author: McMurray, Presiding Judge.

text:
    A91A1845.
    CUMMINS v. THE STATE.
    (413 SE2d 773)
   McMurray, Presiding Judge.

Via three uniform traffic citations, defendant was charged with driving under the influence, leaving the scene of an accident and failure to- report an accident. Defendant pleaded not guilty and demanded a jury trial. Thereupon, the case was transferred from the Warner Robins Municipal Court to the State Court of Houston County.

Defendant filed a “speedy trial demand” which reads as follows: “Comes now the Defendant, Robert R. Cummins, Jr., pursuant to OCGA § 17-7-170, and demands a trial by jury within the next succeeding term of court, there being jurors impaneled to try said case at said term.” Defendant was not tried within two terms and he moved for an acquittal.

At the hearing, the State conceded that defendant was not tried within the time set forth in OCGA § 17-7-170. It argued, however, that defendant’s demand was insufficient to start the running of the clock. The trial court agreed and denied defendant’s motion for an acquittal. Defendant appeals. Held:

In Ferris v. State, 172 Ga. App. 729 (324 SE2d 762), the defendant filed a letter demanding a speedy trial upon “any or all charges” against him. The letter did not identify the charges which were pending against defendant by “name, date, term of court, or case number.” Accordingly, we held that while the letter was sufficient to demand a speedy trial, it was insufficient “to put the authorities on notice of a defendant’s intention to invoke the extreme sanction of former Code § 27-1901 (now OCGA § 17-7-170, effective November 1, 1982).”

In the case sub judice, as in Ferris, the demand indicated clearly that it is a demand for a speedy trial. See State v. Adamczyk, 162 Ga. App. 288 (290 SE2d 149). But it failed to identify the charges upon which defendant demanded a speedy trial by “name, date, term of court, or case number.” Ferris v. State, 172 Ga. App. 729, 731, supra. Compare State v. Allen, 192 Ga. App. 730 (386 SE2d 394) in which the indictment number was referenced specifically in the demand. Inasmuch as the demand did not identify the charges pending against defendant, it “cannot reasonably be construed as sufficient to put the authorities on notice of . . . defendant’s intention to invoke the extreme sanction of . . . OCGA § 17-7-170. . . .” Ferris v. State, 172 Ga. App. 729, 730 (1), 731, supra.

Decided November 21, 1991

Reconsideration denied December 3, 1991

Waymon S. Harrell, for appellant.

Robert E. Turner, Solicitor, Cynthia T. Adams, Assistant Solicitor, for appellee.

State v. Prestia, 183 Ga. App. 24 (1) (357 SE2d 829), cited by defendant, is inapposite. In that case, “defendant’s letter clearly referenced the charges pending against him and the term of court during which defendant was scheduled to appear.” Id. at 25.

Likewise, defendant’s reliance upon Verscharen v. State, 188 Ga. App. 746 (374 SE2d 349), is misplaced. In Verscharen, unlike the case sub judice, the defendant “correctly referenced the identifying numbers on the uniform traffic citations containing the charges against him.”

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    A91A1903.
    SARGENT v. BLANKMANN et al.
    (413 SE2d 495)
   McMurray, Presiding Judge.

Joan Frances Blankmann and Patrick Omar Bohan (plaintiffs) instituted an action against Carlton Willard Sargent (defendant), and others, after plaintiffs’ mother Gunar Naib Bohan allegedly suffered fatal injuries while a passenger in an automobile operated by defendant. Defendant moved for summary judgment and argued that the exclusive remedy provision of Georgia’s Workers’ Compensation Act bars plaintiffs’ claims.

At about 8:30 in the morning on September 26, 1988, defendant and Gunar Naib Bohan, employees of the Division of Public Health of the Georgia Department of Human Resources, left their homes in Atlanta to attend a work-related meeting in Dahlonega, Georgia. At about 10:30 that morning, defendant was driving north on Georgia Highway 400 and he drove his vehicle into another vehicle. Bohan was injured in the collision and she was transported to a hospital. Neither defendant nor Bohan made it to the business meeting in Dahlonega.

The trial court denied defendant’s motion for summary judgment and we granted defendant’s application for appeal to determine whether plaintiffs’ tort claims are barred by the exclusive remedy provision of Georgia’s Workers’ Compensation Act. Held:

Decided November 19, 1991

Reconsideration denied December 3, 1991

Dennis, Corry, Porter & Thornton, William E. Gray II, Craig P. Siegenthaler, for appellant.

Ronald L. Hilley, for appellees.

“OCGA § 34-9-11 provides an exclusive remedy for claims as between fellow employees of the same employer ‘when an injury arises out of and in the course of employment.’ Labelle v. Lister, 192 Ga. App. 464, 465 (1) (385 SE2d 118) (1989).” Crawford v. Meyer, 195 Ga. App. 867 (395 SE2d 327). In the case sub judice, the undisputed evidence shows that defendant and Bohan were employed by the State of Georgia; that both employees were on their way to an out-of-town business meeting at the time of the collision and that defendant and Bohan were required to attend the business meeting by their employer. These circumstances show that Bohan’s injuries arose while she and defendant were acting within the scope of their employment. Consequently, plaintiffs’ claims against defendant are barred by OCGA § 34-9-11 and the trial court erred in denying defendant’s motion for summary judgment. See Hartford Acc. & Indem. Co. v. Welker, 75 Ga. App. 594, 599 (2) (44 SE2d 160). Compare O’Kelley v. Gates, 160 Ga. App. 400, 401 (287 SE2d 262).

Judgment reversed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A1936.
    LEVENSON v. OLIVER.
    (413 SE2d 501)
   McMurray, Presiding Judge.

On December 17, 1990, Ingeborg Margit Rath and Department of Family & Children’s Services (“DFACS”) caseworker Susan Hill filed a petition, pro se, in the Probate Court of DeKalb County to restore Rath’s capacity as an adult. The affidavit of Rath’s personal guardian, Ralph Mitchell, was filed in support of the petition and a physician’s affidavit was filed, wherein it was deposed that Rath is not mentally or physically incapacitated; that Rath is capable of managing her own affairs and that Rath’s “first [psychiatric] hospitalization now appears to have been a gross stress reaction to a very painful divorce from her husband.” The probate court appointed a physician or applied psychologist to evaluate Rath and ordered Rath to attend the evaluation.

On January 9, 1991, attorney Louis Levenson filed an entry of appearance and a demand for a jury trial on Rath’s behalf. On February 4, 1991, the court appointed physician and applied psychologist reported to the probate court that Rath is restored to capacity and that she is capable of managing her own affairs. On February 12, 1991, Rath’s daughter, Antje Rath Kingma, filed a pro se objection to the restoration of capacity.

On April 11, 1991, the guardian of Rath’s property, attorney Mary Margaret Oliver, challenged attorney Levenson’s bill for attorney fees in the amount of $6,301.25. More specifically, attorney Oliver requested that “a Guardian ad Litem [be appointed] to determine the appropriateness of said fees, and thereafter determine whether an Order should issue relative to the approval of payment of said fees as set forth in the said affidavit of Louis Levenson for services rendered.” Jeffrey N. Berman was appointed guardian ad litem and Mr. Berman objected to the amount of attorney fees charged by attorney Levenson.

On April 30, 1991, a “CONSENT ORDER AND JUDGMENT” was entered wherein attorney Levenson, attorney Oliver (guardian of the property of Ingeborg Margit Rath), Ingeborg Margit Rath, Antje Rath Kingma and “DFACS” caseworker Susan Hill, agreed that the guardianship of Rath’s person be terminated and that the guardianship of Rath’s property be extended and administered by attorney Oliver. A hearing was also conducted on April 30, 1991, on the challenge to attorney Levenson’s bill for fees in the amount of $6,301.25. Attorney Oliver then stated, “I have performed in a different way in relation to this file, and having reviewed all those matters, I believe the . . . request for payment of attorney fees is high and I would ask the court to reduce it in whatever form the court deems appropriate.” Attorney Oliver further stated that attorney Levenson’s fees were excessive because the fees were more than half of the available cash assets of Rath’s estate. She later testified that “a reasonable attorney fee would be about $3,000.”

On May 7, 1991, the probate court entered an order and awarded attorney Levenson fees in the amount of $3,500. Attorney Levenson filed an appeal from this order. Held:

1. Attorney Oliver contends attorney Levenson has no standing to assert an appeal from the award of attorney fees, arguing that attorney Levenson is not a party in the case sub judice. This contention is without merit. OCGA § 29-2-22 (b) authorizes appeals from judgments awarding attorney fees in actions stemming from guardianship proceedings.

2. Attorney Levenson contends the trial court erred in failing to award attorney fees in the amount of $6,301.25. This contention is without merit.

We find no authority which authorizes an incapacitated adult to hire an attorney without permission from the court or the legal guardian. “The purpose of appointing a guardian for an incompetent is to protect the incompetent from personally wasting his estate or allowing others to do so. It would be illogical to appoint a guardian to oversee the estate of an incompetent, and then allow the incompetent to hire attorneys and have the attorneys act without express permission from the guardian or the court. Thus, where a guardian is appointed, no one except the guardian can act for or on behalf of the incompetent without express authority or appointment.” Matter of Estate of Kutchins, 169 Ill. App. 3d 637 (523 NE2d 1025, 1028). See OCGA § 29-2-22 (a).

In the case sub judice, there is no question that Rath was an incapacitated adult at the time attorney Levenson entered an appearance on her behalf. Further, there is nothing in the record showing that attorney Levenson acted on Rath’s behalf with express authority of the guardian or the probate court. However, attorney Levenson’s claim for attorney fees appears to stem from a contract for services he entered into with Rath.

The appointment of a guardian of an incapacitated adult removes the ward’s power to enter into a contract for legal services. OCGA § 29-5-7 (d) (2) and (e) (2). In the case sub judice, there is no dispute that guardians exercised control over Rath’s person and property at the time Rath enlisted the services of attorney Levenson and that neither guardian entered into a contract for legal services on behalf of Rath. It is therefore apparent that Rath had no capacity to enter into a contract for legal services with attorney Levenson and that any contract Rath entered into with Levenson for legal services is unenforceable by attorney Levenson. Consequently, there is no basis to support attorney Levenson’s claim that a contract for legal services existed which entitled him to attorney fees in the amount of $6,301.25.

3. Neither attorney Oliver, nor guardian ad litem Berman challenge the judgment awarding fees to attorney Levenson for services he allegedly provided to Rath. Further, the guardian and the guardian ad litem seem to have acquiesced in attorney Levenson’s representation of Rath as they never challenged attorney Levenson’s authority to represent Rath. Attorney Oliver and guardian ad litem Berman challenged only the value of attorney Levenson’s unauthorized services. We therefore do not reach issues relating to the probate court’s authority to award attorney fees beyond those prescribed in OCGA § 29-5-13 (e). However, we have examined the hearing transcript and find sufficient evidence to support a finding that attorney Levenson provided beneficial legal services to Rath and that these services were worth at least $3,500. See Dowdy v. Jordan, 128 Ga. App. 200, 211 (3) (196 SE2d 160).

Decided November 21, 1991

Reconsideration denied December 3, 1991

Louis Levenson & Associates, Louis Levenson, pro se.

Vivan D. Egan, Palmer & Berman, Jeffrey N. Berman, for appellee.

Mary Margaret Oliver, pro se.

Antje Rath Kingma, pro se.

4. It is unnecessary to address issues raised in attorney Levenson’s remaining enumerations of error.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.

       Attorney Mary Margaret Oliver filed a “PETITION FOR EXTRA COMPENSATION” in the amount of $2,686.50. See OCGA § 29-2-42. Guardian ad Litem William G. Witcher, Jr., did not object to attorney Oliver’s request for compensation. On May 27, 1991, the probate court awarded attorney Oliver additional attorney fees in the amount requested. No appeal was taken from this order.

         See Matter of Estate of Thompson, 186 Ill. App. 3d 874 (542 NE2d 949, 953), where the unauthorized services of an attorney in a guardianship proceeding were affirmed because the attorney’s services appeared necessary to protect the parties and because the trial court’s acquiescence gave the attorney the authority to act and to bind the ward’s estate for attorney fees.


text:
    A91A1994.
    WILSON v. THE STATE.
    (413 SE2d 504)
   McMurray, Presiding Judge.

Following a jury trial, defendant was convicted of failing to stop before making a right turn at a traffic signal. The trial court sentenced defendant to 12 months in confinement and payment of a fine of $150 and costs of $75. It provided, however, that the 12 months sentence would be suspended upon the payment of the fine and costs.

Defendant paid the full amount of the fine and costs on the day sentence was imposed. Thereafter, defendant moved for a new trial. The new trial motion was denied and defendant appeals. Held:

“ ‘Although a court may exercise its discretion to decide a criminal case even after the sentence has been served ((cits.)), it is not bound to do so. (Cits.)’ Baker v. State, 240 Ga. 431, 432 (241 SE2d 187) (1978). Here, as in Baker v. State, supra at 432, if there are any ‘adverse collateral consequences’ resulting from [defendant’s] misdemeanor conviction, [he] ‘has not shown, on this record,’ their existence. Compare Parris v. State, 232 Ga. 687 (208 SE2d 493) (1974); Peach v. State, 168 Ga. App. 55 (308 SE2d 60) (1983). Likewise, any ‘question raised (in the instant case) is not one which can never be decided because it inevitably becomes moot prior to an appeal. . . .’ Baker v. State, supra at 432. This is true because [defendant] was not required to pay the fine so as to avoid the immediate commencement of the [12 months] sentence. ‘At no time, either before a court of inquiry, when indicted, after a motion for a new trial is made, or while an appeal is pending, shall any person charged with a misdemeanor be refused bail.’ OCGA § 17-6-1 (a). ‘ “(O)ne convicted (of a misdemeanor) is entitled to bail as a matter of law. (Cits.)” ’ Holcomb v. State, 129 Ga. App. 86 (198 SE2d 876) (1973). Accordingly, in the absence of any evidence of ‘adverse collateral consequences’ or of ‘inevitable mootness,’ ‘(w)e decline (to exercise our discretion) to reach the merits of this appeal. . . .’ Baker v. State, supra at 432. See also Henry v. State, 148 Ga. App. 712 (252 SE2d 179) (1979). Compare Chaplin v. State, 141 Ga. App. 788 (234 SE2d 330) (1977).” Gamble v. State, 181 Ga. App. 871 (354 SE2d 174).

Decided November 21, 1991

Reconsideration denied December 3, 1991

James S. Wilson, pro se.

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

Appeal dismissed.

Sognier, C. J., and Andrews, J., concur.


author: Beasley, Judge.

text:
    A90A0960.
    GOMEZ et al. v. MARTA et al.
    (414 SE2d 747)
   Beasley, Judge.

Our reversal of the trial court’s grant of MARTA’s motion for directed verdict having been reversed by the Supreme Court in MARTA v. Gomez, 261 Ga. 617 (409 SE2d 35) (1991), our decision in Gomez v. MARTA, 197 Ga. App. 834 (399 SE2d 536) (1990), is hereby vacated and the judgment of the Supreme Court is made the judgment of this Court. The grant of MARTA’s motion for directed verdict is affirmed.

Judgment affirmed.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Carley, P. J., Pope, Cooper, Andrews, JJ., and Judge Arnold Shulman concur.

Decided December 3, 1991.

McKenney & Froelich, William J. McKenney, David M. Kupsky for appellants.

Pursley, Howell, Lowery & Meeks, Charles N. Pursley, Jr., Neely & Player, John T. Ruff, for appellees.


text:
    A91A2098.
    JONES v. THE STATE.
    Decided December 3, 1991.

      Cedric T. Leslie, for appellant.

      Willis B. Sparks III, District Attorney, Pamela White-Colbert, Thomas J. Matthews, Assistant District Attorneys, for appellee.
    (413 SE2d 784)
   McMurray, Presiding Judge.

Defendant entered guilty pleas on a two count indictment for selling cocaine and was given concurrent life sentences pursuant to OCGA § 16-13-30 (d). Defendant filed this appeal, contending the trial court erred in failing to exercise discretion in either probating or suspending the life sentences. Held:

OCGA § 16-13-30 (d) provides a mandatory life sentence for any person convicted of a second or subsequent offense of manufacturing, delivering, distributing, dispensing, administering, selling or possessing with intent to distribute any controlled substance. This Code subsection “falls within the category of other legislative directions as to punishment, such as mandatory minimum terms of imprisonment for subsequent armed robberies (OCGA § 16-8-41 (Code Ann. § 26-1902)) and burglaries (OCGA § 16-7-1 (Code Ann. § 26-1601)).” State v. Hendrixson, 251 Ga. 853, 854 (310 SE2d 526). In the case sub judice, there is no dispute that defendant was a repeat offender (two previous violations of the Georgia Controlled Substances Act involving a substance listed in OCGA § 16-13-26, Schedule II) and subject to life sentences under OCGA § 16-13-30 (d). Consequently, the trial court had no discretion to suspend or probate the legislatively prescribed life sentences.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A2205.
    HAWKINS v. THE STATE.
    Decided December 3, 1991.

      Harrison & Harrison, G. Hughel Harrison, Samuel H. Harrison, for appellant.

      Gerald N. Blaney, Jr., Solicitor, for appellee.
    (413 SE2d 525)
   McMurray, Presiding Judge.

Via accusation, defendant was charged with three counts of public indecency. He was convicted and sentenced upon two of the counts. This appeal follows the denial of his motion for a new trial. Held-.

1. On direct examination, a witness was asked why he waited 30 minutes after confronting defendant to call the police. Over defendant’s objection, the witness was permitted to testify that after speaking with defendant for approximately ten minutes he decided not to call the police because he “felt sorry for the guy . . . [but he changed his mind when he] found out there’d been a similar incidence in the apartment complex earlier at the mailboxes. ...”

Defendant contends it was harmful error to permit the witness to introduce highly prejudicial evidence of a “similar transaction.” We disagree. Defendant was not identified as the perpetrator of the other act. Thus, the statement did not suggest that defendant committed a similar act and it cannot be said to be prejudicial to defendant. See Lashley v. State, 196 Ga. App. 672, 673 (1) (396 SE2d 590).

2. The trial court did not improperly restrict cross-examination of the State’s witnesses.

3. The charge on circumstantial evidence was not given erroneously.

4. The mere fact that defendant’s lewd act was witnessed by two persons does not mean that two crimes were committed. Defendant committed one lewd act witnessed by two persons. “The two [persons] are not the victims of [defendant’s] . . . crime, but are merely the witnesses through whom the State [was able] to prove [defendant’s] guilt of an affront to public decency.” State v. Chrisopoulos, 198 Ga. App. 876, 877 (403 SE2d 460). It follows the judgment must be affirmed and the case remanded with direction that the trial court resentence defendant upon only one count of the accusation.

Judgment affirmed and case remanded with direction.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A2238.
    KENDRICK v. THE STATE.
    Decided December 3, 1991.

      Word & Flinn, T. Michael Flinn, for appellant.

      Henry C. Head, Solicitor, for appellee.
    (413 SE2d 785)
   McMurray, Presiding Judge.

Defendant was charged, via uniform traffic citation, with driving under the influence of alcohol. Defendant pleaded guilty and was sentenced to perform 240 hours of community service and to pay a $1,224 fine. This appeal followed. Held:

Defendant contends that publication of his conviction and photograph in the legal organ of the county of his residence pursuant to OCGA § 40-6-391 (j) (1) is an ex post facto application of the law since OCGA § 40-6-391 (j) (1) was not effective at the time of the alleged offense.

The record in the case sub judice does not reveal that defendant’s sentence included instructions for the clerk of the court in which defendant was convicted to publish a notice of defendant’s conviction and photograph in the legal organ of the county of defendant’s residence pursuant to OCGA § 40-6-391 (j) (!)• Consequently, there is nothing for review.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.

       OCGA § 40-6-391 (j) (1) (2) provides, in pertinent part, as follows: “The clerk of the court in which a person is convicted a third time under subsection (c) of this Code section shall cause to be published a notice of conviction for each such person convicted. Such notices of conviction shall be published in the manner of legal notices in the legal organ of the county in which such person resides or, in the case of nonresidents, in the legal organ of the county in which the person was convicted. Such notice of conviction shall be one column wide by two inches long and shall contain the photograph taken by the arresting law enforcement agency at the time of arrest, name, and address of the convicted person and the date, time, place of arrest, and disposition of the case and shall be published once in the legal organ of the appropriate county in the second week following such conviction or as soon thereafter as publication may be made.
      “(2) The convicted person for which a notice of conviction is published pursuant to this subsection shall be assessed $25.00 for the cost of publication of such notice and such assessment shall be imposed at the time of conviction in addition to any other fine imposed pursuant to this Code section.”


author: Andrews, Judge.

text:
    A91A0876.
    LANCE et al. v. ELLIOTT et al.
    (413 SE2d 486)
   Andrews, Judge.

Lance sued Dr. Elliott and his employer, Atlanta Gastroenterology Association, P. C. (AGA), as well as the manufacturer and distributors of the gastric bubble, for medical malpractice, breach of express and implied warranties, and product liability. Her husband sued for loss of consortium. She appeals the granting of summary judgment to Dr. Elliott and AGA.

Construing the evidence in favor of the Lances, the nonmoving parties, as required in ruling on a motion for summary judgment, Eiberger v. West, 247 Ga. 767 (281 SE2d 148) (1981), it showed that Ms. Lance, who had been chronically and severely obese for many years, received information on the availability and use of the gastric bubble in a hospital newsletter featuring AGA. The bubble was used in conjunction with a diet and behavior modification program to lose weight. Before inflation, the bubble was inserted into the stomach by means of an endoscope. The bubble was then inflated and floated in the upper part of the stomach, giving the sensation of fullness and decreasing appetite.

Ms. Lance’s medical history revealed a hysterectomy and abdominal wall hernias. The need to undergo surgery for repair of a hernia was one reason for her desire to lose weight. She made an appointment with Dr. Elliott and she and her daughter discussed the bubble with him. She was advised and understood that there was a possibility of the bubble deflating and traveling through the intestine where it could cause a blockage that might have to be surgically resolved. She was also given written information about the bubble.

On April 7, 1987, Dr. Elliott performed an endoscopic examination of her stomach to ensure there was no ulcer activity or a hiatal hernia, i.e., a tear in the diaphragm through which the stomach and bubble could protrude. He found none and the insertion was performed. Ms. Lance was seen weekly by a nutrition counselor at AGA and lost over 40 pounds in a month.

On May 27, Ms. Lance felt what she described as an “edge” in her hernia, which she believed was the deflated bubble. It was painful and the next morning she called Dr. Elliott’s office and the receptionist made an x-ray appointment for her at the hospital. Although she waited at Dr. Elliott’s office for several hours that afternoon, she did not see him because he was in surgery and she was not able to determine the results of the x-ray. The next day she called and was told the x-ray showed the bubble in place. Dr. Elliott examined the x-ray and had his nurse contact the radiologist who opined that the bubble was still inflated and in place. Because the bubble bore no opaque markings, the only way to determine its location without using a dye process was by location of an air bubble in its approximate shape. The radiologist’s written report stated there was a rectangular shaped air pocket seen, which “may represent the gastric bubble. If so, it appears to extend above the diaphragm and therefore is most likely within a hiatal hernia partially.”

On June 1, Ms. Lance again called Dr. Elliott’s office and asked to speak to him, telling them she was in severe pain. She was informed she could not speak with him then and was asked if it were an emergency. She informed them that in her mind it was and she was in pain. The first available appointment was June 12 and she was scheduled for then. She returned to see her nutritionist at AGA the following Wednesday and asked her if she could examine the x-ray. The nutritionist declined because she was unqualified to do so.

On June 5 she contacted her regular physician, Dr. Evans (who had treated her hernias in the past), because her hernia area was becoming red and irritated. She was given antibiotics for an infection. She did not advise him of the presence of the bubble. The following Sunday, she experienced excruciating pain in the hernia area which dissipated after an hour. She continued to see Dr. Evans and the infection appeared to clear up.

Upon returning to see the nutritionist at AGA prior to June 12, one of the nurses suggested an examination, but because the pain had cleared, Ms. Lance said that was unnecessary. The appointment on June 12 was also cancelled because Ms. Lance believed the hernia problem had cleared up.

On Friday June 12, irritation and pain appeared in an adjacent area and she began running a fever. She saw Dr. Evans on Monday and was told to contact a surgeon if it did not improve. She was sent to the emergency room by the surgeon the next day and admitted. The surgeon was told the bubble was still in place. Later, Ms. Lance was getting out of bed when the hernia ruptured. When the doctor arrived, he extracted the deflated gastric bubble from the hernia.

Dr. Elliott and AGA moved for summary judgment on the grounds that the foreign object statute of limitation, OCGA § 9-3-72, applied and had not been complied with; the treatment met the required standard of care; and that Ms. Lance had assumed the risk of the deflation and migration of the bubble.

In support of the motion, Dr. Elliott submitted his own affidavit, stating that the treatment rendered met that degree of skill and care exercised by physicians generally under like conditions and similar surrounding circumstances and that his care had caused her no harm. The affidavit also stated that use of the bubble was not indicated in patients with hiatal hernias and at the time of insertion she did not have one.

In opposition to summary judgment, plaintiffs filed on July 3, 1990 the unsigned affidavit of Dr. Markowitz. This copy included attached exhibits, including portions of the medical records relied upon by Dr. Markowitz. On July 13, as consented to by defendants, plaintiffs filed a signed copy of the affidavit. The exhibits, however, were not appended to the signed copy. On August 30, 1990, a certificate of authenticity of medical records was filed with regard to the Emory Clinic, but the records being authenticated were not otherwise identified, making the certificate useless.

Defendants argued that the affidavit was insufficient to carry the plaintiffs’ burden on summary judgment on the ground that the records used as exhibits were not sworn or certified and the affidavit’s conclusions were unsupported.

In ruling on the motion, the court concluded that Dr. Markowitz’ affidavit was not sufficient to create a dispute of fact as to medical malpractice, because the medical record exhibits were uncertified and unauthenticated and were filed with the unsigned copy of the affidavit. The court further ruled that, even considering Dr. Markowitz’ opinion, based on his consideration of the depositions of Dr. Elliott and Ms. Lance which were filed of record, the affidavit failed to adequately set out the standard of care and how Dr. Elliott’s and AGA’s conduct failed to comport with that standard.

The portions of medical records attached to the unsigned affidavit had no certification with them and the medical records are not otherwise included in the record. While an expert witness can base opinions on medical records reviewed by him or her, “OCGA § 9-11-56 (e) requires that sworn or certified copies of such material be attached to the affidavit. If such medical records are not part of the record in the case, they would have no probative value. Crawford v. Phillips, 173 Ga. App. 517 (1) (326 SE2d 593) (1985).” Hall v. Okehi, 194 Ga. App. 721, 722 (1) (391 SE2d 787) (1990).

Dr. Markowitz had not examined Ms. Lance and his opinion was based solely on the medical records and depositions which he had reviewed. “[T]he admissibility of evidence on motion for summary judgment, whether contained in affidavits or otherwise, is subject to the rules relating to the admissibility of evidence generally, so that evidence inadmissible on a hearing of the case would generally be inadmissible on motion for summary judgment. [Cit.]” Thomasson v. Trust Co. Bank, 149 Ga. App. 556, 557 (254 SE2d 881) (1979). Since the records were not attached to the affidavit or otherwise identified by their location in the evidence admitted of record, the references to these records cannot be used to contest the summary judgment motion. Hall, supra; Hughey v. Emory Univ., 168 Ga. App. 239, 240 (308 SE2d 558) (1983); see Val Preda Motors v. Nat. Uniform Svc., 195 Ga. App. 443, 444 (2) (393 SE2d 728) (1990). In addition, the medical records, even if properly admitted, contained the opinions of other physicians who did not testify by deposition or affidavit on the motion. A physician may not base an opinion on the hearsay opinion of another doctor. Doctors Hosp. v. Bonner, 195 Ga. App. 152, 159 (5) (392 SE2d 897) (1990). Therefore, the court correctly did not consider the opinion of Dr. Markowitz based upon the portions of uncertified medical records. Taquechel v. Chattahoochee Bank, 260 Ga. 755, 756 (2) (400 SE2d 8) (1991).

Decided November 15, 1991

Reconsideration denied December 4, 1991.

Joseph J. Saia, for appellants.

Alston & Bird, Robert D. McCallum, Jr., Robert P. Riordan, Nancy Glenn, Swift, Currie, McGhee & Hiers, James B. Hiers, Jr., for appellees.

Absent those records, the depositions of Dr. Elliott and Ms. Lance do not provide sufficient support for the conclusions drawn by Dr. Markowitz, particularly with regard to the professional standard of care and how the acts of Dr. Elliott and AGA varied therefrom. Hillhaven Rehab. &c. Center v. Patterson, 195 Ga. App. 70, 71 (1) (392 SE2d 557) (1990). The affidavit failed to meet the threshold requirement for recovery for medical malpractice.

The order granting summary judgment does include references to “incarceration of the bowel” as an explanation of the problems suffered by Ms. Lance, which are not supported by the record. This, however, does not negate the court’s conclusions with regard to the insufficiency of the affidavit.

Therefore, the court’s grant of summary judgment on the medical malpractice claim was appropriate.

Judgment affirmed.

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

       Although the deposition of Ms. Childress, Ms. Lance’s daughter, is relied upon by Dr. Markowitz’ affidavit and referred to in the court’s order, that affidavit is not on file below. See Green v. Sun Trust Banks, 197 Ga. App. 804 (1) (399 SE2d 712) (1990).


author: Carley, Presiding Judge. Beasley, Judge,

text:
    A91A1232.
    BANKS v. PATTON.
    (413 SE2d 744)
   Carley, Presiding Judge.

Appellant-plaintiff was seriously injured when his automobile was struck by a marked municipal police patrol car that was being operated by appellee-defendant police officer. Appellant filed suit and appellee raised in his answer the defense of governmental immunity. See Logue v. Wright, 260 Ga. 206 (1) (392 SE2d 235) (1990). The trial court granted appellee’s motion for summary judgment on the basis of his governmental immunity defense. Appellant appeals from the grant of summary judgment in favor of appellee.

1. In opposition to appellee’s motion, appellant produced his daughter’s affidavit. According to appellant’s daughter, she had overheard appellee’s wife make a telephone call and, in that overheard conversation, appellee’s wife had recounted certain statements regarding the collision which had allegedly been made by appellee. The trial court ruled that any testimony by appellant’s daughter as to what she had overheard appellee’s wife say that appellee had said would constitute inadmissible hearsay. Accordingly, the trial court refused to consider this affidavit in ruling on appellee’s motion and appellant enumerates this evidentiary ruling as error.

While a witness can testify as to what he himself overheard a party say, a witness generally cannot testify as to what he overheard someone else say that a party had said. Harper v. State, 152 Ga. App. 689, 690 (1) (263 SE2d 547) (1979). Appellant advances no viable basis for holding that the hearsay testimony of his daughter comes within any exception to the general rule of inadmissibility and we are aware of none. The testimony was not admissible to prove the truth of the statements attributed to appellee and the trial court correctly refused to consider this inadmissible hearsay.

2. “[W]here[, as here,] there is no self-insurance fund [covering official acts of a public official], the distinction between ministerial and discretionary acts is still viable in ruling on immunity for public officials for liability for their negligent acts. It is important to keep in mind that the immunity is for [a] negligent [discretionary] [act,] not for malicious acts, acts of corruption, wilful acts, or acts involving reckless disregard for the safety of others.” Logue v. Wright, supra at 206-207 (1). Accordingly, resolution of the instant case is dependent upon whether or not appellant seeks to recover for appellee’s merely negligent performance of an officialdiscretionary act.

The facts of this case are very similar to those in Logue v. Wright, supra. Here, as there, the undisputed admissible evidence of record shows that appellee was responding to an emergency call when the collision occurred and that “[t]he decision to rush to the scene of the [emergency] lay within his discretion. He exercised this discretion.” Logue v. Wright, supra at 208 (1). Accordingly, there is no genuine issue of material fact remaining as to appellee’s performance of a discretionary rather than a ministerial act. Resolution of the instant case ultimately depends, therefore, upon whether appellee’s performance of that discretionary act was merely negligent rather than wilful, corrupt or in reckless disregard for the safety of others.

Here, as in Logue v. Wright, supra, appellee was disregarding certain applicable rules of the road at the time of the collision. Here, as there, appellee was not otherwise authorized to disregard those rules of the road since he had not fully complied with the provisions of OCGA § 40-6-6. Indeed, the only material difference between Logue v. Wright, supra, and the instant case is that here, unlike there, appellee had at least activated the blue lights on the patrol car prior to the collision. Appellee was using his blue light but not his “siren when he . . . caused the collision in question. Under OCGA § 40-6-6 a car driven by a local law enforcement officer when responding to an emergency call or when in pursuit of an actual or suspected violator of the law may disregard certain rules of the road. However, the officer must use a flashing or revolving blue light [and a siren] when the rules of the road are not adhered to. Failure to use [both] the light [and] siren in this case was an act of negligence, not an act of malice, corruption, wilfulness, or reckless disregard for the safety of others. . . . [Appellee] had no discretion to violate the law by failing to activate his blue light and siren. In fact, we would subscribe to the proposition that the law does not generally grant discretion to a public employee to act negligently. The discretionary act rule deals not with the act of negligence. The rule grants immunity to public employees who perform discretionary acts in a negligent manner. That happened here.” Logue v. Wright, supra at 207-208.

Construing the admissible evidence of record most favorably for appellant, he was injured as the result of appellee’s negligent performance of a discretionary duty. Accordingly, the trial court correctly granted summary judgment in appellee’s favor.

Judgment affirmed.

Sognier, C. J., Birdsong, P. J., Pope, Cooper, Andrews, JJ., and Judge Arnold Shulman concur. McMurray, P. J., and Beasley, J., dissent.

Beasley, Judge,

dissenting.

I concur in Division 1 but respectfully dissent with respect to Division 2 and conclude that summary judgment in favor of the police officer was not warranted.

The situation in this case is distinguishable from that in Logue v. Wright, 260 Ga. 206 (392 SE2d 235) (1990), both as to pleadings and evidence, and in fact Logue guides this case to a different outcome.

In Logue, the complaint was that defendant caused the collision “through negligent operation of his patrol car.” Id. at 206. The Supreme Court was careful to point out that “It is important to keep in mind that the immunity is for negligent acts, not for . . . acts involving reckless disregard for the safety of others.” Id. at 206. “The rule,” it wrote, “grants immunity to public employees who perform discretionary acts in a negligent manner.” Id. at 208. In that summary judgment case, the Court reached the conclusion that “[f]ailure to use the light or siren in this case was an act of negligence, not an act of . . . reckless disregard for the safety of others.” Id. at 207. The conclusion was expressly limited to the undisputed facts in that case, although the circumstances and environment in which the officer drove were not described in the opinion.

Decided November 13, 1991

Reconsideration denied December 4, 1991

On the other hand, the plaintiff in this case alleges in his complaint that the officer’s acts “were unlawful and showed willful misconduct, wantonness, oppression and that entire want of care which raises the presumption of conscious indifference to the consequences.”

There is evidence that the officer, responding to a report that a robbery by force had occurred, went to look for a suspect. He drove at least 57 mph (27 mph over the speed limit) on a downtown city street with traffic just before noon on an early summer Saturday and was passing on the left in an intersection when he collided with plaintiff’s left-turning vehicle. The blue light was operating but, according to plaintiff, bystanders, and the investigating officer, the audible signal or siren was not activated. As the investigating officer pointed out, if this is true, the vehicle was not being operated as “an authorized emergency vehicle” as a matter of law because it was not being operated in accordance with OCGA § 40-6-6 (c). He also stated in his deposition that as a matter of fact, this is also a violation of police department policy.

In the opinion of this officer, who was trained in traffic accident investigation and qualified as an expert in accident reconstruction, and who had investigated the collision on the scene immediately after its occurrence, “officer Patton failed to drive with ‘due regard for the safety of all persons,’ and therefore endangered life and property.” This is required even of those who do use the audible signal and flashing or revolving blue light, as required by subsection (c). See OCGA § 40-6-6 (d).

It is a jury question whether the audible signal was operating. If it finds that there was no siren to warn the left-turning plaintiff, then it is also a jury question whether, under the circumstances in this case, the failure to properly operate the vehicle as an authorized emergency vehicle in this regard constituted reckless disregard for the safety of others. As repeated in Joyce v. Van Arsdale, 196 Ga. App. 95, 96 (395 SE2d 275) (1990), “if the employee acted in his official capacity and the challenged act involved the performance of a discretionary duty, the employee is entitled to the defense of official immunity provided the act complained of was not . . . reckless disregard for the safety of others.” Cf. Adams v. Perdue, 199 Ga. App. 476 (405 SE2d 305) (1991), where the facts were not such that the jury could find reckless disregard but merely an act of negligence.

Roberson & Schmidt, David Roberson, Randall A. Schmidt, for appellant.

Oliver, Maner & Gray, Patrick T. O’Connor, for appellee.


author: Sognier, Chief Judge.

text:
    A91A1424, A91A1425.
    A91A1426, A91A1427.
    COHEN v. WILLIAM GOLDBERG & COMPANY, INC. et al. (two cases). COHEN et al. v. WILLIAM GOLDBERG & COMPANY, INC. et al. (two cases).
    (413 SE2d 759)
   Sognier, Chief Judge.

Jay Cohen, the sole stockholder in the T-Shirtery, Inc., and Steve Radford, the sole stockholder in Hightower Corporation, the holding company of All-Star Imprinting, Inc., entered into negotiations to sell the stock of the T-Shirtery and All-Star to William Goldberg & Company, Inc. (WGC), whose sole stockholder was Bill Goldberg, in exchange for Jay Cohen and Radford receiving, inter alia, 37.5 and 25 percent, respectively, of WGC’s stock, executive positions in WGC, and, in Jay Cohen’s case, certain additional remuneration for the TShirtery’s stock. The deal collapsed, and Jay Cohen filed suit seeking a declaration that the negotiations had failed to produce an enforceable contract, the breach of which would entitle any party to damages. Jay Cohen’s father, Joe Cohen, was allowed to intervene as a plaintiff. Numerous counterclaims were filed by Goldberg, WGC, Radford, Hightower, and All-Star. This opinion consolidates four appeals brought by Jay Cohen (who we will hereinafter refer to as “Cohen”) and Joe Cohen from various rulings entered in the Superior Court of Fulton County.

1. The main issue in the appeals is the propriety of the trial court’s ruling that genuine issues of material fact exist regarding the enforceability of the sale contract negotiated by Cohen and appellees. The pertinent facts as revealed by the record are that the T-Shirtery and All-Star were two t-shirt imprinting businesses experiencing financial difficulties. Goldberg was a business broker providing financial advice to both companies. A proposal was made in late 1985 to combine the T-Shirtery and WGC, with All-Star entering into the negotiations shortly afterwards, so that the basic concept of the proposal was that the two imprinting companies would sell some or all of their stock to WGC in exchange for a percentage of WGC stock, and that the imprinting companies would merge essential operations with Cohen and Radford selling and marketing for their respective former companies but with WGC handling the administrative and financial arrangements.

The record is clear that when the parties and counsel met in April, the documents prepared by Goldberg/WGC’s attorney, Steve Merlin, set forth terms different from those originally contemplated by the parties, especially regarding the additional remuneration Cohen was to receive for his T-Shirtery stock. By the April 23, 1986 meeting, it was agreed Cohen would receive payment for his stock in the form of deferred compensation, and that meeting concluded with Cohen’s attorney, Bob Hippie, stating he would draft another version of the agreement regarding Cohen’s deferred compensation for the meeting the following day.

The April 24 meeting lies at the core of this dispute. Hippie was not able to attend that meeting in person, and the parties did not review any deferred compensation documents drafted by him. The parties present at the meeting, Cohen, Goldberg (with his attorney, Merlin), and Radford (with his attorney) signed numerous documents including a shareholders’ agreement, a stock exchange agreement, a management agreement, and an employment agreement between Cohen and WGC, which provided that Cohen would forfeit all remaining unpaid deferred compensation if he were fired for cause. It is uncontroverted that Cohen also signed a deferred compensation agreement (“DCA”). The copy of the DCA in the record is a typewritten document with certain handwritten interlineations. The handwritten terms provide for compensation terms less favorable to Cohen. Only Goldberg’s initials appear beside the most significant handwritten changes. It is uncontroverted that Cohen signed the DCA without the handwritten interlineations.

Cohen also signed an escrow and modification agreement at the April 24 meeting. That agreement first witnessed that the parties had executed certain documents, specifically including the DCA. It then provided that the documents would be held in escrow by Merlin’s firm; that the stock exchange agreement would be modified in numerous particulars; and that the parties stated that certain agreements, including the DCA, “shall become effective immediately” with the proviso that all the agreements “shall. . . terminate in the event that all of the conditions of this escrow are not satisfied.” Under the caption “Additional Conditions Precedent to Release of the Escrow” were conditions requiring the delivery of: letters of opinion of counsel in form and substance satisfactory to the parties; lenders’ consents; and deliveries required under Article 6 of the Stock Exchange Agreement such as the delivery of stock certificates, corporate seals, and stock record books, certifications that warranties and representations made in the stock exchange agreement were true and correct on the closing date, the resignations of corporate officers, and corporate minutes setting forth the appointments of Goldberg, Cohen, and Radford as new directors.

Cohen moved for summary judgment on the ground that the evidence of record established as a matter of law that no enforceable contract was executed on April 24. We do not agree, and accordingly we affirm the trial court’s denial of his motion for summary judgment on this issue.

(a) First, we do not agree with Cohen that the evidence conclusively established that there was no meeting of the minds of the parties on the terms of the DCA, a material part of the sale contract, so that under OCGA §§ 13-3-1, 13-3-2 no valid contract was created. Cohen uncontrovertedly signed the typewritten agreement. Although Hippie was not present at the meeting, Cohen conferred with him by telephone during the meeting, and the evidence is clear that Goldberg insisted on maintaining an arm’s length relationship with Cohen during the meeting. Although Cohen deposed that he has difficulty understanding legal documents, he does not contend that he was prevented from reading the DCA or from consulting with Hippie regarding its terms. See generally Fore v. Parnell-Martin Cos., 192 Ga. App. 851, 852 (1) (386 SE2d 723) (1989). Moreover, while the parties were anxious to complete the transaction, the evidence uncontrovertedly establishes that the behavior of the parties was not such that Cohen’s signature on the DCA was coerced. See Tidwell v. Critz, 248 Ga. 201, 203-204 (1) (282 SE2d 104) (1981). The record thus establishes that Cohen, by signing the unaltered, typewritten DCA, assented to its terms.

Although parol evidence may be used to show no valid agreement ever went into existence, Citizens &c. Nat. Bank v. Williams, 147 Ga. App. 205, 207-208 (4) (249 SE2d 289) (1978), it cannot be used to contradict or vary the terms of a valid written agreement. Id. Cohen’s deposition testimony regarding his understanding that even after signing the documents, Hippie’s review of the documents was necessary before they could be considered final was not evidence regarding the parties’ meeting of the minds, but instead was evidence that the executed documents were subject to Hippie’s modifications notwithstanding Cohen’s acceptance, and accordingly constituted inadmissible parol evidence.

(b) Second, a clear question of material fact exists whether Goldberg assented to the terms of the typewritten DCA. The evidence conflicted whether Goldberg accepted the typewritten agreement by signing it, as Goldberg and Merlin deposed, or whether Goldberg rejected the typewritten agreement by inserting material handwritten changes before signing the document, as Cohen deposed. We note that although Radford and his attorney deposed that they did not observe this aspect of the transaction, Radford’s attorney wrote Merlin the following day that the DCA was an issue “left open with respect to the closing.”

The conflicting evidence raises the possibility that while Cohen, by signing the typewritten agreement, accepted the offer on the terms set forth, Goldberg responded by inserting the material handwritten changes in the terms, thereby constituting a counteroffer. See State of Ga. v. U. S. Oil Co., 194 Ga. App. 1, 2 (389 SE2d 498) (1989). Since it is uncontroverted that Cohen did not initial the changes, if it is established that the typewritten agreement without interlineations was not executed by both parties, Cohen’s refusal to accept the counteroffer would mean there was no sale contract.

(c) The parties place great emphasis on the actions of the parties regarding the DCA after the April 24th meeting. Basically, this evidence reflects that while Cohen accepted the unaltered typewritten agreement (which, together with the employment agreement, provided that his deferred compensation, payable in four years with no limitations based on net profits, would be forfeited should he be fired for cause), he rejected the handwritten proposals in the DCA as well as other subsequently proffered terms made by Goldberg (which provided that payment for his deferred compensation would be spread over a minimum of ten years or longer because of net profit requirements), unless the clause authorizing forfeiture of the payments upon his discharge for cause was eliminated. While other aspects of the transaction were modified by written agreement of the parties after April 24, the record establishes that no subsequent proposal concerning the DCA was accepted by both Cohen and Goldberg/WGC. Accordingly, the evidence establishes that the typewritten DCA, without its interlineations, was the only version of that document that possibly could have been executed by the parties. Although the actions of Cohen and Hippie after April 24 appear consistent with Cohen’s claim that no DCA was executed, that does not control the issue whether any issues of fact exist. Rather, it appears that the actions of the parties after April 24 regarding the DCA were either proposed modifications of an existing agreement or continued negotiations toward executing a first DCA, language in the escrow agreement notwithstanding.

(d) Although Cohen argues that the sale contract was not valid because it was not sufficiently definite (blanks were left in the management agreement), the record establishes that he was fully prepared to go forward with the sale contract (but for the DCA) notwithstanding the offending blanks. Further, the deposition testimony of all the parties, including Cohen, reveals that they did not consider the subject matter of these blanks to be significant. Thus, we do not agree with Cohen that the blanks in the management agreement constituted an essential part of the contract upon which the minds of the parties had not met or upon which there was not an agreement so as to give rise to a valid and binding contract. Compare Kole v. Linkenhoker, 196 Ga. App. 124 (1) (395 SE2d 378) (1990); Jackson v. Easters, 190 Ga. App. 713, 714-715 (1) (379 SE2d 610) (1989). Furthermore, we note that “ ‘[i]f a writing is signed with blanks left to be filled in by the other party, the person signing is bound by it. [Cit.]’ [Cit.]” Fore, supra at 853 (2).

(e) We do not agree with Cohen that there was no valid sale contract until the escrow closed. The argument Cohen raises is basically that even assuming, arguendo, that the unaltered, typewritten DCA was executed and Cohen then informed appellees he would not abide by the terms of that agreement, his actions did not constitute a “breach of contract” as alleged in appellees’ counterclaims because no contract had been formed and would not be formed until all the documents required for the transaction were in the escrow file within the time specified. We do not agree with Cohen that he could repudiate a promise he made in a contract and then use that repudiated promise as the basis for asserting that no contract had ever been created. A party cannot promise to sell a car for $50 and then claim, upon his failure to deliver the car to the purchaser at the agreed place and time, that his own nonperformance of his duty under that promise meant no agreement had been made in the first place. The “conditions” to be fulfilled at the closing of the escrow — i.e., the delivery of corporate seals, stock, and papers verifying the truth of what the parties had already promised, etc. — were not conditions of the duties the parties had assumed but were the first steps in performing those duties as promised. See First Nat. Bank v. Nat. Bank of Ga., 249 Ga. 216, 217-218 (1) (290 SE2d 55) (1982). Because the “Additional Conditions Precedent” in the escrow agreement did not qualify the parties’ acceptance of the contract but instead manifested what the parties had represented in the contract, see 1 Williston, The Law of Contracts, § 78 (3rd ed. 1957), we do not agree with Cohen that the mere existence of the escrow requirements in the context of this transaction meant there was no contract extant for Cohen to breach.

(f) However, given the uncontroverted evidence that the escrow file, which contained all documents compiled by the escrow agent, did not contain a number of the items required to satisfy the escrow agreement, and after reviewing appellees’ answers and particularly the depositions of Radford and his attorney, we conclude that a question of fact exists whether the parties abandoned their performance of the escrow agreement in direct response to Cohen’s alleged breach of the sale contract, see OCGA § 13-4-23, or whether the failure to satisfy the escrow agreement was so unrelated to the dispute over the DCA as to constitute an independent basis for holding that the sale contract terminated, per the escrow agreement provision, because the escrow file was never completed.

2. We agree with appellant Joe Cohen that no question of fact exists whether he was a contracting party to the April 24 agreements allegedly executed by his son, Cohen, and appellees. It is uncontroverted that Joe Cohen signed none of the agreements and that no party at the April 24 meeting had actual or apparent authority to act on Joe Cohen’s behalf. Since the agreements signed included a transfer of real property and matters which were not to be performed within one year from the making of the agreements, any attempt by appellees to include Joe Cohen as a contracting party to the transaction must fail under OCGA § 13-5-30 (4) and (5). Thus, to the extent the trial court’s order on Joe Cohen’s motion for summary judgment addressed appellees’ claim that Joe Cohen was obligated under the contract, the denial of the motion on this issue was error.

3. The trial court denied the motion for summary judgment by Joe Cohen made on the ground that he was not liable for tortious interference in the sale contract. We disagree and reverse. In doing so, we do not rely on Joe Cohen’s argument that appellees cannot recover for the alleged • interference because the underlying contract was unenforceable, see, e.g., Shanco Intl., Ltd. v. Digital Controls, 169 Ga. App. 184, 186 (2) (312 SE2d 150) (1983), nor do we give credence to appellees’ argument that Joe Cohen, who did not sign any aspect of the contract, was somehow rendered a party thereto. See OCGA § 13-5-30 (4), (5); Div. 2, supra. Instead, we conclude that he was an intended beneficiary of the sale contract and as such cannot be subject to appellees’ tortious interference claim.

The record reveals that Joe Cohen had executed a letter of credit to the T-Shirtery’s lender in January 1986 in order to help his son, Cohen, obtain the financial backing necessary to keep the T-Shirtery in business. Although a security agreement was thereafter executed entitling Joe Cohen to recover the principal and interest on the letter of credit plus $5,000 upon certain conditions of default, it does not appear that Joe Cohen received any payment from his son or the TShirtery merely for extending the letter of credit. The result of the contract between Cohen and appellees, however, was that instead of extending a letter of credit to a corporation wholly owned by his son, Joe Cohen’s letter of credit would be benefitting a corporation wholly owned by WGC, a corporation in which his son had only a 37.5 percent interest. Thus, a provision was inserted in the shareholders’ agreement authorizing the payment of $600 a month to Joe Cohen so long as the T-Shirtery utilized Joe Cohen’s letter of credit, notwithstanding anything to the contrary in the sale contract executed by Cohen, the T-Shirtery, and appellees.

The record establishes that the parties to the sale contract intended that Joe Cohen should be the direct beneficiary of this provision, a position which granted Joe Cohen the standing to enforce the contract under OCGA § 9-2-20 (b). Compare Bartley v. Augusta Country Club, 172 Ga. App. 289, 290 (322 SE2d 749) (1984); Donalson v. Coca-Cold Co., 164 Ga. App. 712, 713-714 (2) (298 SE2d 25) (1982). It thus appears that appellees are claiming that a third-party beneficiary of the contract was tortiously interfering in the very contract under which he was to receive a benefit. Although we have held that an intended beneficiary may assert a claim of tortious interference against a third party who infringes upon the beneficiary’s rights under a contract, Rouse v. Crum, 169 Ga. App. 439, 441 (313 SE2d 140) (1984), research has not disclosed a situation in which a claim of tortious interference with contractual relations has been made against an intended beneficiary to that contract. It is well established, however, that “[t]ortious interference with contractual relations is applicable only when the interference is done by one who is a stranger to the contract. [Cits.]” Jet Air, Inc. v. Nat. Union Fire Ins. Co., 189 Ga. App. 399, 403-404 (4) (375 SE2d 873) (1988). Applying that principle here, we hold that because Joe Cohen was an intended beneficiary of the contract, he was not a “stranger to the contract” since he was legally authorized to enforce the contract under OCGA § 9-2-20 (b). Accordingly, appellees’ claims against him for tortious interference fail as a matter of law. The trial court erred by denying Joe Cohen’s motion for summary judgment as to appellees’ claims against him for tortious interference with contractual relations.

4. Joe Cohen enumerates as error the trial court’s denial of his motion in limine. Although there are 7,900 pages of record in this five-year litigation, Joe Cohen does not provide a record reference to any court order denying this motion as required by Court of Appeals Rule 15 (c) (3). The trial court’s December 5, 1990 order denying Joe Cohen’s motion for summary judgment does not reference any motion in limine. However, the arguments in his brief indicate that the trial court’s ruling denying Joe Cohen’s motion for summary judgment on the tortious interference claim implicitly denied his motion to limit introduction of evidence of damages suffered as a result of the alleged tortious interference. Thus, it appears that our holding in Division 3 that Joe Cohen was entitled to summary judgment on the tortious interference claim resolves this enumeration as well.

5. The trial court in its December 12, 1990 order granted cross motions for partial summary judgment that eliminated from the litigation all claims arising out of alleged violations of federal and state securities laws. The order addressed only these securities claims; we note that the judgments on the pleadings entered against appellants on December 5, 1990 did not encompass these claims.

Pretermitting all questions regarding the validity and consummation of the sale contract, we find no error in the trial court’s grant of appellees’ motion for summary judgment on the securities claims. To determine whether the WGC stock contemplated under the sale contract constituted a “security” under either the Georgia Securities Act of 1973, OCGA § 10-5-1 et seq., or the federal securities acts, we apply the test in Landreth Timber Co. v. Landreth, 471 U. S. 681, 685-686 (105 SC 2297, 85 LE2d 692) (1985), which is whether the stock “bears such characteristics usually associated with common stock that a purchaser justifiably may assume that appropriate securities] laws apply.” Henderson v. KMSystems, Inc., 188 Ga. App. 893, 897 (374 SE2d 550) (1988). Substantially similar to the situation in Henderson, the parties sub judice signed a shareholders’ agreement which provided in pertinent part that each certificate would contain a notice stating (1) that the stock was subject to the conditions in the shareholders’ agreement (such as restrictions on transfer without WGC’s prior written consent and the right of WGC to repurchase the stock upon the shareholder’s death, retirement, or termination) and (2) that the stock was not registered under the federal or Georgia securities acts and could not be sold or otherwise transferred unless the securities were registered. Accordingly, because of the substantial impairment on the negotiability Of the stock which the conditions presented and the express negation of any assumption that the Georgia or federal securities acts applied, the stock here, as in Henderson, did not meet the statutory definition of “security” under either the Georgia or federal securities act. Id.

A stock not meeting the definition of a security under the test in Landreth Timber Co., supra, may otherwise come within the Georgia or federal securities acts if the stock qualifies as one of the “unusual instruments” not easily characterized as “securities.” Id. at 690; Henderson, supra. To make this determination, we apply the economic reality test in Securities &c. Comm. v. W. J. Howey Co., 328 U. S. 293 (66 SC 1100, 90 LE 1244) (1946); Landreth Timber Co., supra at 689, which is likewise applicable to Georgia’s securities act. Tech Resources v. Estate of Hubbard, 246 Ga. 583 (272 SE2d 314) (1980); Henderson, supra at 897-898 (2). “ ‘[T]he touchstone (of a security) is the presence of an investment in a common venture premised on a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others.’ [Cit.]” Tech Resources, supra at 584. “[T]here must be an investment, a reasonable expectation of profits, and a reliance on the management of another party to bring about the profits.” Id. at 585. The evidence in the case sub judice established that had the sale contract contemplated by the parties been performed, Cohen would have exchanged his T-Shirtery stock for 37.5 percent of WGC stock and positions as WGC’s vice-president of marketing and one of three members of WGC’s board of directors. Cohen’s duties in WGC clearly would have placed him in control of many essential income-generating decisions from which he, as an investor, would expect profits to flow. See D. K. Properties v. Osborne, 143 Ga. App. 832, 835-836 (1) (240 SE2d 293) (1977). “[Cohen’s] investment relied upon and expected returns based upon [his] own efforts and not solely those of another. [Cits.] . . . [Cohen’s] involvement in the business here was not merely ‘token’ involvement ([cits.]), and assuredly under the undisputed evidence [he] did not look solely to the efforts of [appellees] for enhancement of [his] investment and the ultimate success of the business. [Cit.] Accordingly, [he] has no claim for violations of the [securities acts] in the sale of securities . . . and no concomitant claim for attorney fees under [OCGA] § 10-5-14.” Nicholson v. Harris, 179 Ga. App. 35, 36 (345 SE2d 63) (1986). See also Tech Resources, supra at 585.

Given that the underlying transaction did not qualify as a securities transaction, we need not determine whether Joe Cohen was a party to that transaction so as to have standing to assert violations of the state and federal securities laws against appellees.

6. The other major issue in the appeals is the effect of the dismissal with prejudice of all claims by and against the T-Shirtery (based on the bankruptcy court’s settlement of the T-Shirtery’s estate) on appellants’ remaining claims. However, the procedural status of the trial court’s rulings on this issue (in the form of judgments on the pleadings and grants of summary judgment) precludes us from reaching the heart of the parties’ arguments.

(a) Both Cohen and Joe Cohen appeal from judgment on the pleadings entered against each of them on December 5, 1990. In the December 5th judgments the trial court, after referencing requests by appellees for judgment as a matter of law dismissing both appellants’ claims, entered judgment on the pleadings pursuant to OCGA § 9-11-12 (c) in favor of appellees and against Cohen on his claims of mismanagement, breach of fiduciary duty, fraud, conspiracy, intentional infliction of emotional distress, attorney fees under OCGA § 13-6-11, and damages, and against Joe Cohen on his claims arising out of the enforceability of his security agreement in property of the T-Shirtery, ownership of T-Shirtery stock, fraud, breach of fiduciary duty, and damages. We note that these judgments were expressly included in appellants’ appeals in Case Nos. A91A1424 and A91A1427 from the trial court’s grant of partial summary judgment addressed in Division 5, supra. Because the December 5th judgments adjudicated fewer than all claims, they were not final judgments and would have required compliance with either OCGA § 9-11-54 (b) or OCGA § 5-6-34 (b), see Whiddon v. Stargell, 192 Ga. App. 826, 827 (386 SE2d 884) (1989), had not OCGA § 5-6-34 (d) authorized their inclusion in appellants’ direct appeals from the grant of partial summary judgment. OCGA § 9-11-56 (h).

Appellants contend that the trial court’s entry of the December 5th judgments on the pleadings was error. There was no motion filed by appellees expressly requesting judgment on the pleadings, although it does not appear that the trial court was acting ex mero muto because of language in the judgments that the rulings were in response to requests by appellees. Thus, we need not decide whether, as with summary judgment, a judgment on the pleadings may be granted to a party who has not even moved for it. McKay v. Natty, 173 Ga. App. 372 (1) (326 SE2d 560) (1985). However, while our review of the record reveals two different types of motions filed by appellees requesting dismissal of appellants’ complaints, it does not matter which of these motions was the source of the trial court’s December 5th judgments since we agree with appellants that entry of those judgments was error.

First, the record presents the possibility that the December 5th judgments were in response to motions made in appellees’ responsive pleadings requesting the trial court to dismiss appellants’ complaints based on appellees’ defenses of failure to state a cause of action upon which the relief sought could be granted. See OCGA § 9-11-12 (b) (6). Such motions were properly a part of appellees’ responsive pleadings. Henderson v. Fulton County Bd. of Registration &c., 231 Ga. 173, 175 (1) (200 SE2d 739) (1973). However, pretermitting the issue whether a motion to dismiss the complaint pursuant to OCGA § 9-11-12 (b) (6) can properly invoke a ruling on judgment on the pleadings under OCGA § 9-11-12 (c), neither the December 5th judgments nor the record indicates that a motion for preliminary hearing under OCGA § 9-11-7 (b) was filed, as required when a motion pursuant to OCGA § 9-11-12 (b) is raised in an answer, or that the preliminary hearing required by OCGA § 9-11-12 (d) was held. Hayes v. Superior Leasing Corp., 136 Ga. App. 98 (220 SE2d 86) (1975). Nor can the motion for summary judgment filed by appellees on November 21, 1990 be considered an adequate replacement for the required motion for preliminary hearing both because of its content, compare Hayes, supra at 100-101, and the difference in the procedural requirements between OCGA § 9-11-56 and OCGA § 9-11-12 (c).

It is apparent that appellants had no advance notice that the trial court would rule on appellees’ motions to dismiss and were not afforded a reasonable opportunity to present all materials made pertinent to the motion. Under these circumstances, the judgments on the pleadings against appellants were procedurally defective and the trial court should not have entered the judgments on the pleadings dismissing appellants’ complaints. See Goodwin v. First Baptist Church of Augusta, 226 Ga. 524, 525-526 (1) (175 SE2d 868) (1970).

Second, it is possible, as the parties assert, that the judgments on the pleadings were in response to the November 21st motion for summary judgment, filed only two weeks before the December 5th judgments were entered. There is no statutory authority for a trial court to treat a motion for summary judgment as one for judgment on the pleadings merely by excluding from consideration all matters outside the pleadings. Compare OCGA § 9-11-12 (b), (c) (motions to dismiss or for judgment on pleadings treated as summary judgment motions where matters outside pleadings are presented to and considered by court). However, even if the parties’ supposition is correct that the trial court did convert the motion for summary judgment into judgments on the pleadings and assuming, arguendo, such a conversion was proper, we find that the judgments nevertheless must be reversed.

Appellants contend that the trial court’s conversion of the summary judgment motion into OCGA § 9-11-12 (c) judgments was improper because the judgments on the pleadings were rendered less than 30 days after the motion was filed, see OCGA § 9-11-56 (c); USCR 6.2, thereby depriving appellants of their right to respond. See generally Leverich v. Roddenberry Farms, 253 Ga. 414 (321 SE2d 328) (1984). While we note that the entry of summary judgment without allowing the full 30 days to respond is not always reversible error when the record establishes that summary judgment was proper as a matter of law, so that the respondents could show no harm resulting from the procedural error, see Leverich, supra; Ramsey Winch Co. v. Trust Co. Bank, 153 Ga. App. 500, 502 (4) (265 SE2d 848) (1980), that analysis does not avail appellees since the procedural status of a judgment on the pleadings precludes us from addressing matters outside the parties’ pleadings, such as the dismissal with prejudice of claims for and against the T-Shirtery. Thus, only if the pleadings alone established as a matter of law that entry of judgment under OCGA § 9-11-12 (c) was proper could a procedural error be pretermitted. In the case sub judice, even pretermitting the lack of 30 days notice, it is clear that the trial court’s grant of judgments on the pleadings was improper because taking as true the material allegations of appellants’ complaints, it could not be said that their pleadings failed to state causes of action or otherwise affirmatively show no claims in fact existed. See Bacon v. Liberty Mut. Ins. Co., 198 Ga. App. 436 (401 SE2d 625) (1991); Holzman v. Nat. Bank of Ga., 144 Ga. App. 710 (1) (242 SE2d 299) (1978). Accordingly, the trial court erred by entering the December 5th judgments.

(b) We next consider the same trial judge’s grant of summary judgment to appellees in two orders, dated December 21, 1990 and filed January 3, 1991, on the identical grounds as those set forth in the December 5th judgments on the pleadings. We note that although appellants’ notices of appeal in Case Nos. A91A1424 and A91A1427 (see Division 6 (a), supra) were filed December 14, 1990, it is not necessary to determine whether the express inclusion of the December 5th judgments as among those orders being included in the appeals meant that the filing of those notices acted as supersedeas to prevent the trial court from entering the January 3rd orders, see generally Aetna Cas. &c. Co. v. Bullington, 227 Ga. 485 (1) (181 SE2d 495) (1971); International Images v. Smith, 181 Ga. App. 543, 544 (352 SE2d 846) (1987), because appellants did not pay costs until March 1991 and a notice of appeal does not serve as a supersedeas to deprive the trial court of jurisdiction over the case until all costs have been paid. Duncan v. Ball, 172 Ga. App. 750, 751 (1) (324 SE2d 477) (1984).

It does not appear that the January 3rd orders were in response to any motion to reconsider or revise the December 5th judgments. Compare MARTA v. Gould Investors Trust, 169 Ga. App. 303, 306-307 (2) (312 SE2d 629) (1983). While an interlocutory judgment is subject to revision at any time before the entry of final judgment, OCGA § 9-11-54 (b); Union &c. Co. v. Trust Co. Bank, 143 Ga. App. 715, 716-717 (240 SE2d 100) (1977), rev’d on other grounds, 241 Ga. 343 (245 SE2d 297) (1978), the January 3rd orders do not demonstrate the exercise of the trial court’s power to revise, correct, revoke, modify, amend, or vacate the December 5th judgments. See id.; McCoy Lumber Co. v. Garland Lumber Sales, 182 Ga. App. 75, 76 (354 SE2d 686) (1987). Instead, in executing the January 3rd orders, the trial court struck proposed paragraphs vacating and setting aside those earlier judgments. Furthermore, given the trial court’s express recitation in the December 5th judgments that it excluded consideration of all matters outside the pleadings and the difference in procedural status between judgments on the pleadings and summary judgments, compare Bacon, supra at 436 with Reeves v. J. M. Givan Co., 197 Ga. App. 617, 618 (398 SE2d 765) (1990), it cannot be said that the January 3rd orders on summary judgment were mere clerical corrections of the December 5th judgments on the pleadings, see OCGA § 9-11-60 (g), or a mere clarification of the earlier orders. See Davis v. Davis, 250 Ga. 206, 207 (296 SE2d 722) (1982).

“ ‘Where jurisdiction exists both of the subject matter and of the parties, as well as jurisdiction to make the particular order in question, an order is not void, but voidable, however erroneous or irregular it may be.’ [Cit.] Thus, the court’s [December 5th judgments on the pleadings were] not void, but merely voidable. [Cit.] A voidable or erroneous order cannot be disregarded; it is valid and enforceable until set aside. [Cit.] Moreover, unlike a void order, a merely erroneous order will support rights, remedies and proceedings predicated thereon. [Cit.]” Golden Key &c. Lounge v. Key &c. Corp., 137 Ga. App. 251, 252-253 (2) (223 SE2d 284) (1976). Since the December 5th judgments were valid and conclusive as to the issues raised therein unless and until set aside, and the trial court did not exercise its inherent power to set aside those judgments while they were still in the breast of the court, see generally Sunn v. Mercury Marine, 166 Ga. App. 567, 568 (305 SE2d 6) (1983), the January 3rd orders were of no effect and are therefore vacated. Accordingly, we need not consider appellants’ argument that entry of the December 5th judgments adversely affected the 30 day notice period they were entitled to receive under OCGA § 9-11-56 (c) to respond to appellees’ motion for summary judgment as to those matters for which the procedural deficiency was not harmless error. See Ramsey Winch Co., supra.

Therefore, because the December 5th judgments on the pleadings are reversed and the January 3rd orders are vacated, the viability of appellants’ remaining claims remains for adjudication by the trial court.

7. Cohen contends error in the trial court’s order realigning appellants as the defendants in this case. We note that although Cohen’s notices of appeal were filed prior to the entry of the March 1991 realignment order, the appeals were docketed in this court in May 1991 and the error addressing the March 1991 order was raised on appeal of the appealable order. Accordingly, we have jurisdiction to address this enumeration. See Vowell v. Carmichael, 235 Ga. 410 (219 SE2d 735) (1975).

A trial court has the discretion to realign the parties at any stage of the action and on such terms as are just. Cawthon v. Waco Fire &c. Co., 259 Ga. 632, 633 (386 SE2d 32) (1989). The trial court’s exercise of that discretion will not be controlled unless it is abused. Id. at 634. Unlike the situation im Cawthon, supra, in which the appealing party demonstrated that the trial court’s realignment was an abuse of discretion because of the harm (in the form of the allocation of jury strikes) which resulted from the trial court’s decision, Cohen has failed to demonstrate how the realignment of the parties constituted an abuse of the trial court’s discretion here. Accordingly, we will not reverse the trial court’s exercise of its discretion.

Decided November 19, 1991

Reconsiderations denied December 4, 1991

Powell, Goldstein, Frazer & Murphy, Frank Love, Jr., William G. Leonard, James D. Meadows, for appellants.

Bedford, Kirschner & Venker; Andrew R. Kirschner, Gambrell, Clarke, Anderson & Stolz, Irwin W. Stolz, Jr., Seaton D. Purdom, for appellees.

Judgments affirmed in part and reversed in part in Case Nos. A91A1424 and A91A1427. Judgments vacated in Case Nos. A91A1425 and A91A1426.

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

       We will refer to this party as “Joe Cohen” in this opinion although we are aware that Joe Cohen died shortly after this litigation began and his interests are now represented by the executors of his estate.

       We reject Jay Cohen’s argument that Goldberg admitted in responsive pleadings that he was seeking to enforce the DCA with the interlineations merely because Goldberg referred in his pleadings to the DCA in the escrow file. He later clarified it was the unaltered typewritten version of that agreement in the escrow file that he was seeking to enforce.

       Cohen and Joe Cohen appeal from the January 3rd orders in Case Nos. A91A1425 and A91A1426.


author: Birdsong, Presiding Judge.

text:
    A91A1694.
    FREEMAN v. THE STATE.
    (413 SE2d 774)
   Birdsong, Presiding Judge.

Ronnie Dean Freeman was indicted on three counts of child molestation and one count of cruelty to children. He appeals from his conviction of two counts of child molestation. Held:

1. Appellant contends that the trial court erred in denying his motions for directed verdict of acquittal and for new trial on the general grounds, as the quantum of evidence was insufficient to authorize a rational trier of fact to convict him of the two counts of child molestation beyond a reasonable doubt.

The evidence presented by the State showed that in 1988 and 1989 appellant resided in Braselton, Georgia, with his second wife, where his 12-year-old daughter from his first marriage visited him. In the summer of 1988 a school friend of his daughter (aged 13) spent the weekend there. The friend testified that late Saturday night appellant came into the room where the two girls were sleeping and began touching her on her “bottom private place,” first outside then inside her panties. When she tried to awaken appellant’s daughter he told her to go back to sleep, he was just checking on them, and left.

About September of 1989, another friend (aged 12) spent the weekend with appellant’s daughter in appellant’s house. The two girls were sleeping on a mattress on the living room floor when the friend was awakened by hearing a “nasty movie” playing on the television. Appellant came over and picked up her hand and placed it on his penis. The victim did not actually see appellant, but testified that he was the only man in the house. She told her older sister about the incident and her sister advised her to tell their mother, but she did not do so immediately. However, her sister later confronted her about it and she confided in her mother, who reported it to investigator Vickie Underwood of the Jackson County Sheriff’s Office. When the first victim learned that other girls had reported similar incidences, she also contacted Investigator Underwood, who interviewed both victims. Appellant denied all charges against him stemming from the investigation.

“ ‘The direction of a verdict of acquittal is proper only where “there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal.” (Cits.) If there is any evidence of guilt, it is for the jury, rather than the court, to decide whether the evidence is sufficient to sustain a conviction. (Cit.)’ [Cit.]” Hall v. State, 200 Ga. App. 244, 245 (407 SE2d 470). “It is well settled that the appellate court assesses the sufficiency of competent evidence and not its weight. [Cit.] Our review of the record shows that the evidence adduced was more than sufficient to authorized the rational trier of fact to find appellant guilty as charged, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Rose v. State, 195 Ga. App. 399, 400 (1) (393 SE2d 459); compare Wilburn v. State, 199 Ga. App. 667 (1) (405 SE2d 889) (applying the Jackson v. Virginia test where sufficiency of evidence is challenged by a motion for directed verdict).

2. Appellant assigns error in the trial court’s refusal to instruct the jury on the law of simple battery upon written request, as the allegations of the indictment and the evidence presented at trial demanded such a charge. We do not agree. “Even if simple battery can be an included offense in child molestation as a matter of fact, it was not error to refuse to give appellant’s request. The victim[s] testified to appellant’s commission of acts . . . which, if believed by the jury, would clearly show that the he had committed the crime of child molestation. . . . [N]othing in his testimony [nor that of the other defense witnesses] would authorize a finding that he had committed the crime of simple battery rather than child molestation. . . . Under this testimony, appellant either committed [the acts] of child molestation or he did not. His testimony would not show that he had merely made physical contact of an insulting or provoking nature with the victim [s] rather than fondling [them] with the intent to arouse or satisfy his sexual desires. Compare Conejo v. State, [189 Ga. App. 14, 17 (3) (374 SE2d 826)]. Accordingly, it was not error to refuse to give the requested instruction. [Cits.]” Brooks v. State, 197 Ga. App. 194, 195 (1) (397 SE2d 622).

3. Appellant asserts that the trial court erred by instructing the jury that all witnesses are presumed to speak the truth, and the jury should reconcile any conflict in the evidence, if possible, to make them speak the truth. “The charge that witnesses are presumed to speak the truth is not unconstitutionally burden-shifting, when the judge instructs the jury as to how the presumption of credibility may be overcome and gives explicit instructions on the presumption of innocence and the state’s burden of proving guilt beyond a reasonable doubt. [Cit.]” O’Donnell v. State, 258 Ga. 782, 783 (2) (374 SE2d 729). The trial judge fully and explicitly charged the jury on the defendant’s presumption of innocence, the State’s burden of proving guilt beyond a reasonable doubt and how the presumption of credibility may be overcome. Having met the O’Donnell requirements, there was no error.

4. Appellant complains that the trial court erroneously allowed testimony from a victim’s mother and Investigator Underwood relat-‘ ing statements made to them by the victims, without first holding a voir dire outside the presence of the jury to determine if the statements were competent because they possessed some indicia of reliability under OCGA § 24-3-16. “ ‘The Georgia Supreme Court, in Reynolds v. State, 257 Ga. 725 (2) (363 SE2d 249), decided this issue adversely to appellant, by holding that “OCGA § 24-3-16 does not require a hearing to determine ‘indicia of reliability’ be held prior to receiving the testimony . . . (and) we cannot say that failure to do so in this case was error. . . .” The trial (court) is presumed to know the law (cit.) and presumed to “faithfully and lawfully (perform) the duties devolving upon it by law.” (Cit.) Hence, implicit in any ruling by a trial court is that (it) made the necessary finding of admissibility before admitting such evidence.’ [Cit.]” In the Interest of D. R. C., 198 Ga. App. 348, 349-350 (2) (401 SE2d 754). Accord Hurst v. State, 198 Ga. App. 380 (1) (401 SE2d 348); compare Gregg v. State, 201 Ga. App. 238, 239 (3a) (411 SE2d 65).

5. Contrary to appellant’s arguments, the victims’ out-of-court statements to these two witnesses were also properly admitted in evidence under OCGA § 24-3-16 because the victims were available to testify and did testify at trial. Reynolds v. State, supra; Howard v. State, 200 Ga. App. 188, 190 (4) (407 SE2d 769).

6. Appellant contends that the trial court failed to read any allegation of the grand jury contained in the indictment to show where the alleged crimes occurred and, as venue is an essential part of the State’s case, omitting this allegation in the charge to the jury was reversible error. Appellant cites no authority for this assertion, and the evidence was undisputed that the alleged molestations took place in appellant’s residence in Jackson County. Since defense counsel admitted at trial that the court had instructed the jury they must find that the offenses had occurred in Jackson County in order to convict, we conclude that if there was any error it was harmless.

7. Appellant’s enumeration of error concerning the refusal of the trial court to sever the counts of the indictment for trial must also fail, as “the offenses charged . . . were obviously related in that [all four] involved sexual misconduct directed by the appellant against [friends of his daughter’s] at a time when all of them were [visiting] under the same roof. Under such circumstances, even had the appellant been tried separately on each of these charges, evidence of the other offense [s] would have been admissible to establish his lustful disposition and state of mind. [Cits.] It follows that these charges were properly joined in the same indictment and that the trial court was not required to sever them for trial. [Cit.]” Thompson v. State, 181 Ga. App. 163, 165 (351 SE2d 483). Accord Stinson v. State, 197 Ga. App. 687 (1) (399 SE2d 278). We find no grounds for reversal.

Decided November 22, 1991

Reconsideration denied December 4, 1991.

N. David Wages, for appellant.

Timothy G. Madison, District Attorney, for appellee.

Judgment affirmed.

Pope and Cooper, JJ., concur.