text:
    A96A2342.
    SMITH v. THE STATE.
    (480 SE2d 356)
   Pope, Presiding Judge.

Defendant Ulysses Smith was convicted by a jury of burglary. On appeal, defendant challenges the sufficiency of the evidence, and further contends that the trial court’s examination of his brother was an improper comment on the evidence.

1. The victim testified that she was home with her baby when two men she did not know drove into her driveway and knocked at her door. When she did not answer, they drove off, but they immediately returned, backing the car down the driveway so the car was facing out. She heard kicking at her back door, and she retrieved a gun and phone and then shut herself and her baby in her bedroom. While she was calling 911, she heard glass breaking, and then heard someone removing her television and VCR from the entertainment center. She saw her bedroom door slowly opening and defendant peeked in. He looked at her standing there with the gun, but he continued opening the door. Defendant then smirked and walked toward her, and she fired the gun, wounding him. Defendant and the other man — defendant’s 15-year-old brother — left after the shooting. A neighbor whose suspicions were aroused had blocked the victim’s driveway, but defendant and his brother drove across the yard and got away.

Defendant did not deny that he was in the victim’s house and was shot, but he claimed the burglary ■ was perpetrated by his younger brother without his knowledge or complicity. Defendant said he was sitting in the car and did not realize his brother was breaking into the house, and that he does not remember why he walked into the bedroom after his brother let him in the door. The brother corroborated defendant’s story at trial; but in a pre-trial statement he had told investigators that the burglary was defendant’s idea and that defendant had broken the window to get in the house.

Decided January 24, 1997.

Charles E. Day, for appellant.

Alan A. Cook, District Attorney, Jeffrey L. Foster, Assistant District Attorney, for appellee.

Viewed in a light to support the verdict, this evidence was sufficient to enable rational jurors to find defendant guilty of burglary beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See also Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982) (prior inconsistent statement may be considered as substantive evidence of guilt).

2. After defendant’s brother testified that defendant was sitting in the car, unaware that he was breaking into the house, the trial judge asked the witness several questions to determine where the car was in relation to the door the witness was kicking. A trial judge has discretion to ask a witness questions to elicit and develop the truth, as long as he or she does not express or intimate an opinion on the facts of the case. Wilson v. State, 229 Ga. 224 (2) (190 SE2d 78) (1972), disapproved on other grounds, Holcomb v. State, 230 Ga. 525 (198 SE2d 179) (1973). The judge in this case did not (in front of the jury) express or intimate an opinion on the facts of the case, and did not abuse his discretion in questioning defendant’s brother.

Judgment affirmed.

Andrews, C. J, and Smith, J., concur.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A96A2389.
    TUGGLE v. STATE OF GEORGIA.
    (480 SE2d 353)
   Pope, Presiding Judge.

On August 7, 1995, Officer J. J. Davis of the DeKalb County Police Department pulled over a Buick LeSabre for traffic violations. After the driver of the vehicle was arrested, the police officer approached the two passengers sitting in the vehicle and asked to see their driver’s licenses or other identification. Cedric Tuggle, the passenger in the front seat, jumped out of the vehicle and attempted to flee the scene. A chase ensued, and Tuggle was caught, taken into custody, and searched. A bag was found in his crotch area containing $995 in currency and 26 grams of crack cocaine.

The State filed a notice of seizure of the currency and of a cellular phone found on Tuggle’s body pursuant to OCGA § 16-13-49 (n), and Tuggle filed a verified claim of ownership. The State then filed a complaint for forfeiture, and Tuggle filed his verified answer in which he asserted that he was the sole owner of the seized property, claiming that the currency “represents money saved by the Claimant from numerous jobs that he has held.” Tuggle also filed a motion to dismiss the State’s notice of seizure and complaint for forfeiture as well as a motion to suppress all tangible evidence seized during his arrest.

The State filed a motion for judgment of forfeiture and disposition of property, asserting that Tuggle’s answer did not satisfy the specific pleading requirements of OCGA § 16-13-49. Following argument and a non-jury hearing on the motions during which Tuggle failed to present any evidence whatsoever, the trial court denied both of Tuggle’s motions and granted the State’s complaint for forfeiture. Tuggle appeals, raising two enumerations of error.

1. In its order, the trial court first determined that the State was entitled to a judgment of forfeiture because Tuggle had failed to establish standing to contest the forfeiture. Specifically, the trial court found Tuggle had failed to establish: (1) that he was the owner or interest holder of the currency as required under the forfeiture statute; and, (2) his entitlement to a statutory exception as set forth in OCGA § 16-13-49.

“OCGA § 16-13-49 (o) (3) requires that an answer stating a claim to property subject to forfeiture satisfy not only the general pleading rules applicable to all civil actions, but must also specifically set forth the following: . . . (C) The nature and extent of the claimant’s interest in the property; (D) The date, identity of transferor, and circumstances of the claimant’s acquisition of the interest in the property; (E) The specific provision of [OCGA (§ 16-13-49)] relied on in asserting that the property is not subject to forfeiture; (F) All essential facts supporting each assertion. . . .” (Indentations and punctuation omitted.) State of Ga. v. Alford, 264 Ga. 243, 244-245 (2) (a) (444 SE2d 76) (1994). “Identical pleading requirements are imposed upon owners and interest holders responding to a notice of seizure authorized by OCGA § 16-13-49 (n) (1). [Cit.]” Knodel v. State of Ga., 222 Ga. App. 514, 515-516 (474 SE2d 700) (1996).

We agree with the trial court that Tuggle’s answer fails to state with the required particularity each of the elements required by OCGA § 16-13-49 (n) (4). First, the answer is deficient in that it does not adequately specify the “date, identity of the transferor, and circumstances of [Tuggle’s] acquisition of interest in the property” as required by subsection (D). The answer, which states only that the currency represented “money saved from numerous jobs,” fails to provide details about any of Tuggle’s alleged jobs such as the name of his employers, the dates he worked, the nature of his duties, or any other similar information that would “assure some degree of legitimacy to the claim and to elicit supportive factual information so as to expedite the proceeding.” State of Ga. v. Cannon, 214 Ga. App. 897, 898 (449 SE2d 519) (1994). See also Howard v. State of Ga., 223 Ga. App. 323 (477 SE2d 605) (1996); Jackson v. State of Ga., 218 Ga. App. 437 (461 SE2d 594) (1995). Compare Harris v. State, 222 Ga. App. 267 (474 SE2d 201) (1996) where the claimant’s answer specified the dates he acquired the money, the source of the money, and the circumstances regarding his acquisition.

We also agree with the trial court that Tuggle’s answer does not comply with the requirements of subsections (E) and (F) of OCGA § 16-13-49 (n) (4) because it fails to recite any facts to support his assertions that the seized property was not subject to forfeiture pursuant to the innocent ownership provisions of OCGA § 16-13-49. “In the case sub judice, when [Tuggle’s] submission is pruned of its conelusory allegations, the [answer] ‘merely cites to the innocent owner provision of OCGA § 16-13-49 without asserting facts in support of his alleged innocent ownership. Thus, [this answer] fails to comply with subsections (E) and (F) of the specific pleading requirements of OCGA § 16-13-49 (n) (4).’ [Cit.]” (Punctuation omitted.) Jackson v. State of Ga., 218 Ga. App. at 438.

“[F]ailure to comply with the strict pleading requirements prescribed in OCGA § 16-13-49 [(n) (4)] when answering an in rem forfeiture petition is equivalent to filing no answer at all. [Cit.]” Jarrett v. State of Ga., 220 Ga. App. 559, 560 (1) (472 SE2d 315) (1996). Accordingly, the trial court correctly determined that Tuggle had failed to establish standing to contest the forfeiture, and the trial court’s grant of a judgment of forfeiture in favor of the State was proper. State of Ga. v. Alford, 264 Ga. at 245. See also Lockett v. State of Ga., 218 Ga. App. 289 (460 SE2d 857) (1995); Mitchell v. State of Ga., 217 Ga. App. 282 (457 SE2d 237) (1995).

2. Based upon our holding in Division 1, we need not consider the trial court’s other grounds for granting a judgment of forfeiture, nor need we consider Tuggle’s second enumeration of error regarding the admissibility of certain evidence at trial.

3. Although this Court has held that a claimant in a civil forfeiture action may challenge the legality of an underlying search when the validity of the search has not been previously adjudicated in a criminal action (Pitts v. State, 207 Ga. App. 606 (428 SE2d 650) (1993)), we find that the trial court in this instance did not have jurisdiction to consider the merits of Tuggle’s motion to suppress because of Tuggle’s failure to file a legally sufficient claim or answer in the civil forfeiture proceeding. Accordingly, we vacate only that portion of the trial court’s order that addresses Tuggle’s motion to suppress on the merits with direction that the motion to suppress be dismissed without prejudice to Tuggle’s rights to refile the motion on a timely basis in any criminal proceeding brought as a result of this arrest. See generally Quinn v. State, 221 Ga. App. 399, 400-401 (2) (471 SE2d 337) (1996).

Decided January 24, 1997

Stephen T. Maples, for appellant.

J. Tom Morgan, District Attorney, Carol M. Kayser, Assistant District Attorney, for appellee.

Judgment affirmed in part and vacated in part with direction.

Andrews, C. J., and Smith, J., concur.

       The currency was the only property addressed in the trial court’s order and the only property discussed by the parties in this appeal. Accordingly, we limit our review to the consideration of the currency alone.


author: McMurray, Presiding Judge.

text:
    A96A2424.
    McCRACKEN v. THE STATE.
    (480 SE2d 361)
   McMurray, Presiding Judge.

Defendant was tried before a jury and convicted of battery and obstruction of an officer. The evidence adduced at trial, stated in a light most favorable to sustaining the jury’s verdicts, reveal that these offenses stem from a domestic dispute between defendant and his former girl friend, the victim. The quarrel began at an apartment defendant and the victim shared and got violent after the victim threw a bowl of chili on defendant. Defendant followed the victim through the apartment after this incident, ultimately striking her in the face with his “closed fist.” After several blows, defendant stopped his assault and gave the victim “a wash cloth to wipe [her] face. . . .” Injured, the victim dressed herself and left the apartment with her young child. The victim went to a nearby “Texaco” station and telephoned for police assistance.

Officer John Edward Ivy of the Clayton County Police Department arrived at the “Texaco” station and found the victim holding a “rag” over her left eye. When the victim removed the “rag,” the officer noticed that the victim’s eye was “almost completely swollen.” The victim told Officer Ivy about defendant’s assault. The officer took the victim home, found the apartment in “total disarray” and discovered that defendant had fled the scene. Officer Ivy, however, did not give up his search for defendant. He patrolled the victim’s neighborhood “[h] oping that [defendant] would come back to the apartment. . . .” A few minutes into this surveillance, Officer Ivy heard a radio dispatch summoning another officer to the victim’s apartment. Officer Ivy contacted the responding officer — Sergeant Joseph Woodall of the Clayton County Police Department — via his police radio “and advised him of the situation. . . .”

Sergeant Woodall arrived on the scene about an hour and a half after Officer Ivy met the victim at the “Texaco” station. When the victim greeted Sergeant Woodall at the apartment’s entrance door, the sergeant “immediately . . . noticed [the victim’s] eye — her side of her face was swollen up; her eye was swollen to the point where it was nearly shut, and it was obvious [to the officer that the victim] had been a victim of a battery. [Officer Woodall] asked [the victim] exactly what had happened, and she told [the officer] that [defendant] had . . . struck her.” Sergeant Woodall then “noticed [defendant] in the living room area [so he] stepped in [the apartment and] told [defendant] that he was under arrest for battery under the family violence laws of the State of Georgia.” Defendant resisted arrest and, during a violent struggle, Sergeant Woodall struck defendant in the face to subdue him. The sergeant then “handcuffed” defendant and led him outside the apartment. Defendant “jerked away” and fled from Sergeant Woodall as the sergeant was escorting defendant down a flight of stairs. Defendant was apprehended moments later when another officer arrived at the scene.

This appeal followed the entry of defendant’s convictions and sentences. Held:

1. The trial court did not err in failing to sever the battery charge and the obstruction of an officer charge for separate trials. “ Tf the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution except . . . the court in the interest of justice may order that one or more of such charges be tried separately.’ OCGA § 16-1-7 (b) and (c). See generally Dingler v. State, 233 Ga. 462, 463 (211 SE2d 752) (1975).” Spradlin v. State, 174 Ga. App. 658 (1) (331 SE2d 50). In the case sub judice, the evidence of defendant’s conduct in leaving the scene of the battery was relevant and pertinent to the charge that he obstructed an officer. Consequently, joinder of the two offenses was proper. Spradlin v. State, 174 Ga. App. 658 (1), supra.

2. Defendant contends the trial court erred in denying his motion for directed verdict with regard to the obstruction of an officer charge, arguing that he was justified in resisting arrest because Sergeant Woodall unlawfully attempted to arrest him without a warrant and without investigating defendant’s explanation of the domestic dispute as required by OCGA § 17-4-20.1. This argument is without merit.

“Warrantless arrests are lawful ‘if the officer has probable cause to believe that an act of family violence, as defined in Code Section 19-13-1, has been committed.’ OCGA § 17-4-20 (a). The OCGA § 19-13-1 definition of family violence includes [battery].” Dennis v. State, 220 Ga. App. 420 (2) (469 SE2d 494). The victim’s on-the-scene accusations against defendant in the case sub judice, along with “visible bodily harm” to the victim’s face, provided Sergeant Woodall with probable cause to believe that defendant had committed battery as proscribed by OCGA § 16-5-23.1 (a). Under these circumstances, it was unnecessary for Sergeant Woodall to investigate defendant’s explanation of the domestic dispute as required by OCGA § 17-4-20.1. See McCauley v. State, 222 Ga. App. 600, 601 (475 SE2d 669). Because Sergeant Woodall was acting in the lawful discharge of his duties, defendant’s resistance to arrest constituted the offense of obstructing a law enforcement officer. Dennis v. State, 220 Ga. App. 420 (2), supra. The evidence adduced at trial was sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of obstructing a law enforcement officer. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

3. Defendant contends the trial court erred in denying his motion for directed verdict with regard to the battery charge because the undisputed evidence shows that the victim initiated the argument by throwing a bowl of hot chili on him.

“According to Georgia law, ‘(a) person is justified in . . . using force against another when and to the extent that he reasonably believes that such threat or force is necessary to defend himself. . . against such other’s imminent use of unlawful force. . . .’ OCGA § 16-3-21 (a). Whether the circumstances are such to justify [a] defendant’s response is a question for the jury. Anderson v. State, 245 Ga. 619 (1) (266 SE2d 221) (1980).” McMichael v. State, 194 Ga. App. 225 (390 SE2d 120). Although we question whether the circumstances in the case sub judice authorize a defense of justification, we find the evidence sufficient to authorize the jury’s finding that defendant was not justified in beating the victim’s face in response to the victim’s act of tossing a bowl of hot chili on defendant. The victim’s testimony that defendant stood over her and beat her face, photographs reflecting the extent of the victim’s injuries and testimony indicating that defendant fled the domestic violence scene when the victim left to call the police, authorizes the jury’s finding that defendant is guilty, beyond a reasonable doubt, of battery. OCGA § 16-5-23.1 (a); Jackson v. Virginia, 443 U. S. 307, supra.

4. In his second enumeration of error, defendant contends the trial court erred in admitting into evidence the first page of a family violence report prepared by Officer Ivy which indicated that the victim reported that she had lodged “6-10” prior “complaints” against defendant. Defendant asserts that this report is inadmissible hearsay, was subject to a “continuing witness” objection and was therefore erroneously allowed to go out with the jury. See Tibbs v. Tibbs, 257 Ga. 370 (359 SE2d 674).

Decided January 24, 1997.

Kirby G. Bailey, for appellant.

Keith C. Martin, Solicitor, Evelyn Proctor, Assistant Solicitor, for appellee.

Although the trial court may have erred in admitting the family violence report into evidence, we find it highly unlikely that admission of this report affected the jury’s verdict because the evidence of defendant’s guilt of the offenses of which he was convicted is overwhelming. See Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869).

5. Defendant contends the trial court erred in allowing an internal affairs police officer to testify that Sergeant Woodall was exonerated of any wrongdoing in striking defendant while defendant was resisting arrest. Defendant waived the issues argued in support of this enumeration of error by failing to raise objections in the trial court. Carr v. State, 214 Ga. App. 367 (2), 368 (448 SE2d 33).

6. The trial court did not err in denying defendant’s oral request to charge with regard to OCGA § 17-4-20.1 (b) because defendant failed to submit a written request to charge on this Code section. Grady v. State, 212 Ga. App. 118, 119 (3) (441 SE2d 253).

Judgment affirmed.

Senior Appellate Judge Harold R. Banke concurs. Ruffin, J., concurs in the judgment only.


author: Judge Harold R. Banke.

text:
    A97A0639.
    ROGERS v. THE STATE.
    (480 SE2d 368)
   Judge Harold R. Banke.

Donnie T. Rogers was convicted of possession of methamphetamine and possession of drug-related objects. On appeal, he enumerates two errors, both related to the latter count, a misdemeanor. OCGA § 16-13-32.2 (b).

This case arose after Rogers handed a police officer a plastic bag containing a white powdery substance and was arrested. While searching Rogers at the jail, officers discovered a syringe in his right front pants pocket.

The officers disabled and photocopied the syringe, and then destroyed it because the Georgia Crime Lab generally refuses to accept such dangerous objects. At trial, the State introduced the photocopy over Rogers’ objections that the photocopy was not the best evidence of the syringe and its destruction prevented him from obtaining an independent examination. Held,-.

1. The trial court properly overruled Rogers’ objection to the admission of the photocopy of the syringe under the best evidence rule. The best evidence rule applies only in the context of a writing. In the Interest of F. L. P., 184 Ga. App. 164, 166 (2) (361 SE2d 43) (1987).

We agree with Rogers’ contention, raised for the first time on appeal, that the photocopy was vulnerable to an objection under OCGA § 24-5-2 which requires proof “that the primary evidence for some sufficient cause is not accessible to the diligence of the party.” The record indicates that the State could not have made such a showing. However, the grounds we may consider on appeal are limited to those presented to the trial court. Carpenter v. Parsons, 186 Ga. App. 3, 5 (366 SE2d 367) (1988); see Remira, Inc. v. Williams Investigative &c., 215 Ga. App. 194, 197 (1) (b) (450 SE2d 427) (1994) (secondary evidence admitted without objection is admissible).

2. We reject Rogers’ contention that reversal is required because the destruction of the syringe deprived him of his right to have an independent examination of the evidence. Without question, criminal defendants are entitled “ ‘to have an expert of [their] choosing, bound by appropriate safeguards imposed by the Court, examine a piece of critical evidence whose nature is subject to varying expert opinion.’ ” (Citation omitted.) Sabel v. State, 248 Ga. 10, 17 (6) (282 SE2d 61) (1981). “The practice of destroying evidence without prior notice to the accused has been soundly denounced. [Cit.]” Lang v. State, 165 Ga. App. 576, 579 (4) (302 SE2d 683) (1983).

Under the facts in this case, however, reversal is not required. First, the Sabel due process safeguards are triggered only by a specific, rather than a general, request for potentially exculpatory evidence upon which to conduct an independent examination. Carpenter v. State, 167 Ga. App. 634, 637 (1) (307 SE2d 19) (1983). The record demonstrates that Rogers’ request was not specific.

Second, the evidence was not “critical” within the meaning of Sabel. Rogers admitted that he possessed the syringe and does not dispute the fact that the object was a syringe. The offense, as charged in the indictment, required no proof that the syringe was actually used. OCGA § 16-13-32.2. Thus, the only disputed element of the offense was Rogers’ intent to use the syringe. Rogers failed to show how an independent examination would have garnered exculpatory evidence of probative force sufficient to be considered “critical” on the element of his intent to use the syringe in the future. Sabel, 248 Ga. App. at 18 (6). Under these circumstances, Rogers’ misdemeanor conviction for possession of drug-related objects must be affirmed.

Decided January 24, 1997.

Timothy J. Crouch, for appellant.

Stephen F. Lanier, District Attorney, Forrest K. Shealy, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A96A1717.
    CARROLL v. DIAMOND RUG & CARPET MILLS, INC.
    (480 SE2d 374)
   McMurray, Presiding Judge.

This is a workers’ compensation case arising from a 1988 back injury sustained by claimant Carroll. On January 16, 1990, an award was entered directing the employer, Diamond Rug & Carpet Mills, Inc., to pay certain enumerated medical expenses, including some associated with a 1989 surgery, “and any other medical expenses which the parties agree are reasonable in amount and reasonably required to effect a cure or give relief, subject to a hearing at the request of any party to resolve a dispute.” Pursuant to this award additional medical expenses were incurred including a second surgery in 1992. There have been no issues raised below or on appeal questioning the need for the additional medical care or the amount of such expenses incurred by claimant.

An application for discretionary appeal has been granted to permit appellate review of a dispute concerning whether claimant is entitled to be paid and whether employer is obliged to pay directly to claimant the amount of medical bills arising as a consequence of the injury which have been paid by third-party group health insurers. This case does not involve any medical treatment which claimant has paid for herself.

In an award dated May 5, 1995, the administrative law judge denied claimant’s request that the employer be ordered to pay directly to her the amount which has been paid to her medical suppliers by a group insurer. That award was affirmed by the appellate division albeit under a somewhat different legal theory. The superior court affirmed the decision of the Board of Workers’ Compensation without discussion. Held:

We are concerned here with the evolution and construction of OCGA § 34-9-206. Under the law prior to the enactment of this statute in 1985, the two-part rule was that (1) payments for an award of medical benefits, including those where the health care provider had been paid by a third party such as a group insurer, should be made directly to the claimant and that (2) an employer’s obligations under an award of medical benefits was not reduced by making payments to a group health insurer or other third-party health care provider since such payments were not contemplated or authorized by the Workers’ Compensation Act. Murray County Bd. of Ed. v. Wilbanks, 190 Ga. App. 611, 612 (1) (379 SE2d 559); St. Paul Fire &c. Ins. Co. v. Norman, 173 Ga. App. 198, 202 (4) (325 SE2d 810); Watkins Mem. Hosp. v. Chadwick, 171 Ga. App. 446 (319 SE2d 876). The 1985 enactment of OCGA § 34-9-206 altered the second part of this rule. A procedure was provided under which the employer could be required to direct medical benefit payments to third-party providers who filed appropriate claims under the statute. The first part of the old rule was altered in 1990 when the statute was amended to provide that a workers’ compensation carrier would be obliged to pay sums for medical treatment directly to the employee only to the extent that it is proven that the employee had paid for such treatment himself.

Claimant’s substantive rights are governed by the law on the date of her injury, September 30, 1988. Hart v. Owens-Illinois, Inc., 250 Ga. 397, 399 (297 SE2d 462). Although some arguments have been made concerning the res judicata effect of the 1990 award, we find that it is silent and provides no guidance as to the issues presented on the present appeal.

Thus, two issues are posed. First, whether the original 1985 statute modified the prior law as stated in Murray County Bd. of Ed. v. Wilbanks, 190 Ga. App. 611, supra, when, as in the case sub judice, there was no attempt by the third-party group health insurer, who had paid an employee’s medical bills, to seek reimbursement under the terms of the statute. A negative answer to this question is required since the original statute addresses nothing more, explicitly or implicitly, than to provide an alternative avenue and procedure by which an employer might discharge its obligations under the Workers’ Compensation Act and by which a third-party provider of health care might be reimbursed. Where the alternative avenue provided under OCGA § 34-9-206 is not utilized, there is nothing in the 1985 version of the statute which affects or limits the employer’s liability for workers’ compensation benefits and Murray County Bd. of Ed. v. Wilbanks, supra, continues to control.

The remaining question is whether claimant’s rights were affected by the 1990 amendment of the statute. In the May 5, 1995 award the ALJ determined that the 1990 amendment of the statute was procedural and thus could properly be given retroactive effect. In modifying this award the appellate division rejected the analysis of the ALJ but reached the same results based on the conclusion that Murray County Bd. of Ed. v. Wilbanks, supra, is not controlling because it is based on law pre-dating the original 1985 version of the statute, and on a determination that the statute is controlling and does not provide authority for the employer to pay to the employee the costs of medical bills which have been paid by a group insurance company. On appeal, the employer’s argument employs the reasoning stated by the appellate division.

Decided January 27, 1997

Charles H. Lumpkin, Jr., for appellant.

Kissiah & Richter, Gregory S. Shurman, for appellee.

We have already rejected the position of the appellate division for the reason that the enactment of OCGA § 34-9-206 did nothing to abrogate the pre-existing law under the circumstances of the case sub judice. The conclusion of the ALJ that the 1990 amendment was merely procedural is also incorrect.

When a workers’ compensation insurance carrier is liable for medical expenses which are paid for by a third-party provider which does not seek reimbursement, a windfall results. Either the employee gains by being paid directly under the rule in Murray County Bd. of Ed. v. Wilbanks, supra, or the workers’ compensation insurance carrier gains by avoiding a disbursement for which it is liable. Under the reasoning of Murray County Bd. of Ed. v. Wilbanks, supra, this gain was assigned to the employee, but the 1990 amendment to the statute in assigning this advantage to the workers’ compensation insurance carrier constituted a substantive change in the law not applicable in the case sub judice. The claimant was entitled to be paid directly for the amount of her medical expenses which were paid by a third-party provider which has not sought reimbursement pursuant to OCGA § 34-9-206.

Judgment reversed.

Johnson and Ruffin, JJ, concur.


author: Birdsong, Presiding Judge.

text:
    A96A2244.
    COLLINGSWORTH v. THE STATE.
    (480 SE2d 370)
   Birdsong, Presiding Judge.

Terry Collingsworth was arrested on October 1, 1994 and charged with driving under the influence of alcohol and being an habitual violator. He was tried and convicted on June 1, 1995.

The evidence showed that on October 1, 1994 at about 3:30 a.m., LaGrange police officer Jamie Melton was sitting in his patrol car, talking to an officer in another car. Melton’s car lights were on. He saw a car turn onto Fulton Street, driving on the wrong side of the road. He recognized Collingsworth driving the car. Fulton Street is a dead-end street with only one way out; Melton waited three or four minutes and then followed. He found appellant’s car parked in the driveway of a house at the end of Fulton Street. Appellant was sitting in the driver’s seat and two females were sitting in the front passenger seat and back seat. The car was turned off. Melton detected the odor of an alcoholic beverage emanating from the car. When appellant could not produce a driver’s license, Melton asked him to get out of the car. Appellant was “basically drunk.” A computer check showed appellant’s license had been suspended for his being an habitual violator. The officer read appellant his rights and asked him to submit to a state-administered alcohol test but appellant refused.

On cross-examination, defense counsel asked Officer Melton for the name of the person who lived at the address on Fulton Street where appellant had parked his car in the driveway. Melton responded “James Caldwell.” Defense counsel asked whether Melton was parked talking to another officer when appellant’s car came by and Melton replied, 'Yes.” Defense counsel then asked: “[What was going on, anything] in particular or [did] the two of you [just bump] into one another on patrol? A: We were keeping a high profile in that area because of drug activity from Mr. James Caldwell’s residence and Mr. Caldwell.” Defense counsel did not object to this testimony. Later he asked: “Q. Did you impound the car that night? A: Yes, I did. Q: Did you find any drugs in it? A. No I didn’t. Q: Did you search it for drugs? A: Yes, I did. I did an inventory search. . . . Q: When you got [in Caldwell’s yard], the car was parked in the yard with the ignition off? A: Right.”

Jackie Jackson, who lived with appellant, testified as follows: she got off work at 12:00 a.m. She and appellant and two married friends then drove to Fulton Street and went to the house of a friend, James Caldwell. She saw a police car on the side of the road on Fulton Street. She was driving her car, the female friend was in the front seat, and appellant and their male friend sat in the back seat. When they arrived at Caldwell’s house he was not home, so “we sat there for a few minutes because he was expecting us.” They had been waiting about 40 minutes for Caldwell before Officer Melton arrived. Although Jackson had been driving, appellant was behind the wheel when the officer arrived because Jackson and appellant got out, went to Caldwell’s door and knocked; their female friend said she was not feeling well so she lay down in the back seat and her husband went down the street to see if James Caldwell was at another house. When the officer arrived and asked for identification, appellant showed him some form of identification and, according to the officer, “it came back habitual violator, on active parole.” Defense counsel further elicited from Jackson that she agreed to a search of the car. “Q: What did [the officer] appear to be looking for in the car? A: I don’t know. He searched the dash, the trunk, and the inside. . . . Q: He didn’t find any drugs. ... A: No, Sir. Q: Did he ask you if any of you had any drugs? A: No, sir.” On the State’s cross-examination of Jackson, the prosecutor asked whether Caldwell was “someone that you commonly socialize with? A: Yes. Q: Are you aware that James Caldwell is convicted for drug charges? A: No, I’m not. Q: Have you ever been convicted of drug charges? A: Yes [in August 1992].” (Emphasis supplied.) She also answered that she had been convicted of possessing cocaine and marijuana. Defense counsel made two objections to impeachment of Ms. Jackson by her criminal convictions and these objections were sustained. The prosecutor (ADA) again asked: “Ms. Jackson, you’re not aware that James Caldwell, that he also was found to have drug charges.” (Emphasis supplied.) At this point, defense counsel objected and moved for a mistrial. The trial court sustained the objection but denied a mistrial and instructed the jury to disregard the question and answer and dismiss them from their minds. The judge asked, “Is there anyone that can’t dismiss it? (No response.)” Defense counsel did not insist on a mistrial or contend the curative instructions were insufficient.

On appeal, appellant enumerates five errors below. Held:

1. Appellant complains he was denied a speedy trial because he was arrested October 1, 1994 and was not tried until June 1, 1995. During all that time he was unable to get a bond because of a parole hold. He was never indicted, but an accusation was filed on May 2, 1995. The transcript of the hearing on appellant’s motion to dismiss the charges shows the seven-month delay between arrest and accusation was caused by the police department’s failure to forward appellant’s file to the district attorney. The transcript reveals no effort was made by anyone to assert a right to speedy trial until February and April 1995, when defense counsel wrote letters to the district attorney asking that the case be tried as soon as possible.

Defense counsel indicated at the hearing that his research showed that he could not make a speedy trial demand until appellant had been indicted or accused. This perception of the law is incorrect. The Sixth Amendment right to speedy trial attaches when one is arrested and accused or when formal charges are brought. See Haisman v. State, 242 Ga. 896, 897 (2) (252 SE2d 397). The “speedy trial” statute, OCGA § 17-7-170, gives the technical right to demand an acquittal to one who has made a timely speedy trial demand after indictment or accusation but has not been tried within a certain time; but even where no indictment or accusation has been filed, the trial court may determine that a criminal defendant has been denied a speedy trial. Haisman, supra. There is a balancing test by which the determination is made of such Sixth Amendment violations: “four factors are weighed to determine whether an accused has been denied his right to a speedy trial. Barker v. Wingo, 407 U. S. 514 [(92 SC 2182, 33 LE2d 101)]. These factors are length of delay, reason for delay, defendant’s assertion of his right and prejudice to the defendant.” Haisman at 898. This balancing test is a highly subjective, flexible approach because the defendant has a responsibility to assert a speedy trial claim and unlike the case with other constitutional rights, he may have a potential interest in delaying any trial. State v. Lively, 155 Ga. App. 402, 404 (270 SE2d 812). Denial of speedy trial may work to a defendant’s advantage, so (absent a statute such as OCGA § 17-7-170) there is no per se prejudice to a defendant from delay of trial. Harris v. Hopper, 236 Ga. 389 (224 SE2d 1). “[W]hile the defendant has a right to speedy trial, society has a corresponding equivalent right to bring him to trial; and while the state has a duty to bring him to speedy trial, the defendant has a responsibility to assert that right. Both parties and interests stand alike at the beginning. ... But since both parties do stand alike at the beginning, when both parties stand alike in their respective failures to provide and assert the right to speedy trial, then because of the peculiar nature of the individual’s right to speedy trial as one whose deprivation can definitely work to his advantage, the weight of the equities generally lies naturally with society and its right to try the criminal defendant (see Barker, supra, p. 536 . . .).” State v. Lively, supra at 405.

The motion hearing transcript shows no effort was made by defendant to obtain a speedy trial for many months, and when he finally requested a trial the State accused and tried him as soon as the local terms of court would allow. He alleges that two witnesses became unavailable during the interim, but he cites no particular prejudice arising from these witnesses’ absence. See Crapse v. State, 180 Ga. App. 321, 324 (349 SE2d 190). The trial court did not err in determining that appellant’s Sixth Amendment rights were not offended.

2. The trial court did not err in admitting in evidence, as relevant and admissible, the defendant’s refusal to take a blood alcohol test. Rawl v. State, 192 Ga. App. 57 (3) (383 SE2d 903).

3. It is plain and obvious from the testimony quoted above that the State did not place appellant’s character in issue, nor did appellant properly object to the instance wherein the State aroused the issue. It was defense counsel who brought into evidence the fact that police were patrolling the area as a known drug area, that the particular friend whom appellant and his companions drove to visit (James Caldwell) was known for drug activity, and that the police suspected appellant of drug activity and searched his car to find drugs. After freely inviting this evidence including Caldwell’s drug activities into the courtroom, defense counsel did not object the first time the State asked the defense witness whether she knew of Caldwell’s drug criminal convictions. When defense counsel later objected and moved for mistrial, the trial court sustained the objection and gave curative instructions to which defense counsel made no exception, and defense counsel did not renew his motion for mistrial. Under these circumstances, appellant was not entitled to a mistrial. Smith v. State, 187 Ga. App. 322 (2) (370 SE2d 185).

Decided January 27, 1997.

Wesley T. Leonard, for appellant.

Peter J. Skandalakis, District Attorney, Lynda S. Engel, Assistant District Attorney, for appellee.

4. Appellant’s complaint about the jury charges is unclear. We find, in any case, that the charge as a whole correctly presents the law in such a way that it was not likely to confuse or mislead the jury. See Asbury v. State, 175 Ga. App. 335, 337 (333 SE2d 194).

5. We have reviewed the evidence and we find that it is sufficient to enable a rational trier of fact to find appellant guilty of the offenses charged, beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Beasley and Blackburn, JJ, concur.


author: Beasley, Judge.

text:
    A96A2384.
    CARTER v. THE STATE.
    (480 SE2d 376)
   Beasley, Judge.

Carter appeals his conviction of armed robbery, OCGA § 16-8-41, and challenges the denial of his motion to suppress the evidence, and the admission of the evidence on Fourth Amendment grounds.

The evidence showed that Carter robbed a convenience store on July 8, 1995. He was wearing a mask at the time, but the store’s cashier identified his clothing. Carter was arrested within several hours after the robbery. A ball cap and other clothing worn by him at the time of his arrest were seized as evidence. The next morning, officers removed the ball cap from the evidence room in order to use it as a scent article for sniff dogs. Through use of the dogs, a search was conducted on that day and the following day in the wooded area behind the convenience store. Clothing Carter was wearing at the time of the robbery and other items, including currency, were recovered.

Carter moved to suppress the items recovered through the use of the ball cap. He maintains on appeal that removal of the cap from the evidence room and its use for investigatory purposes without a warrant contravened the federal constitutional prohibition against unreasonable searches and seizures because it was only being held for custodial care.

Decided January 27, 1997

Reconsideration denied March 3, 1997

Clark & Clark, Herman Clark, for appellant.

Roger G. Queen, District Attorney, for appellee.

Once Carter was lawfully arrested and in custody, clothing worn by him at the time could be seized for use as evidence and searched without a warrant. See United States v. Edwards, 415 U. S. 800 (94 SC 1234, 39 LE2d 771) (1974); Williams v. State, 258 Ga. 80 (2) (365 SE2d 408) (1988); Eberhart v. State, 257 Ga. 600, 601 (2) (361 SE2d 821) (1987); compare Gaston v. State, 155 Ga. App. 337 (270 SE2d 877) (1980). Therefore, the officers were not required to obtain a warrant in order to use the cap to investigate the crime. Moreover, the use of the cap merely as a scent article for the sniff dogs did not constitute a search of the cap within the meaning of the Fourth Amendment. See O’Keefe v. State, 189 Ga. App. 519, 525 (3) (376 SE2d 406) (1988).

The search conducted by the officers with the use of the cap did not contravene any of Carter’s Fourth Amendment rights, as he had no reasonable expectation of privacy in the place searched. See generally Sims v. State, 214 Ga. App. 808, 809 (1) (448 SE2d 258) (1994).

Judgment affirmed.

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


author: Ruffin, Judge.

text:
    A96A1734.
    WILLIAMS v. THE STATE.
    (481 SE2d 535)
   Ruffin, Judge.

A jury found Christopher Williams guilty of driving under the influence of alcohol. Williams appeals his conviction, alleging the trial court improperly admitted the results of his breath test and improperly denied his motion for new trial. We affirm.

Viewed in a light most favorable to uphold the verdict, the record shows that Williams was stopped for speeding. After administering several field sobriety tests, Williams was arrested for DUI. Williams subsequently submitted to a State-administered breath test on an Intoxilyzer 5000, producing results of .090 and .089.

1. In his first enumeration, Williams challenges the constitutionality of OCGA § 40-6-392 (f), which provides that a properly prepared certificate of inspection showing that a breath-testing instrument is in good working order shall be self-authenticating and admissible in court. According to Williams, this statute is unconstitutional because it permits admission of a hearsay document in violation of his Sixth Amendment right to confront witnesses.

Williams originally filed this appeal in the Supreme Court, but the Supreme Court transferred the case to us after finding that Williams’ “attack on the constitutionality of OCGA § 40-6-392 (f)” had not been properly raised. Williams concedes that this issue was not properly raised. However, he attempts to “back door” this problem by arguing that we must address whether the admission of this document violates his Sixth Amendment right to confront witnesses. We are not at liberty to address the argument in light of the fact that Williams failed to properly raise the constitutionality of OCGA § 40-6-392 (f). This statute represents the only authority under which the document was admitted. Thus, if we were to address Williams’ Sixth Améndment right to confront issue, we would necessarily be ruling on the constitutionality of the statute permitting admission of this particular document. The Supreme Court has already ruled that this issue was not properly raised. Accordingly, this enumeration lacks merit.

2. In his second enumeration, Williams contends the trial court erred in admitting the Intoxilyzer 5000 certificate of inspection because the certificate was prepared eight months after the alleged inspection. The certificate, prepared on August 29, 1995, shows that the Intoxilyzer 5000 was tested and found to be in good working order on December 19, 1994. Keadle testified that a certificate was not prepared in December 1994 because it was not mandated by law. In fact, the statute requiring such a certificate did not go into effect until after April 21, 1995. OCGA § 40-6-392 (f). Keadle further testified that (1) in December 1994, he inspected the State’s breath-testing instruments in the same manner in which he tested them at the time of the hearing, and (2) when he was made aware that his inspections needed corresponding certificates, he prepared those certificates using the calibration check cards produced at the time of the initial inspection.

Contrary to Williams’ argument, the clear language of OCGA § 40-6-392 (f) does not mandate that the certificate be prepared on the day of inspection. Moreover, Ga. L. 1995, p. 1160, § 5, which was not codified by the General Assembly, provides that this Act shall apply to all cases pending at the time of its approval by the Governor, and Williams’ case was, indeed, pending when subsection (f) was added on April 21, 1995. Ga. L. 1995, p. 1160, § 5. Any discrepancy between the date of inspection and the date of the certificate should go to the weight of the evidence and not its admissibility.

Accordingly, we cannot find that the trial court abused its discretion in admitting the Intoxilyzer 5000 certificate of inspection.

3. In his third enumeration of error, Williams contends the trial court erred in admitting the results of the breath test because the test was not performed on a machine in good working order. Based on our finding in Division 2, this claim lacks merit. The trial court properly admitted the certificate of inspection showing that the Intoxilyzer 5000 was in good working order in December 1994. Williams fails to cite any authority, and we can locate none, mandating an inspection of the instrument after his test.

4. Williams next asserts the trial court erred in admitting the results of his breath test because the test was not performed according to methods approved by the Division of Forensic Sciences (“DFS”), as required by OCGA § 40-6-392 (a) (1) (A). Specifically, Williams argues that the DFS had not approved the Intoxilyzer 5000 as a qualified instrument for breath tests in Georgia.

This issue was recently decided adversely to Williams. See Corner v. State, 223 Ga. App. 353 (477 SE2d 593) (1996). In light of that holding, the trial court did not err in admitting the results of Williams’ breath test.

Furthermore, Officer Frazier, who administered the breath test to Williams, testified that he was certified and trained by the DFS to operate the Intoxilyzer 5000. In addition, it is undisputed that the DFS issued the certificate of inspection for the Intoxilyzer 5000 used in this case. Frazier’s testimony that he was certified and trained by the DFS at the time of Williams’ arrest to perform tests on the Intoxilyzer 5000 was sufficient to prove that the machine used for the test was an approved machine. “Since the director issued the permit for the operation of this particular machine, it may be inferred that its design was specifically approved by him. Accordingly, the results of the test were admissible.” (Citations and punctuation omitted.) Wallace v. State, 188 Ga. App. 77, 79 (4) (371 SE2d 914) (1988).

5. In his fifth enumeration of error, Williams contends the trial court erred in charging the jury on the presumptions contained in OCGA § 40-6-392 (b) because there was no evidence presented from which the jury could determine his alcohol concentration at the time alleged. This enumeration lacks merit.

Officer Frazier testified that Williams’ breath test results were .090 at 1:21 a.m. and .089 at 1:24 a.m. While he admitted that the test results did not show what the reading would have been at 12:27 a.m., when he stopped Williams for speeding, it was not necessary for the State to show Williams’ blood-alcohol level at the time he was initially stopped. It is well established that “[t]he absence of testimony about the metabolic rate of alcohol in the blood so as to permit a calculation of blood-alcohol content at the actual time of [the initial stop] does not render the evidence insufficient to support the desired inference [that Williams’ blood-alcohol level at the time he was stopped for speeding exceeded the legal limit]. [Cits.]” Cheevers v. Clark, 214 Ga. App. 866, 868 (2) (449 SE2d 528) (1994). Thus, the trial court did not err in charging the jury on the presumptions of intoxication at various blood-alcohol levels established by OCGA § 40-6-392 (b).

6. Williams further contends the trial court erred in the manner by which it charged OCGA § 40-6-392 (b). According to Williams, the trial court’s charge was conflicting, confusing, misleading, and impermissibly burden-shifting.

In charging the jury, the trial judge stated as follows: “If there was, at that time, an alcohol concentration of .08 grams or more, it shall be inferred or should be inferred that the person was under the influence of alcohol, as prohibited by law.” At the close of the charge, the State informed the trial court that the charge should have been “may infer” as opposed to “shall” or “should infer” and requested a correction on the charge. The trial court then recharged the jury as follows: “Ladies and gentlemen of the jury, while I was giving the charge to you, I — in talking about the various percentages, I said in one — at one time that you shall infer, and I didn’t — That was a mistake. All of those inferences you may make if you so see fit; and if you don’t see fit, you shall not make any inferences.”

While a trial court’s mandatory instruction that the influence of alcohol, in regard to OCGA § 40-6-392 (b), “shall be inferred” is impermissible because of its burden-shifting effect (see Ellerbee v. State, 215 Ga. App. 102, 104 (5) (449 SE2d 874) (1994)), we find that the trial court’s recharge promptly placed the jury on sufficient notice of what was being corrected. See Johnson v. State, 187 Ga. App. 803 (2) (371 SE2d 419) (1988). Hence, this enumeration is without merit.

7. Finally, we do not believe a new trial is required by the State’s failure to disclose allegedly exculpatory evidence. Specifically, Williams argues that a booking photograph showing his appearance at a time relevant to the offense was not produced and that this photograph would have assisted the jury in determining his level of intoxication. We disagree.

Clearly, the question is one of materiality of the nondisclosed evidence. “The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish materiality in the constitutional sense. . . . The defendant has the burden of showing that the evidence withheld from him so impaired his defense that he was denied a fair trial within the meaning of the Brady rule.” (Citations and punctuation omitted.) Brooks v. State, 182 Ga. App. 144, 145 (1) (355 SE2d 435) (1987).

Examining the record in the present case, we conclude that Williams has not met his burden of proof showing both the materiality and the favorable nature of the evidence sought. Id. See also Duncan v. State, 163 Ga. App. 148, 149 (3) (294 SE2d 365) (1982). Officer Frazier testified that Williams’ appearance was neat and not disheveled. The officer never testified that Williams’ eyes were bloodshot or that his face was flushed. Moreover, the officer based his arrest on the field evaluations, the speed of Williams’ vehicle, and Williams’ demeanor, not his appearance. Accordingly, we hold that the trial court did not err in denying Williams’ motion for new trial. Id. Even if the photograph was material, it was merely cumulative of Officer Frazier’s testimony.

Decided January 15, 1997

Reconsideration denied January 28, 1997

Robert W. Chestney, for appellant.

Ralph T. Bowden, Jr., Solicitor, Michael A. Penn, Charles C. Flinn, W. Cliff Howard, Assistant Solicitors, for appellee.

Judgment affirmed.

McMurray, P. J, and Johnson, J., concur.


text:
    A96A1866.
    BEASLEY v. AGRICREDIT ACCEPTANCE CORPORATION.
    (480 SE2d 257)
   Judge Harold R. Banke.

Agricredit Acceptance Corporation (“AAC”) sued James F. Beasley to collect the deficiency on a retail installment contract, after the repossession and sale of the collateral. Beasley counterclaimed asserting that AAC’s own actions created the default, and that AAC’s unlawful efforts to collect the debt injured and damaged him. Beasley challenges the summary judgment awarded in favor of AAC.

The record shows that four separate contracts formed the basis of the instant action. In the first two contracts, James F. Beasley, as president of Floyd Beasley & Sons, Inc., and individually as co-debtor entered into installment contracts to purchase two pieces of equipment, a used Ranger Model 665 Skidder and a used John Deere Model 544C Feller Buncher. These contracts were subsequently assigned to AAC as a secured creditor. When Beasley defaulted by failing to make timely payments, AAC and Beasley executed a renewal and refinancing agreement which consolidated the payments due under the two past due contracts. It is undisputed that Beasley executed the first three contracts both in his corporate capacity and also individually as co-debtor. When Beasley again fell behind in his payments, AAC and Beasley entered a fourth contract, the second renewal and financing agreement, which unlike the three prior contracts was executed only by the corporation, and signed by Beasley only in his corporate capacity as president. The express terms of this contract renewed and restated the duties and obligations of the parties, and provided the “execution and delivery of this Agreement shall not rescind or revoke the refinanced Contract(s) or affect in any way the rights and obligations thereunder. . .

On two separate occasions, the secured collateral was damaged by fire, and AAC received the insurance proceeds as the loss payee under the insurance policy. Each time delays in obtaining repairs resulted in the loss of the use of the feller buncher. After the second fire, because the balance due exceeded the amount of the insurance proceeds and payments to AAC had been erratically tendered, AAC required that Beasley bring the account current before AAC would release the insurance proceeds to the repair center. Ultimately, AAC repossessed the collateral, sold it at a public sale, then sued Beasley individually for a deficiency in the principal amount of $18,511.07.

In Beasley’s defenses and counterclaim, he asserted inter alia that the second renewal and refinancing agreement extinguished his obligations as co-debtor. He further argued that AAC withheld the insurance proceeds without justification thereby delaying the repair of the equipment, depriving him of its use, and preventing him from satisfying his financial obligations. Beasley claimed that AAC’s unwarranted collection efforts and other acts resulted in financial distress, caused his heart attack, and entitled him to damages and expenses. Held:

1. Beasley contends the trial court erred in determining that he was individually liable for the corporation’s indebtedness because he did not sign the second renewal and financing agreement in his individual capacity. Beasley argues that by allowing him to sign the agreement in his corporate capacity only, AAC revised the terms of the contract and released him from individual liability for the deficiency. See OCGA § 13-5-7.

In order for Beasley to be released, there must be clear evidence that AAC intended his release and that his liability was extinguished. Commonwealth Land Title Ins. Co. v. Miller, 195 Ga. App. 830, 832 (395 SE2d 243) (1990). Here, the record contains no such evidence. The contract terms specifically provided that the agreement neither rescinded nor revoked the prior contracts nor affected the underlying rights and obligations. Thus, the express terms of the contract belie Beasley’s contention that AAC intended to extinguish the terms of the previous agreement. See Farris v. Pazol, 166 Ga. App. 760, 762 (1) (305 SE2d 472) (1983).

Nor is there merit to Beasley’s contention that the second renewal agreement was a novation. A novation is itself a new contract and must have the following essential elements: (1) a prior valid obligation, (2) the agreement of all parties to the new contract, (3) the extinguishment of the old contract, and (4) the validity of the new contract. M. W. Buttrill, Inc. v. Air Conditioning Contractors, 158 Ga. App. 122, 124 (3) (a) (279 SE2d 296) (1981). If any of the essential elements is lacking, there is no novation. Id. Here, Beasley failed to show the extinguishment of the old contract. Inasmuch as the record fails to support Beasley’s novation defense, and in the absence of any issue other than Beasley’s personal liability, AAC was entitled to summary judgment as a matter of law on its contract claim. OCGA § 9-11-56 (e); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

. 2. Notwithstanding Beasley’s claim to the contrary, AAC had a right to the insurance proceeds. It is undisputed that AAC was listed as the loss payee and that AAC was owed substantially more than the amount of the insurance proceeds. As the designated payee under the insurance policy, AAC was entitled to all of the insurance proceeds up to the total amount of the debt secured by the fire-damaged collateral. See Rice v. State Farm Fire &c. Co., 208 Ga. App. 166, 171 (2) (430 SE2d 75) (1993). Because AAC was contractually entitled to the insurance funds under the insurance policy required by the installment contracts, Beasley’s interest in the proceeds existed only to the extent that the insurance proceeds exceeded the debt owed to AAC. Id. at 171. Since there was a deficiency, Beasley had no claim to the proceeds as a matter of law. Id.

Nor is there merit to Beasley’s claim based on AAC’s alleged failure to timely pay the insurance proceeds to him or to a repair shop. Nothing in the parties’ contract excused Beasley from making payments in the event the equipment was damaged by fire. AAC had a right to hold the insurance proceeds until Beasley cured his default under the contracts. A cause of action cannot be brought against a party to a contract for exercising its contractual rights. Yamaha of Atlanta v. Yamaha Motor Corp., 188 Ga. App. 413, 414 (1) (373 SE2d 95) (1988).

Nor did Beasley offer any evidence to show that AAC’s attempts to collect a valid debt, after default, constituted intentional infliction of emotional distress. Jenkins v. Gen. Hosps. of Humana, 196 Ga. App. 150, 152 (395 SE2d 396) (1990); East River Sav. Bank v. Steele, 169 Ga. App. 9,10 (311 SE2d 189) (1983). Moreover, Beasley failed to offer any medical records or expert medical testimony that AAC’s collection efforts caused his medical problems. In the absence of any evidence of wrongful or illegal conduct by AAC as the cause of any legally cognizable injury or loss to Beasley, AAC was entitled to summary judgment on his counterclaim. Smith v. Singleton, 124 Ga. App. 394, 396 (4) (184 SE2d 26) (1971).

Decided January 8, 1997

Reconsideration denied January 28, 1997.

Callaway, Neville & Brinson, William J. Neville, Jr., for appellant.

Thompson, O’Brien, Kemp & Nasuti, R. Michael Thompson, Paul J. Morochnik, Jill I. Seligman, for appellee.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.


text:
    A96A1640, A96A1641.
    CARTER v. HUBBARD et al.; and vice versa.
    (480 SE2d 382)
   Ruffin, Judge.

Randall Carter sued his former employer, Arrowhead Lock & Safe, Inc. (“Arrowhead”), and two of its corporate officers, Joseph Hubbard and Fran Henderson. Carter alleged that the defendants wrongfully terminated his employment and thereafter libeled him in a letter Arrowhead allegedly sent to individuals outside of the Arrowhead corporate structure. In Case No. A96A1640 Carter appeals the trial court’s grant of summary judgment to the defendants on his libel claim, and in Case No. A96A1641 the defendants appeal the trial court’s denial of their motion for summary judgment on Carter’s wrongful termination claim. For the following reasons, we affirm the trial court’s ruling on Carter’s libel claim and reverse the trial court’s ruling on Carter’s wrongful termination claim.

“[Sjummary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case.” Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991). In their motion for summary judgment, defendants presented undisputed evidence showing that they hired Carter as a general manager on January 15, 1990. Shortly after hiring Carter, Arrowhead’s president, Henderson, wrote and signed a memorandum to Carter “[t]o summarize [their] discussions, agreements, and long term intentions.” Among other things, the memorandum discussed Carter’s compensation package for the “first year” of employment and provided that “[i]t’s the intention of the owners of Arrowhead to develop a 5 year business program with Carter.”

On October 17, 1990, Carter submitted a resignation letter to Arrowhead which provided that he would resign “effective 10/26/90.” According to Arrowhead, it accepted Carter’s resignation, rehired him as a salesman at the end of October, and paid him a base salary with commissions. Arrowhead presented evidence that it continued to employ Carter until the first week of March 1991, when he left following a dispute with Henderson. Henderson stated that Carter “abandoned his job” and she had the locks changed after the argument. Carter alleges that Arrowhead never accepted his resignation, but merely reduced his compensation and subsequently terminated him on March 8, 1991.

Shortly after Carter left Arrowhead, Hubbard received information that Carter was attempting “to trade [keying records of Arrowhead clients] in exchange for a job [with a competitor].” In response, Arrowhead sent Carter a letter addressing his reported unauthorized use of the keying records. This letter, which formed the basis of Carter’s libel claim, indicated that it was carbon copied to Chuck Williams and Brook Blake, whom Carter characterizes as “two individuals who are involved with the locksmith industry but who were not a part of [Arrowhead’s] corporation.” Although Hubbard acknowledged that he wrote in the letter that he would “c.c.” Williams and Blake, he testified that he actually sent it only to Carter and Henderson. In support of this testimony, Arrowhead presented the affidavits of both Williams and Blake, in which they state that “[a]t no time have I ever received a letter or other written correspondence from any of the defendants regarding Randall Carter. Nor have I ever heard any of the defendants make or cause to be made any oral derogatory or uncomplimentary statements, remarks or comments about Randall Carter.”

Case No. A96A1640

1. Carter contends the trial court erred in finding that there was no evidence showing the letter was published to Williams and Blake. We disagree.

It is not disputed that publication of the allegedly libelous letter is essential to Carter’s claim. Sigmon v. Womack, 158 Ga. App. 47, 48 (1) (279 SE2d 254) (1981). “ ‘In order to effect the publication of a libel there must be a reading of it. Not only that, there must be an understanding of its meaning by the person reading it. . . . Since the gravamen of civil libel is injury to reputation, where the evidence demands a finding that the libel was not read by those to whom it was alleged to have been communicated, and there is no evidence authorizing an inference that it was communicated to anyone else who read it, or will be presumed to have read it, the case must fall.’. . . [Cit.]” (Emphasis omitted.) Id. at 50.

In this case, even if we assume the evidence authorized a finding that any of the defendants sent the letter to Williams or Blake, the affidavits and deposition testimony presented by the defendants in support of their motion clearly show that neither of those two individuals received or read the letter. The defendants accordingly have met their burden of showing by the record that the letter was not published to a third party. See id. Because Carter failed to present any evidence creating a genuine issue of material fact regarding publication, the trial court did not err in granting summary judgment to the defendants on this claim.

Case No. A96A1641

2. The defendants contend that even if Carter did not resign in October 1990, his employment contract was only for a term of one year beginning January 19, 1990, and that it had expired by the time Carter left Arrowhead in March 1991. We agree.

The employment agreement in this case did not comply with the statute of frauds. OCGA § 13-5-30 (5). “The Statute of Frauds requires that an agreement not to be performed within a year of its making must be in writing and signed by the party to be charged with the obligation. The writing or memorandum must be complete in itself, with nothing left in parol. It must show all the terms of the contract, the parties, and their assent thereto. . . . The test of an enforceable contract is whether it is expressed in language sufficiently plain and explicit to convey what the parties agreed upon.” (Citations and punctuation omitted.) Toncee, Inc. v. Thomas, 219 Ga. App. 539, 540 (2) (466 SE2d 27) (1995). The amount of compensation is an essential element of an employment contract that must be stated with sufficient definiteness. Sawyer v. Roberts, 208 Ga. App. 870 (432 SE2d 610) (1993). Our Supreme Court has recently observed that “[t]o be enforceable, a promise of future compensation must be made at the beginning of the employment. [Cits.]” Arby’s, Inc. v. Cooper, 265 Ga. 240, 241 (454 SE2d 488) (1995). The promise must “be for an exact amount [of compensation] or based upon a ‘formula or method for determining the exact amount of the [compensation], (Cits.)’ [Cit.]” Id.

In this case, even if we assume that there is sufficient evidence to show that the term of Carter’s employment contract is five years, the evidence is still insufficient to establish Carter’s compensation beyond the first year. As stated above, the memorandum from Henderson discussed Carter’s compensation package for only the “first year” of his employment. Nothing in the memorandum provides any basis for determining Carter’s compensation beyond that time. Because the contract in this case failed to specifically provide for Carter’s compensation beyond his first year of employment, the contract was unenforceable beyond that time. See Sawyer, supra. Any verbal agreements between the parties that purported to establish. Carter’s compensation for the five-year term would likewise be unenforceable under the statute of frauds. See Toncee, Inc., supra; Sawyer, supra.

Decided January 28, 1997.

Jack J. Menendez, Monzer J. Mansour, for appellant.

Dupree, Johnson & Poole, Hylton B. Dupree, Jr., Russell D. King, for appellees.

Accordingly, any employment contract between the parties was unenforceable beyond January 15, 1991, which was one year after Carter began working for Arrowhead. After such time, Carter was without an enforceable contract and under Georgia law considered an employee who could be terminated at will. Wheeling v. Ring Radio Co., 213 Ga. App. 210 (444 SE2d 144) (1994). It follows that even if Carter did not resign or abandon his position, but rather was terminated by Arrowhead on March 8, 1991, such termination was not actionable under Georgia law. See id. For this reason, the trial court erred in denying the defendants’ motion for summary judgment on Carter’s wrongful termination claim. See Sawyer, supra.

Judgment affirmed in Case No. A96A1640. Judgment reversed in Case No. A96A1641.

McMurray, P. J., and Johnson, J., concur.

       Although the letter also indicated that copies were sent to two other individuals within the Arrowhead corporate structure, Carter does not rely on these communications in support of his libel claim. See Kitchen Hardware, Ltd. v. Kuehne & Nagel, Inc., 205 Ga. App. 94, 95 (2) (421 SE2d 550) (1992) (it is well settled that a communication made by one corporate agent to another is not publication in the legal sense); Carter v. Willowrun Condominium Assn., 179 Ga. App. 257, 258 (1) (345 SE2d 924) (1986) (certain intracorporate communications regarding the conduct of persons subject to the corporation’s authority held not to have been published).


author: Andrews, Chief Judge.

text:
    A96A1668.
    GOODROE v. THE STATE.
    (480 SE2d 378)
   Andrews, Chief Judge.

Willie Gene Goodroe appeals from the judgment entered on a jury verdict finding him guilty of three counts of rape and one count of aggravated assault with intent to rape.

1. Goodroe enumerates as error that the trial court violated his Sixth Amendment right under the United States Constitution to be present during his trial by conducting a portion of the jury selection process in his absence.

Goodroe was absent from the courtroom for a period of time just prior to and during a portion of the voir dire of prospective jurors. The State concedes that Goodroe was not present during this time because he was confined at the jail, and the Sheriff’s office was late in bringing him from the jail to the courtroom. With the prosecutor and Goodroe’s defense counsel present, the trial court told the prospective jurors they were there for the trial of Goodroe’s case, explained that the jury selection process was about to begin, and administered the oath required by OCGA § 15-12-132 to the prospective jurors. The record indicates that Goodroe was not present in the courtroom at this time. In Goodroe’s absence, the trial court then propounded the statutory voir dire questions set forth in OCGA § 15-12-164 to the prospective jurors as a group. Immediately thereafter, with Goodroe still absent, the prosecutor began questioning the prospective jurors as a group as to whether any of them knew defense counsel or Goodroe. Six prospective jurors indicated they knew Goodroe. After the prosecutor had individually questioned five of these prospective jurors as to their knowledge of the defendant, Goodroe was brought into the courtroom. Goodroe was present during the remainder of the jury selection process.

Goodroe’s Sixth Amendment right to be present during his trial on criminal charges stems from the Sixth Amendment’s confrontation clause, which guarantees him the right to confront and cross-examine the witnesses against him. See also the right to confrontation in the Georgia Constitution, Art. I, Sec. I, Par. XIV. In addressing Goodroe’s claim under the Sixth Amendment, the inquiry is not whether jury selection was a critical stage of the proceedings at which he had a right to be present, but whether Goodroe’s absence interfered with his opportunity for effective cross-examination. Kentucky v. Stincer, 482 U. S. 730, 740, 744, n. 17 (107 SC 2658, 96 LE2d 631) (1987). Since Goodroe’s absence just prior to and during a portion of the jury selection process obviously had no bearing on his opportunity for effective cross-examination, no Sixth Amendment right was violated.

Even though Goodroe’s enumeration of error complains that his absence from a portion of the jury selection process violated the Sixth Amendment, it is apparent from a review of the record that he seeks to assert a claim that his absence from a portion of jury selection violated his right to be present at trial under Art. I, Sec. I, Par. XII of the Georgia Constitution. Accordingly, we will address this issue even though the enumeration of error fails to clearly assert it. OCGA § 5-6-48 (f).

Pursuant to Art. I, Sec. I, Par. XII of the Georgia Constitution, “[i]t is the legal right of a person accused of crime in this State to be present at all stages of his trial. . . ” Wilson v. State, 212 Ga. 73, 74-75 (90 SE2d 557) (1955). “ ‘The accused and his counsel have the right to be present at every stage of the proceedings and personally see and know what is being done in the case. To say that no injury results when it appears that what occurred in their absence was regular and legal would, in effect, practically do away with this great and important right, one element of which is to see to it that what does take place is in accord with law and good practice. [Cits.]’ ” Id.; Perry v. State, 216 Ga. App. 749, 750 (456 SE2d 89) (1995).

The right may be waived by the defendant personally, or by defendant’s counsel if counsel does so in the defendant’s presence or pursuant to the defendant’s express authority, or the defendant may subsequently acquiesce in counsel’s waiver. Wilson, supra at 77-78; Parker v. State, 220 Ga. App. 303, 311-312 (469 SE2d 410) (1996). There is nothing, however, in the present record showing a waiver of the right by Goodroe or his defense counsel. Even though defense counsel was present in Goodroe’s absence and made no objection, this does not waive the right or prevent error from being asserted on appeal. Fictum v. State, 188 Ga. App. 348, 349-350 (373 SE2d 54) (1988). Moreover, Goodroe was not voluntarily absent, but was being held in pre-trial confinement by the State. Accordingly, it was the trial court’s duty to see that Goodroe was brought from the jail to the courtroom when the trial commenced. Tiller v. State, 96 Ga. 430 (1) (23 SE 825) (1895); Bonner v. State of Ga., 67 Ga. 510 (1881); Fictum, supra at 349-350.

The voir dire oath prescribed by OCGA § 15-12-132, which preceded voir dire, was not a “stage of the trial” or a “critical stage of the proceedings” such that Goodroe’s absence alone during this proceeding would require reversal under the state constitutional provision. Gilreath v. State, 247 Ga. 814, 824 (279 SE2d 650) (1981); Wilson, supra; see Bowden v. State, 202 Ga. App. 802, 803 (415 SE2d 527) (1992). However, the subsequent voir dire of prospective jurors was a critical stage of the proceedings at which Goodroe had an absolute right to be present under Art. I, Sec. I, Par. XII of the Georgia Constitution. Fictum, supra; Allen v. State, 199 Ga. App. 365, 367 (405 SE2d 94) (1991); compare Stone v. State, 177 Ga. App. 750, 751 (341 SE2d 280) (1986).

Ordinarily, after concluding that a constitutional right has been violated in a criminal trial, we would determine whether under the circumstances the violation was harmless beyond a reasonable doubt. See LaRue v. State, 137 Ga. App. 762, 764 (224 SE2d 837) (1976). But in the present case, even though a violation of a defendant’s right to be present at trial pursuant to the Sixth Amendment and the due process clause of the Fourteenth Amendment of the United States Constitution may be subject to a harmless error analysis (see State v. Fletcher, 252 Ga. 498 (314 SE2d 888) (1984)), the Georgia Supreme Court has refused to apply a harmless error analysis to a criminal defendant’s right to be present at a critical stage of the trial pursuant to Art. I, Sec. I, Par. XII of the Georgia Constitution. Wilson, supra, and Tiller, supra (reversible error where defendants absent for a portion of the State’s closing argument, and no necessity to show injury); Rider v. State, 195 Ga. 656, 659 (6) (25 SE2d 304) (1943) (reversible error to charge the jury in the absence of the defendant; no defense to say that no injury resulted from the error); see Gilreath, supra at 824. Accordingly, the violation of Goodroe’s state constitutional right under Art. I, Sec. I, Par. XII to be present during voir dire of prospective jurors requires reversal of the convictions. Fictum, supra; see Perry, supra. The case of Smith v. State, 182 Ga. App. 623 (356 SE2d 702) (1987), is overruled to the extent it may be read as applying a harmless error analysis to a defendant’s right to be present at a critical stage of a trial pursuant to Art. I, Sec. I, Par. XII of the Georgia Constitution.

Decided January 28, 1997

David J. Grindle, for appellant.

2. Goodroe claims the trial court erroneously admitted similar transaction evidence showing he committed a prior rape. Since no objection was made when the similar transaction evidence was introduced during the trial, this claim was waived and presents nothing for appellate review. Sapeu v. State, 222 Ga. App. 509, 510 (474 SE2d 703) (1996); Hunter v. State, 202 Ga. App. 195, 197-198 (413 SE2d 526) (1991).

3. Because the defendant’s absence during a portion of the jury selection process requires reversal of the convictions, and the evidence may not be the same on another trial of the case, no ruling will be made on Goodroe’s claim that the evidence was insufficient to support the convictions. Rider, supra at 661. The remaining enumerations of error raise questions not likely to recur on re-trial.

Judgment reversed.

McMurray, P. J., Birdsong, P. J., Pope, P. J., Johnson and Blackburn, JJ., and Senior Appellate Judge Harold R. Banke concur. Beasley and Ruffin, JJ., concur in the judgment only.

J. Gray Conger, District Attorney, Mark C. Post, Samuel G. Merritt, Assistant District Attorneys, for appellee.

       Although Goodroe’s enumeration of error might also be construed as a claim that his absence during a portion of the jury selection process violated his right to be present at trial under the Due Process Clause of the Fourteenth Amendment of the United States Constitution (see Kentucky v. Stincer, supra at 745), we do not address this issue.


text:
    A96A1972.
    DALTON et al. v. VO.
    (480 SE2d 377)
   Andrews, Chief Judge.

The sole issue raised in this appeal is whether the trial court erred in dismissing Dalton’s notice of appeal for failure to file timely a transcript pursuant to OCGA § 5-6-42. Appellants contend the trial court’s order does not make the requisite findings of fact under Baker v. Southern R. Co., 260 Ga. 115 (390 SE2d 576) (1990), but instead bases its holding that the delay was unreasonable and inexcusable solely on the fact that no motion for extension of time was filed.

OCGA § 5-6-42 provides that a transcript must be filed within 30 days after the filing of a notice of appeal unless an extension of time is requested as provided by OCGA § 5-6-39. The trial court may, after notice and hearing, order an appeal dismissed for a party’s failure to file a transcript on time only if the delay was (1) unreasonable, (2) inexcusable, and (3) caused by such party. OCGA § 5-6-48; Baker, supra at 116. “In reviewing a finding of unreasonable and inexcusable delay in filing a transcript, this court will not disturb the lower court’s finding absent an abuse of discretion.” (Citations and punctuation omitted.) Hall v. Bussey, 200 Ga. App. 311 (408 SE2d 430) (1991).

In this case, the trial court’s order made no findings of fact beyond stating: “the Plaintiffs/Appellants did not file either the transcript or a Motion for Extension of time . . . within thirty (30) days of the filing of the Notice of Appeal. Since no Motion for Extension of time was filed, the delay in ordering the transcript was unreasonable and inexcusable under OCGA § 5-6-42. ...”

In Baker, the Supreme Court expressly disapproved a dismissal predicated on a finding that the delay was unreasonable and inexcusable because the appellant failed to seek an extension. The Supreme Court held that “[t]he failure to apply for an extension does not automatically convert the delay into one which fits all of the conditions necessary to vest the trial court with the discretion to dismiss the appeal. The court must find all these conditions before an exercise of discretion is authorized.” Baker, supra at 116. The Supreme Court then remanded the case to the trial court to make the requisite finding that the delay was caused by the appellant. Id. See also Jackson v. Beech Aircraft Corp., 213 Ga. App. 172 (444 SE2d 359) (1994) (case remanded because trial court failed to rule affirmatively as to whether the unreasonable delay was excusable and who was the cause of the delay); Speir v. Nicholson, 198 Ga. App. 383, 384 (401 SE2d 588) (1991) (case remanded for determination that delay was caused by appellant).

Decided January 28, 1997.

Kenneth J. Rajotte, for appellants.

Shur & McDuffie, Brett F. Shur, for appellee.

In this case, the trial court did not make the findings of fact necessary to vest it with discretion to dismiss this appeal. Baker, supra. There was no finding that the delay was caused by the appellants, and the finding that the delay was unreasonable and inexcusable appears, from the order, to be based solely on the fact that appellants did not move for an extension of time in which to file the transcript, which is not, standing alone, a ground for dismissal. Baker, supra at 116; Barmore v. Himebaugh, 205 Ga. App. 381, 382 (422 SE2d 255) (1992). As the court did not make the requisite findings that the delay in filing the transcript was unreasonable, inexcusable and caused by the appellants, we remand the case to the trial court for further action in accord with this opinion.

Judgment vacated and case remanded.

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


text:
    A96A2347.
    DAZA v. STATE OF GEORGIA.
    (480 SE2d 622)
   Andrews, Chief Judge.

Whitney Armstrong Daza appeals from the judgment entered on the forfeiture of a criminal bond for her appearance on the charge of trafficking in heroin.

Daza, as principal, and Osborne Bonding & Surety Company, as surety, were jointly and severally bound on the bond. Upon Daza’s failure to appear as required, the prosecutor proceeded to forfeit the bond. The trial court ordered the bond forfeited and ordered a hearing requiring that cause be shown why judgment should not be entered on the forfeited bond and execution issued on the judgment. The day after the hearing, pursuant to a motion by the State, the trial court entered an order in which it “dismissed” the judgment it had granted on the forfeited bond. The motion was brought because, after the judgment was granted, the surety brought to the State’s attention that proper notice had not been given prior to the hearing. After the criminal case was called again, and Daza again failed to appear as required under the bond, the prosecutor proceeded for the second time to forfeit the bond. The trial court again ordered the bond forfeited and set another hearing date to consider whether judgment should be entered and execution issued. After the second hearing, the trial court entered judgment on the forfeited bond against Daza and her surety.

Decided January 28, 1997.

T. Michael Martin, for appellant.

Robert E. Keller, District Attorney, Erman J. Tanjuatco, Assistant District Attorney, for appellee.

Daza claims the trial court erred in entering judgment after the second forfeiture proceeding because the State failed to pay court costs of a previously dismissed action under OCGA § 9-11-41 (d) after the judgment sought in the first proceeding was “dismissed.” There was no error. Although the forfeiture proceeding was a civil case, it was a summary procedure pursuant to OCGA § 17-6-70 et seq., and there was no requirement that the State initiate a separate civil action to forfeit the bond. State v. Slaughter, 246 Ga. 174, 176 (269 SE2d 446) (1980). The trial court’s order “dismissing” the first judgment was pursuant to its inherent discretionary power to vacate a judgment during the pending term for the purpose of promoting justice and had the effect of returning the case to the posture it occupied prior to the first judgment. See Bank of Cumming v. Moseley, 243 Ga. 858 (257 SE2d 278) (1979).

Judgment affirmed.

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


text:
    A96A1856.
    BOOT v. BEELEN.
    (480 SE2d 267)
   Judge Harold R. Banke.

Catherine Beelen, a/k/a Tineke Beelen, sued Roland Boot for breach of contract. The trial court granted partial summary judgment to Beelen and entered judgment on her behalf. Boot appeals, enumerating two errors.

To prevail on summary judgment, the moving party must show that no genuine issues of material fact remain to be tried and that the undisputed facts, viewed in the light most favorable to the nonmovant, warrant summary judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the record shows that Boot, a Dutch bulb importer, invited Beelen to leave her native Holland and live with him in Georgia. Beelen, a nurse and antique dealer, accepted, liquidated some of her Dutch holdings and opened a joint checking account with Boot into which she deposited at least $58,000. She also brought antiques with her which Boot valued at approximately $15,000. Beelen attested that during their relationship she made Boot numerous loans totaling over 240,000 guilders in the form of cash and travelers checks to cover the down payment on his home, furnishings, landscaping, and other bills and he had promised to repay her. Boot admitted he had promised more than once that he would pay her back.

Almost two years after Beelen’s arrival, Boot decided that he no longer wanted to live with her. In concluding their relationship, Boot made a verbal promise to compensate Beelen for the monies she spent during their relationship. The parties also entered into a written settlement agreement in November 1993. Specifically, Boot agreed to pay Beelen 200,000 guilders (or the equivalent in dollars) on or before February 1, 1994, and to make three additional payments of $12,000 on September 1 of 1994, 1995, and 1996. He also agreed to return certain boxes, cartons, and a bed and linens to her. Beelen testified that Boot proposed this agreement and that it represented all the money she had lent him. Boot admitted that he entered into the agreement and signed the written contract with the intent to compensate Beelen.

It is undisputed that Boot paid Beelen $100,000, the approximate equivalent of 195,000 guilders, in February 1994. In several letters he promised to pay the balance after he sold his Volvo. However, Boot subsequently informed Beelen that he “could not justify” making further payments, except for the remainder of the 200,000 guilder debt, due to various financial setbacks and because he believed “it should cost us both money if it would not work between us.” Boot claimed the amounts he had previously agreed to pay were not “realistic.”

After Boot failed to make any subsequent payments or to forward Beelen’s belongings, Beelen commenced this action. The trial court rejected Boot’s contention that because he was married during the course of the parties’ relationship the agreement was void as a contract to do an illegal thing, finding that the contract was merely one to pay a debt. Held:

1. The trial court did not err in enforcing the agreement. Boot’s contention that the written agreement was supported solely by past consideration is contradicted by the record. He has provided no evidence disputing Beelen’s contention that during the course of their relationship he agreed to compensate her for expenditures she made. Beelen testified that Boot told her they would live now on her money and later on his and he would repay her. Although, as Boot argues, past consideration will not support a subsequent promise, Beelen’s testimony shows that the loans themselves were consideration for Boot’s promises to repay them, promises which were later memorialized in writing. Compare Whitmire v. Watkins, 245 Ga. 713, 714 (267 SE2d 6) (1980). We reject Boot’s inference that reliance on the parties’ parol evidence in this case is improper. See Donohue v. Green, 209 Ga. App. 381, 382 (433 SE2d 431) (1993) (parol evidence of surrounding circumstances admissible to aid in contract interpretation).

We also reject Boot’s contention that his promises are unenforceable because the loans were made to further an adulterous and meretricious relationship. It is well settled that neither law nor equity will enforce a contract founded on immoral consideration such as sexual relations. OCGA § 13-8-1; Long v. Marino, 212 Ga. App. 113, 114 (2) (a) (441 SE2d 475) (1994). In conformity with this rule, we have held that an agreement to exchange sexual favors for support was unenforceable. Long, 212 Ga. App. at 114 (2) (a). But nothing in the contract at issue “casts upon either of the parties the responsibility to perform any illegal activity.” Crooke v. Gilden, 262 Ga. 122, 123 (414 SE2d 645) (1992). The record simply shows that Beelen provided Boot with funds which he promised to repay. The promise to be enforced here is one to pay a debt. “[T]he alleged illegal activity was at most incidental to the contract rather than required by it.” Id. Moreover, Boot’s own testimony characterizing the relationship when Beelen came to Georgia as one of “friendship” undermines his argument that the alleged sexual misconduct was more than collateral to the contract at issue. Nowhere in the record does Boot claim he was paying Beelen to provide sex or illicit companionship.

Boot mischaracterizes Beelen’s testimony in arguing that the agreement was unenforceable because Beelen retained control over the funds and used them to cover her personal expenses. Beelen attested that most of the money she lent him was in the form of cash or travelers checks which were given directly to Boot, and were not deposited in their joint account. Having determined that the agreement was enforceable, we must necessarily conclude that Boot’s argument that the contract to be enforced was “illusory” lacks merit. See Kemira, Inc. v. Williams Investigative &c., 215 Ga. App. 194, 198 (2) (450 SE2d 427) (1994) (promise where performance is “entirely optional” is illusory). Where, as here, contracts are not contrary to law, the courts are bound to enforce them as made. Talley v. Mathis, 265 Ga. 179, 181 (2) (453 SE2d 704) (1995).

2. Based upon the foregoing analysis, it follows that the trial court properly denied Boot’s motion for summary judgment.

Judgment affirmed.

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

Decided January 13, 1997

Reconsideration denied January 29, 1997

Harman, Owen, Saunders & Sweeney, Timothy J. Sweeney, for appellant.

LaFon & Hall, Beverly J. Hall, for appellee.


text:
    A96A1799.
    GOODMAN et al. v. HAMMONDS.
    (480 SE2d 397)
   McMurray, Presiding Judge.

William F. Murphy filed an action as executor and trustee of the estate of B. F. Murphy (“the decedent”) to determine heirship, alleging the decedent bequeathed an eighth of his estate to the deceased children of Pennie Harris, Willie Mae Shurling and Katie Ree Copeland. William F. Murphy also alleged in this petition that Willie Mae Shurling is survived by her only child’s four children, Linda S. Goodman, Mary S. Jackson, Sue S. Tompkins and Tommy Shurling (“the Shurling heirs”); that Katie Ree Copeland died without children and that Betty Hammonds claims Copeland’s share of the decedent’s estate by virtue of the doctrine of virtual adoption. William F. Murphy declared that he was depositing an eighth of the decedent’s estate into the trial court’s registry and requested the trial court to “determine those who are entitled to participate in the distribution of said property under the terms of the will of B. F. Murphy. . . .”

The Shurling heirs admitted all allegations of the heirship petition, except Hammonds’ alleged claim to Copeland’s share of the decedent’s estate. The Shurling heirs demanded strict proof of Hammonds’ virtual adoption claim and requested half of the sum William F. Murphy deposited into the trial court’s registry based on their rights as Willie Mae Shurling’s legal heirs. Hammonds admitted all allegations of the heirship petition and consented to paying the Shurling heirs half the sum William F. Murphy deposited into the trial court’s registry. But she claimed the remaining sum on deposit in the trial court’s registry based on her alleged right as Copeland’s heir by virtue of the doctrine of virtual adoption.

The trial court granted Hammonds’ motion for summary judgment, finding that “Hammonds has satisfactorily shown the existence of an agreement to adopt and sufficient part performance of that agreement to establish a virtual adoption [and that the Shurling heirs have] failed to set forth specific facts showing any genuine issue of material fact.” This appeal followed. Held:

1. The Shurling heirs have filed a motion to transfer this appeal to the Georgia Supreme Court, arguing that “the case [sub judice] is one ‘involving wills’ such that jurisdiction for appeal purposes is properly in the Supreme Court.”

The Constitution of the State of Georgia of 1983, Article VI, Section VI, Paragraph III (3), confers upon the Georgia Supreme Court jurisdiction in “[a]ll cases involving wills.” The Georgia Supreme Court has held “that the language ‘all cases involving wills’ means those cases in which the will’s validity or meaning is in question.” In re Estate of Gwendolyn H. Lott, 251 Ga. 461 (306 SE2d 920). The Shurling heirs argue that the case sub judice belongs in the Supreme Court because, “[notwithstanding the caption of the petition [filed by William F. Murphy on behalf of the decedent’s estate to determine heirs at law] and the trial judge’s focus upon virtual adoption, the issue in the case before the trial court was really a question of who was entitled to receive certain assets under the will of B. F. Murphy, deceased.” This argument is without merit.

The parties did not raise nor did the trial court consider or resolve any issue relating to the validity or meaning of the decedent’s Last Will and Testament. The only issue the trial court resolved was Hammonds’ claim to Copeland’s share of the decedent’s estate. Accordingly, jurisdiction of this appeal lies in the Court of Appeals of Georgia. See O’Regan v. Brennan, 204 Ga. App. 50 (418 SE2d 389).

The Shurling heirs’ motion to transfer this appeal to the Supreme Court is hereby denied.

2. The Shurling heirs contend the trial court erred in granting Hammonds’ motion for summary judgment “without considering the will and the intention of the testator[, the decedent].” We do not agree.

The Shurling heirs do not contest the validity or meaning of the decedent’s Last Will and Testament. And there is no indication that the decedent’s Last Will and Testament is relevant to Hammonds’ claim that she is Copeland’s heir by virtue of the doctrine of virtual adoption. Consequently, the trial court did not err in granting Hammonds’ motion for summary judgment “without considering the will and the intention of the testator[, the decedent].”

3. The Shurling heirs argue that the trial court erred “in granting summary judgment without determining whether [the decedent’s] bequest was to individuals or to a class and whether distribution is to be per capita or per stirpes.” This argument is without merit. OCGA § 9-11-56 authorizes summary judgment as to less than all the issues in a case.

Judgment affirmed.

Ruffin, J., concurs. Johnson, J., concurs in the judgment only.

Decided January 29, 1997.

Larsen & Larsen, W. W. Larsen, Jr., for appellants.

Avant & Evans, Clarke C. Avant, Alan W. Connell, John A. Dana, for appellee.