7,088.50 in attorney fees. Koppar’s motion for new trial was denied, and all parties appeal.

The record reveals that at the closing, the Robertsons were given a warranty deed which incorporated by reference a plat of the property recorded in the Clayton County Superior Court records at Book 17, Page 117. However, the copy of the plat which Koppar provided to the Robertsons at closing (marked Book 17 Page 117) was not, in actuality, a copy of the plat recorded in the Clayton County Superior Court records. Rather, the plat provided by Koppar at closing showed the easement as being located approximately 50 feet behind the house, whereas the recorded plat makes clear that the easement is actually located less than 20 feet from the house.

1. In the main appeal, Koppar contends the trial court erred by instructing the jury extensively on the issue of fraud, despite having removed that issue from the jury’s consideration by granting Koppar’s motion for a directed verdict. The Robertsons argue that it is not clear that the trial court granted the directed verdict as to fraud, rather than only as to punitive damages. However, the record does not support the Robertsons’ argument on this point. Originally, the trial court announced that “the motion concerning punitive damages, fraud — based on fraud is granted. The case proceeds as any other controversy concerning damage to real estate would proceed.” After that announcement, counsel for the Robertsons requested clarification, and asked the court whether he was “to understand the Court that . . . the Court is granting the motion for directed verdict on all issue [s] of fraud and misrepresentation,” to which the Court replied “[y]es, there is no evidence of fraud or misrepresentation.” Thus, we cannot agree with the Robertsons that the trial court did not grant the directed verdict as to fraud.

We do not agree with the Robertsons’ second argument that Koppar is barred from raising as error in this court the trial court’s numerous and extensive charges on fraud because Koppar did not properly object to these charges below. Failure to object to a charge at the charge conference does not preclude a party from objecting to the charge when it is given. Turner v. Malone, 176 Ga. App. 132, 134 (4) (335 SE2d 404) (1985). See also OCGA § 5-5-24 (a). The court informed the parties that it would give all charges requested by the Robertsons with the exception of “the punitive damages charges.” We agree with Koppar that since the trial court had previously granted its motion for a directed verdict as to fraud, and since charges concerning fraud might naturally be taken to mean “punitive damages charges,” Koppar need not have anticipated that the trial court would instruct the jury as to fraud. When the charge given by the trial court did include numerous references to fraud, its elements and its consequences, Koppar made specific objection at that time. We find this objection sufficient and timely.

Turning to the merits of Koppar’s enumeration of error, the record reveals that the trial court removed the issue of fraud from the jury because of its finding that the evidence was insufficient to allow the jury to consider it (see Division 4, infra), yet the trial court’s charge on fraud squarely presented that issue for jury determination. We cannot say that charging the jury concerning fraud did not confuse them as to whether the issue of fraud was to be considered by them. “ ‘A charge which injects into the case and submits for the jury’s consideration issues not made by the pleadings or the evidence tends to confuse the jury as to the true issue in the case, is probably harmful to the defendant, and is error requiring the grant of a new trial.’ [Cit.]” Myers v. Johnson, 113 Ga. App. 648, 653 (5) (149 SE2d 378) (1966). Accordingly, the trial court’s denial of appellant’s motion for a new trial is reversed, and this case is remanded to the trial court for a new trial. See Jones v. Davis, 183 Ga. App. 401, 403 (1) (359 SE2d 187) (1987).

2. Since we are reversing and remanding the jury issues for a new trial, the award of attorney fees as to those issues must necessarily fall as well, and hence we need not consider Koppar’s enumeration concerning attorney fees.

3. In the cross-appeal, the Robertsons first maintain the trial court erred by granting Koppar’s motion for a directed verdict because the motion was not properly made and no specific ground was stated. The record reveals that at the close of the Robertsons’ evidence, the court asked if there was anything further from them, and received a negative reply. The court then asked if Koppar had anything further, and it responded: “[y]es, sir, we have a motion . . . . And, it’s on the issue of punitive damages and fraud. And, again, we went through this at pre-trial, but if the Court will —.” At this point Koppar’s counsel was interrupted by the court, and was thus prevented from identifying precisely the nature of his motion. However, the specific grounds were well covered, and the transcribed colloquy between the trial court and counsel for both parties leaves no doubt that the court and the parties knew what the motion was. As indicated in Division 1 of this opinion, clarification was specifically asked for and received by the Robertsons’ counsel, removing any doubt which may nevertheless have been present. We have found no case, nor have the Robertsons cited us to any, in which a motion for directed verdict has been reversed or even discussed for such formal imperfections. In light of the fact that the parties obviously were aware of the grounds for the motion, and discussed those grounds thoroughly, we refuse to elevate form over substance, and find no error in this procedure. See generally Norair Engineering Corp. v. St. Joseph’s Hosp., 163 Ga. App. 167, 168 (2) (290 SE2d 145) (1982).

Decided April 18, 1988.

Donald 0. Nelson, for appellant.

4. In the remaining enumerations of error in the cross-appeal, the Robertsons challenge the trial court’s grant of a directed verdict to Koppar on the issue of fraud (or, as the Robertsons frame the issue, as to punitive damages) and failure to charge the jury as to punitive damages. We affirm the trial court’s direction of a verdict on this issue. “ ‘ “To recover in tort for fraud the plaintiff must prove five essential elements: (1) That the defendant made the representations; (2) that at the time he knew they were false; (3) that he made them with the intention and purpose of deceiving the plaintiff; (4) that the plaintiff relied on the representations; (5) that the plaintiff sustained the alleged loss and damage as the proximate result of their having been made. [Cit.]” [Cit.]’ [Cit.]” Hall v. Rome Auto. Co., 181 Ga. App. 621, 622 (1) (353 SE2d 542) (1987). Koppar’s president steadfastly denied that he knew the plat given to the Robertsons at closing was erroneous in its depiction of the easement, and at the close of the Robertsons’ evidence, no evidence had been presented indicating knowledge on the part of Koppar or any of its agents that any representations made to the Robertsons were false.

“Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed. [Cits.] Here, there is no conflict in the evidence that [Koppar and its agents] did not know at the time the representations were made that any of them were false. Thus, the verdict on the issue of fraud was demanded for the movant, [Koppar], and the trial court correctly directed the verdict in [Koppar’s] favor. [Cit.]” Id.

Having properly removed the issue of fraud from the jury’s consideration, the remaining counts of the Robertsons’ complaint sounded in contract, making punitive damages unrecoverable. Builders Transport v. Hall, 183 Ga. App. 812, 816 (3) (360 SE2d 60) (1987). Accordingly, there was no error in failing to charge the jury as to punitive damages.

Judgment affirmed in Case No. 75914. Judgment reversed, in Case No. 75913.

Deen, P. J., and Carley, J., concur.

Anthony L. Harrison, for appdlees.


author: McMurray, Presiding Judge.

text:
    75993.
    HALL v. BANK SOUTH, WASHINGTON COUNTY.
    (368 SE2d 810)
   McMurray, Presiding Judge.

Bank South, Washington County (plaintiff) brought an action against Johnnie W. Hall, Sr. (defendant) seeking to recover a deficiency judgment allegedly due to plaintiff by defendant under a promissory note which was secured by a parcel of real property owned by defendant. Defendant answered and admitted that he executed a promissory note and security instrument in favor of plaintiff, but denied liability to plaintiff for a deficiency under the promissory note, asserting, in general, the affirmative defenses of novation and accord and satisfaction.

Upon plaintiff’s motion for summary judgment, the undisputed evidence showed that plaintiff sold the collateral real property under the authority of the security agreement executed by defendant, the proceeds of which were insufficient to satisfy defendant’s debt to plaintiff. It is also undisputed that the foreclosure sale was approved and confirmed pursuant to the provisions of OCGA § 44-14-161 et seq. and a deficiency of $75,924.75 remained under the promissory note.

In opposition, defendant filed his affidavit, which provided, in pertinent part, as follows: “I met with Billy Nalls, an agent of the Plaintiffs, and it was agreed between Billy Nalls and I that the land would be sold and that any amounts received pursuant to the sale of the land would be accepted from [plaintiff] as full settlement of the obligation owed by me . . .1 was then told by Mr. Billy Nalls that the rest and remainder of the debt owed would be taken as a business loss for tax purposes by [plaintiff] . . . Mr. Billy Nalls told me that this would be a tax write off for [plaintiff].”

Defendant appeals from summary judgment granted on plaintiff’s motion. Held:

In his sole enumeration of error, defendant contends the trial court erred in granting plaintiffs motion for summary judgment because there remained “material issues of fact as to whether or not there had been a settlement and release and accord.”

“Where accord and satisfaction is raised as a defense, the burden of proof lies with the party relying on the doctrine. See Searcy v. Godwin, 129 Ga. App. 827 (3) (201 SE2d 670). Code Ann. § 20-1201 [now OCGA § 13-4-101] provides that ‘Accord and satisfaction is where the parties, by a subsequent agreement, have satisfied the former one, and the latter agreement has been executed. The execution of a new agreement may itself amount to a satisfaction, where it is so expressly agreed by the parties; and without such agreement, if the new promise is founded on a new consideration, the taking of it is a satisfaction of the former contract.’ ‘The accord and satisfaction must be of some advantage, legal or equitable, to the creditor, or it will not have the effect of barring him from his legal rights.’ Code Ann. § 20-1203 [now OCGA § 13-4-102]. ‘An agreement by a creditor to receive less than the amount of his debt cannot be pleaded as an accord and satisfaction, unless it be actually executed by the payment of the money, or the giving of additional security, or the substitution of another debtor, or some other new consideration.’ Code [Ann.] § 20-1204 [now OCGA § 13-4-103].” McCullough v. Mobiland, Inc., 139 Ga. App. 260 (1), 261 (228 SE2d 146). In other words, “ ‘[a] novation or accord and satisfaction is in itself a contract and must have all the elements of a de novo contract. (Cits.)’ ” M. W. Buttrill, Inc. v. Air Conditioning Contractors, 158 Ga. App. 122, 123 (2) (279 SE2d 296).

Decided April 18, 1988.

Jacque D. Hawk, Victor Hawk, for appellant.

John A. Dana, for appellee.

In the case sub judice, assuming as true defendant’s assertion that he entered into an agreement with plaintiff to permit foreclosure and sale of the collateral real property to extinguish his debt, this agreement falls short of an accord and satisfaction since it is unenforceable for lack of consideration. “ ‘An agreement on the part of one to do what he is already legally bound to do is not a sufficient consideration for the promise of another.’ Johnson v. Hinson, 188 Ga. 639 (2) (4 SE2d 561).” Barnes v. Reliable Tractor Co., 117 Ga. App. 777, 778 (161 SE2d 918). Consequently, since defendant failed in presenting evidence to establish a prima facie case of novation or accord and satisfaction and since the amount of the deficiency under the promissory note is undisputed, the trial court properly granted summary judgment in favor of plaintiff.

Judgment affirmed.

Pope and Benham, JJ., concur.


text:
    76070.
    SENIOR v. THE STATE.
    (369 SE2d 49)
   McMurray, Presiding Judge.

In 1981 appellant was found not guilty by reason of insanity of the offense of murder and was ordered committed to a hospital for the mentally ill. On September 25, 1987, appellant sought the committing court’s permission to participate in a treatment plan which included his “conditional release” from the institution where he was being treated. After a hearing, the trial court denied appellant’s request for “certain off-campus privileges while committed to the custody of the Department of Human Resources . . .” This appeal followed. Held:

Decided April 18, 1988.

Chandelle Turner, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Andrew Weathers, Assistant District Attorneys, for appellee.

In his sole enumeration of error, appellant contends the committing court erred in denying his request for off-campus privileges in light of the undisputed recommendations of the mental health care professionals at the institution where he is being treated that off-campus privileges under a gradual release program would be beneficial for appellant’s treatment. This argument is without merit.

Although “a committing court has the authority to allow an insanity acquittee to pursue treatment, educational or other goals outside of the confines of the treating facility[,] ... a committing court is [not] mandated to approve such a plan. As is the case in a petition seeking an outright release of the insanity acquittee, ‘(t)he (committing) court is entirely free to reject the recommendation of the staff of the institution.’ Loftin v. State, 180 Ga. App. 613, 615 (349 SE2d 777) (1986); see also Arnold v. State, 173 Ga. App. 839 (328 SE2d 572) (1985).” O’Neal v. State, 185 Ga. App. 838, 840 (365 SE2d 894) (1988). See Benham v. Ledbetter, 785 F2d 1480, 1489, 1491 (11th Cir. 1986).

Judgment affirmed.

Pope and Benham, JJ., concur.


author: Beasley, Judge.

text:
    75835.
    CRANFORD v. THE STATE.
    (369 SE2d 50)
   Beasley, Judge.

Defendant was convicted of aggravated assault (OCGA § 16-5-21 (a) (2)) for shooting his four-year-old daughter in the head. He did not deny shooting her but contended that he was mentally ill at the time and was attempting suicide as well as her killing. He sustained a superficial scalp wound, while his daughter suffered a serious head wound. At trial, defendant called a retained psychiatrist and the attorney who represented him in connection with juvenile court custody proceedings.

1. The first claimed error is that the court refused to allow questioning of the attorney as to his opinion of defendant with regard to the statutory definition of “mentally ill.” OCGA § 17-7-131 (a) (2). However, the record shows that the attorney was allowed to give his opinion as to whether defendant had a disorder of thought or mood which impaired his judgment. The only other question posed was whether he had an opinion as to whether defendant had a disorder which impaired his ability to cope with the ordinary demands of life. When the objection to this question was sustained, defendant’s counsel stated that he would “not argue with the court.” Acquiescence in the court’s ruling precludes our consideration of this claimed error. Willis v. State, 183 Ga. App. 408, 409 (359 SE2d 194) (1987). The attorney/witness later declined to express an opinion as to defendant’s mental illness, stating that he was not qualified to do so. Thus, even if the court erred, there was no harm. Anderson v. State, 183 Ga. App. 313 (3) (358 SE2d 888) (1987).

2. Defendant enumerates the court’s failure to give two of his jury charges, numbers 3 and 4.

In his brief, defendant purports to quote his request to charge no. 3. That language, however, is not in request no. 3 as recorded nor in any of defendant’s other requests, so he cannot complain of its not having been given. Request no. 3 in the record was given by the court except as it related to the defense of insanity, which defendant acknowledged was not supported by any evidence.

Request no. 4 dealt with sentencing if defendant should be found guilty but mentally ill. Defendant acknowledges that instruction on sentencing is not mandated by the statute, OCGA § 17-7-131 (g), but relies on several cases for his argument. In these cases, however, the defense of insanity was in issue: Prophitt v. State, 183 Ga. App. 332 (358 SE2d 892) (1987); Loftin v. State, 180 Ga. App. 613, 615 (3) (349 SE2d 777) (1986); Price v. State, 179 Ga. App. 598, 601 (1) (347 SE2d 608) (1986).

They hold that if the court instructs on the consequences of a verdict of insanity or mentally ill, those instructions must be correct, i.e., the jury must be clear that if it finds that defendant did not know right from wrong or was suffering from a delusional compulsion, the jury is required to find him not guilty and must not be misled into thinking that an insane, acquitted defendant would be released outright. The error in those cases was in either allowing the jury to compromise by finding that defendant did not know right from wrong or suffered a delusional compulsion and returning a verdict of guilty but mentally ill, or in the court’s misleading the jury as to defendant’s treatment and release if found insane, thereby depriving him of his insanity defense.

Such was not the case here. Defendant acknowledged he could not prove his tendered insanity defense. He requested and received an instruction on the guilty but mentally ill verdict, which was appropriate. See Worthy v. State, 253 Ga. 661, 665 (5) (324 SE2d 431) (1985); State v. Ball, 251 Ga. 840 (310 SE2d 516) (1984). He was not entitled to an instruction on the sentencing options of that verdict, as that would have no bearing on his guilt or innocence. Cooper v. State, 253 Ga. 736, 738 (6) (325 SE2d 137) (1985).

Decided April 19, 1988.

Kenneth W. Krontz, Jennifer McLeod, for appellant.

Frank C. Winn, District Attorney, David McDade, Assistant District Attorney, for appellee.

3. Defendant also argues that the court erred by not dismissing the cruelty to children count, thus leaving its disposition incomplete on the record. Both counts alleged the same facts, that defendant shot his daughter. The court allowed the jury to consider both counts but instructed it to return only one verdict, which it did on the aggravated assault count. Thereafter, the court instructed that the second count had merged into the first, which was appropriate. OCGA § 16-1-6; Hambrick v. State, 256 Ga. 148 (344 SE2d 639) (1986). Further, the court entered a sentence and judgment reflecting that merger. Thus, the second count has been disposed of on the record.

Judgment affirmed.

Birdsong, C. J., and Banke, P. J., concur.


text:
    76020.
    DENTON v. THE STATE.
    (368 SE2d 811)
   McMurray, Presiding Judge.

Defendant was charged in separate indictments with the burglary of Hank’s Auto Sales and the burglary of the Alan Hill residence. The evidence adduced at trial showed that defendant committed the crimes charged in the indictments after he and his accomplice, James Etheridge, “escaped off a road detail in Leesburg, [Georgia].” Defendant committed both crimes while attempting to make good his escape. The jury found defendant guilty of the crimes charged in both indictments and this appeal followed. Held:

1. In his first enumeration of error, defendant contends the trial court erred in denying his motion to sever the offenses of the indictments.

“ ‘Offenses may be “joined for trial when they are based (1) ‘on the same conduct’ or (2) ‘on a series of acts connected together’ or (3) on a series of acts ‘constituting parts of a single scheme or plan.’ (Cit.) If offenses are joined for any of these three reasons, the defendant does not have an automatic right of severance; instead, the trial judge may grant severance if it is necessary ‘to achieve a fair determination of the defendant’s guilt or innocence of each offense.’ (Cit.)” Haisman v. State, 242 Ga. 896, 900 (252 SE2d 397) (1979).’ Fluker v. State, 171 Ga. App. 415, 417 (2) (319 SE2d 884).” Isbell v. State, 179 Ga. App. 363, 366 (2) (346 SE2d 857). In the case sub judice, there was more than sufficient evidence showing that the crimes charged in the indictments were a series of acts connected together. Consequently, the trial court did not abuse its discretion in denying defendant’s motion to sever.

2. Defendant contends in his second enumeration of error that the trial court erred in allowing into evidence a statement made by him subsequent to his arrest. He argues that an oral statement he made to a law enforcement officer after his arrest “should have been excluded from the evidence by the trial court . . . because [it was] made prior to his being advised of his rights under Miranda v. Arizona, 384 U. S. 436, 86 SC 1602, 16 LE2d 694 (1966).”

The evidence adduced at a Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) hearing conducted during trial showed the defendant was apprised of his rights under Miranda v. Arizona, supra, prior to being questioned by the law enforcement officer and prior to defendant giving his statement. “A trial court’s findings as to factual determinations and credibility relating to the admission of in-custody statements will be upheld on appeal unless clearly erroneous. See generally Gates v. State, 244 Ga. 587, 590 (261 SE2d 349) (1979).” Stephens v. State, 170 Ga. App. 342, 343 (317 SE2d 627). Since the record in the case sub judice supports a finding that defendant was apprised of his Miranda v. Arizona, supra, rights prior to questioning, this enumeration of error is not supported by the record and is, therefore, without merit.

3. In his final enumeration of error, defendant contends that “[e]rror may have been committed by allowing [him] to appear in Court in leg irons in the presence of the jury prior to the return of the jury’s verdict.” Not only is this contention not supported by the record, this issue is raised for the first time on appeal. “This court cannot consider matters raised for the first time on appeal, Bowen v. State, 173 Ga. App. 361, 362 (4) (326 SE2d 525) (1985), nor can we consider factual representations in a brief which are not supported by the transcript. McCutchen v. State, 177 Ga. App. 719, 722 (3) (341 SE2d 260) (1986).” Halsell v. State, 183 Ga. App. 549, 550 (359 SE2d 393). Consequently, for the reasons set forth above, in the case sub judice there is nothing for this court to review.

Judgment affirmed.

Pope and Benham, JJ., concur.

Decided April 19, 1988.

Tommy R. Hankinson, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Eric D. Hearn, Assistant District Attorney, for appellee.


text:
    76124.
    CELIS v. THE STATE.
    (369 SE2d 53)
    Decided April 19, 1988.

      Carl Greenberg, for appellant.

      Robert E. Wilson, District Attorney, Barbara B. Conroy, J.

      Thomas Morgan III, Assistant District Attorneys, for appellee.
   McMurray, Presiding Judge.

Defendant was convicted of child molestation and aggravated child molestation and he appeals. Held:

1. The evidence was sufficient to enable any rational trier of fact to find defendant guilty of child molestation and aggravated child molestation beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Deyton v. State, 182 Ga. App. 73 (1) (354 SE2d 625).

2. Defendant contends the trial court erred in permitting the child’s mother to testify about the child’s statement in which the acts of defendant were described. In this regard, defendant points out that the trial court made no explicit finding that “the circumstances of the statement provide sufficient indicia of reliability.” See OCGA § 24-3-16. This contention is without merit. While it may be better practice for the trial court to make an explicit finding of reliability, such a finding is not necessary, especially where, as here, the record amply demonstrates that the statement carried sufficient indicia of reliability. (The mother found defendant locked in a bedroom with her child. Defendant was wearing nothing but a “T-shirt”; her child was cowering between “the dresser . . . and the wall. . . she was crying and upset and nervous.” The mother took the child out of the bedroom, calmed her down and asked what had happened. The child then made the statement about which the mother testified.)

The statement was admissible in evidence; its trustworthiness was a question to be resolved by the jury. See Vargas v. State, 184 Ga. App. 650 (2) (362 SE2d 461).

Judgment affirmed.

Pope and Benham, JJ., concur.


text:
    76200.
    LINDSEY v. WINN DIXIE STORES, INC.
    (368 SE2d 813)
   Banke, Presiding Judge.

The appellant, Bret Allen Lindsey, brought this action to recover for injuries allegedly inflicted upon him by a co-worker, Charlie Whitehead, while the two of them were in the employ of the appellee, Winn Dixie Stores, Inc. Both Winn Dixie and Whitehead were named as defendants in the action. This appeal is from the grant of Winn Dixie’s motion for summary judgment. The action presumably remains pending below against Whitehead.

The following facts may be assumed for purposes of this appeal. The appellant was employed as the store’s produce manager, while Whitehead was a city policeman hired to work at the store as a part-time security guard. The two had no relationship outside of work. Prior to the incident giving rise to this action, they had maintained a pleasant and friendly relationship at work, marred only by one incident several months previously in which Whitehead had accused the appellant, in the presence of other store employees, of stealing merchandise. The appellant had immediately reported that incident to the store manager, and Whitehead had later apologized to him for making the accusation.

On the day prior to the alleged assault, Whitehead confronted the appellant on the job with a report that someone had told him that the appellant had called him stupid. The appellant denied having made such a statement and considered the matter closed. The following day, however, Whitehead approached the appellant while the latter was in the back of the store unpacking produce and told him, “I’m off the clock . . . [I]f you want to call me stupid, you can call me stupid.” The appellant replied, “Charlie, I told you yesterday that I didn’t call you stupid, but if you insist I will call you stupid.” The appellant thereupon proceeded to do so, whereupon Whitehead grabbed him from behind in a choke hold, continued choking him until he passed out, and dropped him to the floor. As a result of the fall, the appellant suffered a fractured jaw, a lacerated chin, and the loss of three teeth.

The appellant’s superiors had previously received reports from other store employees to the effect that Whitehead had threatened them with physical violence; however, no disciplinary action had been taken against Whitehead in response to those reports. On the evening before he committed the alleged assault on the appellant, Whitehead announced to the store’s acting manager that “he was going to take the appellant’s face and mop the back room with it.” Held:

1. Initially we address the issue of whether the appellant’s injuries were covered by the Workers’ Compensation Act. If so, then the benefits available under the Act would constitute his exclusive remedy, pursuant to OCGA § 34-9-11. See, e.g., Allied Chem. Corp. v. Peacock, 151 Ga. App. 278, 281 (259 SE2d 681) (1979).

The Act specifies that “ ‘[i]njury’ and ‘personal injury’ shall not include injury caused by the wilful act of a third person directed against an employee for reasons personal to such employee. . . .” (Emphasis supplied.) OCGA § 34-9-1 (4). In cases where an employee is injured in a physical altercation with another person occurring on the job but stemming from personal animosity, his injuries will nevertheless be considered compensable under the Act if it is shown that the animosity arose from reasons related to the employee’s performance of his work-related duties. See, e.g., Commercial Constr. Co. v. Caldwell, 111 Ga. App. 1 (140 SE2d 298) (1965); State of Ga. v. Purmort, 143 Ga. App. 269 (238 SE2d 268) (1977); Fountain v. Shoney’s Big Boy, 168 Ga. App. 489 (309 SE2d 671) (1983); Swanson v. Lockheed Aircraft Corp., 181 Ga. App. 876, 880-882 (354 SE2d 204) (1987); Handcrafted Furn. v. Black, 182 Ga. App. 115 (354 SE2d 696) (1987). Conversely, if the animosity giving rise to the assault stemmed from reasons not related to the injured employee’s performance of his work, then his injuries will not be considered compensable under the Act. See, e.g., City of Atlanta v. Shaw, 179 Ga. App. 148 (345 SE2d 642) (1986). Accord Murphy v. ARA Svcs., 164 Ga. App. 859, 862-863 (298 SE2d 528) (1982) (where an employee’s claim to recover against her former employer in tort for verbal and physical abuse directed at her by her former supervisor was determined not to be barred by the Act because the supervisor’s conduct was sexually motivated).

The evidence of record in this case does not establish as a matter of law the existence of any causal relationship between the appellant’s performance of his duties at the supermarket and the incident which gave rise to this action. Instead, it may be inferred from the evidence that Whitehead attacked the appellant for reasons which were purely personal, within the contemplation of OCGA § 34-9-1 (4). It follows that Winn Dixie was not entitled to summary judgment on the basis of OCGA § 34-9-11.

2. Winn Dixie contends that even if it is not insulated from liability for Whitehead’s alleged misconduct pursuant to the Workers’ Compensation Act, it is insulated pursuant to the “fellow-servant doctrine.” We disagree.

The fellow-servant doctrine is set forth at OCGA § 34-7-21 as follows: “[T]he employer shall not be liable to one employee for injuries arising from the negligence or misconduct of other employees about the same business.” While this doctrine would appear to insulate the appellee from any vicarious liability for Whitehead’s alleged conduct which might otherwise be imposed pursuant to the doctrine of respondeat superior, compare Gaylor v. Jay & Gene’s Chrysler &c., 183 Ga. App. 255 (358 SE2d 655) (1987), it has been held that the fellow-servant doctrine does not protect an employer from being charged with direct liability for its own negligence in hiring or retaining an employee with knowledge that the employee’s presence or the manner in which the employee performs his duties poses a danger to co-employees. Accord Murphy v. ARA Svcs., supra. See generally Alterman v. Jinks, 122 Ga. App. 859, 862 (179 SE2d 92) (1970); Saunders v. Vikers, 116 Ga. App. 733 (3) (158 SE2d 324) (1967).

Decided April 19, 1988.

George M. Peagler, Jr., Billy E. Moore, for appellant.

Mark A. Gonnerman, Dawn G. Benson, for appellees.

There is, as has previously been indicated, evidence of record in this case indicating that the appellant’s superiors had been placed on notice prior to the alleged assault on the appellant that Whitehead had threatened other co-workers with physical violence. Moreover, there is evidence that, less than a day prior to the alleged assault, Whitehead had announced to the assistant store manager (who was serving at that time as the acting manager) an intention to “take the appellant’s face and mop the back room with it.” As this evidence is supportive of the appellant’s claim that his injuries were proximately caused by the appellee’s negligence in allowing Whitehead to continue to work at the store with knowledge of his alleged violent propensities, we hold that the trial court erred in granting the appellee’s motion for summary judgment.

Judgment reversed.

Birdsong, C. J., and Beasley, J., concur.


text:
    76334.
    SCOTT et al. v. STROUD.
    (369 SE2d 51)
   Deen, Presiding Judge.

Eddie Stroud and appellant’s daughter, Renita, entered into an agreement on October 28, 1985, which was later incorporated into their final divorce decree, which expressed the desire that it be “a full, complete and final settlement of all property rights and claims resulting from [their] marriage.” Eddie Stroud was to receive all the real property owned by the couple, and Renita waived all claims that she might have in his property.

During the course of the marriage, appellants gave their daughter $15,000 in cash on two separate occasions ($5,000 and $10,000 respectively) which went toward the couple’s purchase of their marital residence. Appellants admit that when the money was given to Renita there was no understanding that the funds were to be repaid. It was intended to be a gift. They now maintain, however, that when Eddie and Renita divorced, Renita waived her interest in the real property owned by the couple in exchange for Eddie’s repayment of the money. The separation agreement contains no such promise. Eddie apparently made an oral promise to the Scotts to repay all or part of the money. He claims he promised to repay $10,000 provided no one else was involved in the divorce; and when he learned that Renita was involved with someone else, he refused to pay. The Scotts claim that he agreed to repay the full $15,000 without any conditions attached. The Scotts, however, maintain that they have no personal interest in the funds and that they intend to give any money recovered from appellee to their daughter.

The court below denied Stroud’s motion for summary judgment, but on a motion for reconsideration, found that the Scotts made an inter vivos gift to their daughter, that any promise by Eddie Stroud to repay the money was not supported by consideration and that the Scotts were not the real party in interest in the lawsuit and dismissed the case. The Scotts appeal. Held:

In Basden v. Basden, 183 Ga. App. 188 (358 SE2d 317) (1987), the separation agreement stated that it settled all questions of division of property, etc., and indicated an intent to settle all questions of property division and other property rights. The court found the agreement to be a final disposition of these matters. The agreement in the instant case does likewise, and it is obvious that appellants are seeking to do that which their daughter is precluded from doing for herself. Appellants admit that the funds in question were a gift. It was therefore irrevocable. See OCGA § 44-5-80. Drake v. Wayne, 52 Ga. App. 654, 660 (184 SE 339) (1935), holds that an inter vivos gift “ ‘operates, if at all, in the donor’s lifetime, immediately and irrevocably; it is a gift executed . . .’ ‘To make a valid gift, there must be a present intention to give, and a complete renunciation of right, by the giver, over the thing given, without power of revocation, and a full delivery of possession as a gift, inter vivos.’ [Cit.]” Further, even assuming appellee’s oral promise to repay, such a promise would have been unsupported by new consideration and thus nudum pactum. OCGA § 13-3-40.

This would be true even if Renita had brought the action. Moreover, in Renita’s case, the final decree of divorce, incorporating an agreement reciting that it is a full and final settlement of all rights, claims, and demands between the parties as a result of the marriage, would preclude her recovery. Basden v. Basden, supra. Accordingly, we find the trial court erred in dismissing the action, based on a failure to bring it in the name of the real party in interest. As no impediment appears to a decision on the merits, the trial court’s judgment of dismissal is vacated and this case is remanded for entry of judgment in favor of appellee on his motion for summary judgment.

Decided April 19, 1988.

Cecil L. Clifton, Jr., for appellants.

William R. Oliver, for appellee.

Judgment reversed and case remanded with direction.

Carley and Sognier, JJ., concur.


text:
    76339.
    BRICE v. NORTHWEST GEORGIA BANK.
    (368 SE2d 816)
   Deen, Presiding Judge.

Appellant Brice contracted to sell a piece of land and a mobile home to Benjamin Franklin and his wife Brenda, the sale contingent upon the Franklins’ ability to obtain a loan of approximately $12,000 from appellee Northwest Bank. The bank declined to make the loan on the basis of the Franklins’ credit-worthiness alone; Brice thereupon agreed to sign the promissory note along with the Franklins, and did so. The record reveals that each of the three signed the face of the bank-provided note on a separate line beneath which was printed the word “Borrower.” No signatures appear on the back. Brice also took a security deed on the land and the mobile home.

According to appellant, an official of appellee bank assured him before he signed the note that the mobile home would be fully insured during the thirty-four-month term of the loan. The insurance was allowed to lapse, however, and the mobile home was subsequently destroyed by fire. The Franklins discontinued payments on the note, and it went into default. The bank declared the balance immediately due and payable, according to the terms of the note, and filed a complaint against Brice seeking payment in full, plus attorney fees. Appellant answered, denying the indebtedness on the basis that he had signed as an accommodation party and therefore was not primarily liable on the note. He further alleged that the false representations of appellee’s agent regarding the maintenance of insurance coverage constituted fraud. Brice also filed a counterclaim, alleging negligence on the bank’s part in permitting the insurance to lapse, thereby impairing the collateral. Appellant then made written demand upon appellee, pursuant to OCGA § 10-7-24, that the latter take steps to collect the debt from the Franklins. When, after three months, appellee had taken no such action, appellant declared himself discharged in accordance with the cited Code section.

Decided April 19, 1988.

John 0. Wiggins, for appellant.

Appellee moved for summary judgment. The trial court, in granting summary judgment, found “as a matter of fact and a matter of law” that Brice was a co-maker on the note and was therefore jointly and severally liable, but expressly reserved the counterclaim for jury trial. Brice appeals, enumerating as error the award of summary judgment as to his status vis-a-vis the note, and contending that the capacity in which he signed the promissory note was a genuine issue of material fact which required resolution by a jury. Held:

OCGA § 11-3-118 (e), cited in the trial court’s order granting summary judgment, prescribes as follows: “Unless the instrument otherwise specifies, two or more persons who sign as maker, acceptor or drawer or indorser and as a part of the same transaction are jointly and severally liable even though the instrument contains such words as T promise to pay.’ ” Appellant contends, however, that appellee had actual knowledge that he was signing as an accommodation party rather than as a “borrower” or maker. The Georgia Supreme Court has held that, absent fraud, accident, or mistake, parol evidence is generally inadmissible to alter the unconditional nature of a promissory note. Dolanson Co. v. C & S Nat. Bank, 242 Ga. 681 (251 SE2d 274) (1978). Moreover, Georgia courts have held that the payee’s knowledge of the accommodation does not relieve the accommodation party of liability in the capacity in which he has signed the instrument. OCGA § 11-3-415 (2). Kerr v. DeKalb County Bank, 135 Ga. App. 154 (217 SE2d 434) (1975); Adcock v. First Nat. Bank of Atlanta, 144 Ga. App. 394, 395 (2) (a) (241 SE2d 289) (1977); National Bank of Ga. v. Moore, 159 Ga. App. 729, 734 (3) (285 SE2d 78) (1981). The law also clearly provides that an accommodation party is not liable to the party accommodated, OCGA § 11-3-415 (5).

Here, the intentions of the parties with regard to whether appellant was an accommodation party are simply irrelevant, since the plaintiff is the bank, which took the note for value. As to the bank, therefore, there is no question that, as a matter of law, whether or not appellant signed as an accommodation party, he is liable in the capacity in which he signed. It is undisputed that appellant signed the note as “borrower,” leaving no question of material fact for jury resolution. Therefore, summary judgment was properly awarded. OCGA § 9-11-56 (c).

Judgment affirmed.

Carley and Sognier, JJ., concur.

Clifton M. Patty, Jr., for appellee.


text:
    76429.
    IMC MOTOR EXPRESS, INC. v. COCHRAN.
    (368 SE2d 817)
   Deen, Presiding Judge.

The following oral summary made by the trial judge in open court on October 21, 1987, succinctly conveys the facts and the posture of the instant case. “The simple facts surrounding all of this litigation that goes back for over a decade is that the plaintiff [appellee Cochran] bought a truck from the defendant [appellant IMC Motor Express], the plaintiff paid the defendant for the truck, and the defendant, rather than turning over the title, sought to collect other funds, and that brought on a lawsuit[;] it was tried by a jury in Fayette Superior Court and the jury determined that the defendant was not entitled to any additional sums and directed that the title to the truck be turned over to the plaintiff. The case was then appealed to the Court of Appeals on the attorney fee issue and they affirmed the judgment. . . The plaintiff still hasn’t got the title to the truck. And the defendant now defends against a contempt [citation] on the basis that his bookkeeper made an error and gave the title to somebody else.” See also IMC Motor Express v. Cochran, 180 Ga. App. 232 (348 SE2d 750) (1986).

Appellee Cochran filed a contempt petition, and the trial court, after a hearing, held IMC in civil contempt and ordered that E. F. Cartwright, as IMC’s representative, be incarcerated until the contempt was purged by delivery of the truck’s title to Cochran and payment of $943.50 in additional attorney fees, plus court costs. IMC posted a $10,000 cash bond to obtain Cartwright’s release and appealed “from each and every part of said judgment and order,” enumerating as error the sufficiency of the evidence and errors of law. Held:

Our examination of the transcript of the contempt hearing; the official report of the prior appearance of the instant case in this court; and the entire record submitted in the instant appeal indicates that the trial court acted properly in holding appellant in contempt. As to appellant’s enumerations 2 through 5, asserting errors of law and challenging the sufficiency of the evidence, we find no reversible errors of law in the proceedings below, and ample competent evidence to support a judgment of contempt. The conduct of appellant is aptly summed up in this court’s opinion as reported at 180 Ga. App. 232, 233, supra: “[Appellant’s refusal to tender the title was without foundation, was characterized by bad faith, and . . . resulted in ‘unnecessary trouble and expense’ to the appellee, within the contemplation of OCGA § 13-6-11 . . . [W]e conclude that this appeal ‘was . . . palpably without merit.’ ”

Decided April 19, 1988.

James A. White, Jr., for appellant.

Charles H. Davis, Jr., Cynthia L. Briscoe, for appellee.

Judgment affirmed.

Sognier, J., concurs. Carley, J., concurs in the judgment only.