text:
    A98A1263.
    JOINER v. LANE.
    (508 SE2d 203)
   Johnson, Presiding Judge.

Gary Joiner appeals from a judgment in the amount of one million dollars entered upon the jury’s verdict in favor of John Lane. For the reasons set forth below, we affirm.

This case involves an intentional tort' arising out of a shooting incident in which Lane suffered serious and permanent injuries. At trial, the issues of liability and damages were hotly contested. The jury was required to judge the credibility of witnesses who often gave testimony in such direct and complete conflict with the testimony of other witnesses that no reasonable juror could but conclude that some were outright lying. This Court does not re-weigh the evidence before the trial court or judge witness credibility, as these are not appellate court functions. Horney v. Lawrence, 189 Ga. App. 376, 378 (3) (375 SE2d 629) (1988). Rather, we consider only the sufficiency of the evidence, and if some evidence exists to support the jury’s verdict, we will uphold it. Parr v. Pinson, 182 Ga. App. 707 (1) (356 SE2d 740) (1987).

On appeal, this Court must construe the evidence and every reasonable inference and presumption arising therefrom in support of the verdict and judgment. See Dept. of Transp. v. Hillside Motors, 192 Ga. App. 637, 639 (2) (385 SE2d 746) (1989); Worn v. Sea-Cold Svcs., 135 Ga. App. 256 (3) (217 SE2d 425) (1975). When viewed in this light, the evidence showed that Joiner and one of his sons flagged Lane down as he drove his truck past Joiner’s home. Lane stopped and got out of his truck, whereupon Joiner told his son to “shoot the son of a bitch.” Joiner’s son responded by retrieving a high powered rifle which was concealed behind a tree. He fired three shots at Lane. One of the bullets struck Lane in the upper leg, causing a severe fracture of the femur and the losé of a substantial amount of flesh. Lane suffered severe pain as a result of his injuries. His medical expenses were substantial, as was his loss of income. His injuries resulted in a 30 percent permanent impairment to his body. There was other circumstantial evidence at trial linking Joiner as a fully participating party to this shooting, though it is clear that it was Joiner’s son who actually pulled the trigger. A detailed discussion of this evidence is not necessary to this opinion.

1. The trial court did not err in denying Joiner’s motion for directed verdict. The evidence was in conflict as to numerous material issues. A verdict shall be directed when there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. Pendley v. Pendley, 251 Ga. 30 (1) (302 SE2d 554) (1983); OCGA § 9-11-50 (a). Construing the evidence in a light most favorable to Lane, as we are required to do, we find there was evidence to support the jury’s verdict. See Ga. Power Co. v. Irvin, 267 Ga. 760, 762 (1) (482 SE2d 362) (1997); Flournoy v. Brown, 226 Ga. App. 857, 861 (4) (487 SE2d 683) (1997).

2. Joiner argues the trial court erred in several ways in its instructions to the jury. We find his contentions to be without merit. As a general rule a requested charge should be given where it has been raised by the evidence, embraces a correct and complete principle of law, has not been substantially included in the general instructions given, and is specifically adjusted to the evidence. See SCM Corp. v. Thermo Structural Prods., 153 Ga. App. 372, 379 (7) (A) (265 SE2d 598) (1980). However, a trial court does not err in refusing to give a charge which is confusing, misleading, inapt, not precisely tailored or adjusted to the evidence or not authorized by the evidence. See generally Hill v. State, 259 Ga. 557, 558 (3) (b) (385 SE2d 404) (1989); Continental Research Corp. v. Reeves, 204 Ga. App. 120, 126-127 (3) (419 SE2d 48) (1992).

(a) The trial court did not err in refusing to charge Joiner’s request to charge nos. 23, 24, and 25. These charges pertained to imputed liability resulting from either an agency or parental relationship. The requests to charge were not tailored to the evidence presented at trial and also were inapt as they failed to inform the jury that these were issues unrelated to the question of civil conspiracy. Thus, a fair risk exists that the charges could have misled the jury as to their application. See Continental Research, supra.

(b) The trial court charged the jury that its oath required them to make a true verdict based on the law given them and the evidence, a verdict that speaks the truth without favor or affection to either side, and that the jury has the duty to do only what the law says it should do without favor or affection to either side. Because these charges substantially informed the jury of the legal principles in Joiner’s request to charge no. 6, the trial court did not err in declining to give the charge in the exact language requested. See Bedeski v. Atlanta Coliseum, 224 Ga. App. 435, 436 (2) (480 SE2d 881) (1997).

(c) The trial court did not err by declining to give Joiner’s request to charge no. 13, a pattern jury charge on proximate cause, which Joiner described at trial as a “basic proximate cause charge.” On its face, the request implied that there could only be one proximate cause of an accident, that is, the dominant cause. But “there may be more than one proximate cause of an injury” and this appears to be a particularly relevant concept in cases in which legal issues of conspiracy, joint tortfeasors or joint venture have been raised. See Dept. of Transp. v. Blair, 220 Ga. App. 342 (1) (469 SE2d 446) (1996). In this case, a primary issue for jury resolution was whether Joiner wrongfully acted in concert with or otherwise engaged in conduct to command or counsel his son to shoot Lane. The trial court did not err in failing to give the charge as requested because it was not tailored to the evidence and accordingly, a fair risk existed that the jury would have been confused and misled as to the issue before it. See Roberts v. Chapman, 228 Ga. App. 365, 367 (2) (492 SE2d 244) (1997); Lindley v. State, 225 Ga. App. 338, 342 (2) (a) (484 SE2d 33); Mattox v. MARTA, 200 Ga. App. 697, 699 (4) (409 SE2d. 267) (1991).

Joiner has not specifically argued that the trial court’s failure to give an appropriate proximate cause charge, upon denial of his own request concerning proximate cause, was error. Compare Lynd v. State, 262 Ga. 58, 60 (8) (414 SE2d 5) (1992) and DeKalb County v. Lenowitz, 218 Ga. App. 884, 887 (1) (463 SE2d 539) (1995) with Weems v. State, 268 Ga. 142, 145 (11) (485 SE2d 767) (1997). The trial court merely charged the jury that in order to be held liable, Joiner must “have participated in some fashion that got the shooting done.” This action was not defended by Joiner on the basis that the act of his son in shooting Lane with a high-powered rifle was not the direct and proximate cause of Lane’s injuries and damage. In fact, it is undisputed, clear and palpable that it was. Rather, Joiner defended claiming that his son justifiably shot Lane and/or without any command, order, suggestion or participation by him. However, there was evidence to show Joiner acted in direct concert with his son in bringing about the shooting. Under these particular facts, the inexplicable failure of the trial court to give an appropriate charge on proximate cause, upon denial of Joiner’s charge request, while clearly error, is harmless and not serious enough to warrant a reversal.

(d) The trial court did not err in charging the jury on the principle of parties to a crime. While the parties argued the case to the jury on theories of agency and civil conspiracy between Joiner and his son to shoot and injure Lane, and the trial court instructed the jury on the law regarding those theories, what the jury had before it was in fact a garden variety intentional tort case where the evidence supported the jury’s conclusion that Joiner and his son had acted in concert to bring about the shooting upon which this claim for damages was based. The acts described in the charge on parties are acts which, if found by the jury to exist, would constitute circumstantial evidence that Joiner and his son acted in concert to commit an intentional tortious act injuring Lane. If the jury found Joiner to be a party to the shooting because he counseled or commanded his son to shoot Lane, Joiner would be a classic joint tortfeasor. He would be a tortfeasor who acted in concert with another to inflict a single indivisible injury. See generally Posey v. Medical Center-West, 257 Ga. 55, 56-58 (354 SE2d 417) (1987); see OCGA § 51-12-30. Upon examining the contested charge on parties in the context of the entire charge, we find that no fair risk exists that the jury was misled. See also Deese v. Carroll &c. Hosp., 203 Ga. App. 148, 149-150 (1) (416 SE2d 127) (1992). Assuming without deciding that a small portion of the contested charge was not adequately adjusted to the evidence or tailored to a civil suit alleging an intentional tort of battery, an inappropriate charge, unless harmful, is not grounds for reversal. See Gene Thompson Lumber v. Davis Parmer Lumber Co., 189 Ga. App. 573, 577 (5) (377 SE2d 15) (1988).

The only exception taken to the charge on parties to a crime was that it suggested to the jury: (i) if one were a party to the crime or actually committed the crime this would give rise to a tortious cause of action and (ii) a tortious cause of action could not arise because Joiner had already been acquitted of the crime. The charge was not erroneous for either reason. The jury was charged that Joiner was not charged in this case with aggravated assault and that he had been acquitted of that offense in an earlier trial. The charges given did not expressly or tacitly suggest that if Joiner were a party to or a perpetrator of the crime this would automatically give rise to a tortious cause of action. Because different standards of proof exist as to criminal cases and civil actions and because civil actions require a lower burden of proof, Joiner’s acquittal of aggravated assault would not bar his liability for tortious conduct. See Webb v. McDaniel, 218 Ga. 366, 368 (127 SE2d 900) (1962). As the only grounds to which Joiner excepted to the charge are without merit, there remains no other viable claim of error as to this charge. See James v. Tyler, 215 Ga. App. 479, 482 (5) (451 SE2d 506) (1994); Delaney v. Lakeside Villa, 210 Ga. App. 430 (2) (440 SE2d 668) (1993).

(e) The trial court did not err in failing to give Joiner’s request to charge no. 26 as to presence at the scene. The requested charge was imperfect and created a fair risk of being misleading because it did not correctly state that mere presence at the scene of the shooting is not sufficient to create liability. See Roberts, supra; Lindley, supra. A requested charge must be given only where it embraces a correct and complete legal principle, is adequately adjusted to the facts and is not otherwise included in the general instructions given. Morris v. State Farm &c. Ins. Co., 203 Ga. App. 839, 840 (3) (418 SE2d 119) (1992). Viewing the charges in their totality, the jury was adequately instructed regarding the legal principle of mere presence at the scene of the shooting.

3. Joiner enumerates that the trial court erred in making inconsistent rulings concerning the admission of evidence of prior difficulties between the parties. We disagree.

(a) The parties to this suit are Gary Joiner and John Lane. Any contention by Joiner in support of this enumeration regarding the admission of any evidence of difficulties between parties other than Gary Joiner and John Lane is not reasonably contained within the scope of this enumeration and is not preserved for appellate review. See Lenowitz, supra. The evidence admitted as to incidents involving the confrontation of Gary and Jimmy Joiner with Mark Lane and Erozier Clark and the confrontation between Gary Joiner and Jeff Lane therefore are not before this Court for review.

Further, regarding the trial court’s failure to let Jimmy Joiner testify as to his recollection of the confrontation he and Gary Joiner had with Mark Lane and Erozier Clark, appellant Gary Joiner has not shown how his recollection of this event would materially differ from the version testified to by Mark Lane and Erozier Clark. Harm as well as error must be shown to warrant a reversal. See Whelchel v. Thomas Ford Tractor, 190 Ga. App. 156 (1) (378 SE2d 510) (1989).

(b) Joiner has failed to show how he was harmed by the trial court’s rulings which first struck evidence solicited by him that a feud existed between the Joiner and Lane families and then subsequently admitted testimony that prior to the incident, John Lane did not like the Joiners. See Whelchel, supra. These rulings are not inconsistent as the two questions are not identical in scope. No timely objection was posed to the admission of evidence regarding John Lane’s feelings for the Joiners. Thus, this issue is not preserved for appellate review. See Gully v. Glover, 190 Ga. App. 238, 242 (4) (378 SE2d 411) (1989). All evidence is admitted as a matter of course unless a valid objection is timely interposed. Wilson v. Southern R. Co., 208 Ga. App. 598, 604-605 (4) (431 SE2d 383) (1993).

4. Joiner, citing Stouffer Corp. v. Henkel, 170 Ga. App. 383 (317 SE2d 222) (1984), contends the trial court erred by allowing a physician to testify as to John Lane’s injuries, medical treatment and prognosis even though the physician did not personally examine Lane. We disagree.

The physician, a board certified neurosurgeon and professor at the Medical College of Georgia, testified by deposition. He was a trauma unit team member and one of the doctors attending John Lane. As part of the regular course of treatment of a patient, the physician reviews the patient’s history and determines what treatment is required. He personally attended two of John Lane’s surgeries which occurred within days of Lane’s injuries. The first surgical procedure primarily involved a cleaning of Lane’s wound. Although the physician did not see Lane on a daily basis, he did see him at least one time in a follow-up clinic. Based on his examination of Lane’s recorded medical records and history, as well as the medical history the physician obtained by personally examining Lane, and examination of x-rays which had been admitted into evidence pursuant to stipulation, the physician described the location and general nature of injuries suffered by Lane from a gunshot from a 30-06 rifle. These injuries included a large, open wound near Lane’s hip joint and another on the inner side of his thigh and the back part of his buttocks. Based on an examination of medical records and Lane’s x-ray, the physician was of the impression that Lane’s injuries were the result of one continuous gunshot wound. He also testified regarding the extent and general condition of an open fracture of the femur of Lane’s leg, relying both on medical records and x-rays. The physician then testified to certain surgical treatment which he performed on Lane. He described these procedures, in part, referring to x-rays which had been admitted without objection. The physician, based on his examination of Lane’s medical records, his own personal examination of Lane, and his education and experience, testified without objection that it would be a physical impossibility for Lane to have feeling in his injured leg below the knee.

In Stouffer, supra, the appellant did not object to the admission of the doctor’s testimony but merely sought to have the other doctors’ reports admitted in evidence. Thus, Stouffer is factually distinguishable and its holding as to the issue before us is mere dictum. Further, Stouffer addresses circumstances where the opinion testimony is based “merely upon records and case history” furnished by other doctors and not admitted in evidence. An expert can give an opinion based upon facts which he personally observes and, where an expert personally observes data collected by another, his opinion is not objectionable merely because it is based, in part, on the other person’s findings. Randall Mem. Mortuary v. O’Quinn, 202 Ga. App. 541, 542 (1) (414 SE2d 744) (1992). Further, knowledge gained from hearsay by an expert, during the practice of his or her profession, may be used to express an opinion. Doctors Hosp. v. Bonner, 195 Ga. App. 152, 160 (4) (392 SE2d 897) (1990). Even if some of the physician’s expert testimony “was based upon records which were hearsay because they had not been introduced in evidence, this would go to the weight of the evidence and not its admissibility.” Bentley v. B.M.W., Inc., 209 Ga. App. 526, 528 (2) (433 SE2d 719) (1993).

The physician’s testimony was also based on his own observations, education and experience, despite his partial reliance on the records of other professionals which had not been admitted in evidence. We conclude the trial court did not err as enumerated. O’Quinn, supra.

5. The jury returned a verdict in favor of John Lane in the amount of $1,000,000. We decline to find that the jury awarded Lane excessive damages.

In addition to the physician’s testimony and testimony from Lane’s daughters from which the jury could infer the nature and extent of John Lane’s injuries and could determine the degree of pain and suffering which he sustained, the jury also heard testimony from an orthopedic surgeon, Dr. Alan Goodrich. Dr. Goodrich testified that Lane suffers a 30 percent impairment to his body as a whole, will be restricted in many physical activities for the remainder of his life, and will not be able to engage in his previous employment of farming and driving a tanker truck. Lane’s average weekly salary was $317 and his medical expenses resulting from the shooting incident were $37,162.39. In addition, a copy of the American Experience Table of Mortality was introduced in evidence. At time of the incident, Lane was 47 years of age. The Table of Mortality shows that an average 47-year-old would have a life expectancy of 23.08 years. Although evidence exists that Lane was injured in a tractor-trailer accident two months earlier and still suffered back pain, dizzy spells and severe headaches from that accident and that there were discrepancies between his deposition and trial testimony as to the effect he felt from the gunshot wound, it was for a fair and impartial jury to decide the amount of damage to be awarded Lane for pain and suffering, based solely on its enlightened conscience. See Richardson v. Downer, 232 Ga. App. 721, 723 (1) (502 SE2d 744) (1998); Howard v. Gardner, 128 Ga. App. 545 (1) (197 SE2d 386) (1973).

A heavy appellate burden lies on a defendant to establish that a damage award either is inadequate or excessive within the meaning of OCGA § 51-12-12. In particular, appellate courts should be hesitant to second-guess verdicts where the damage award is based in any significant part on pain and suffering. This duty becomes most onerous when the jury is not required to render a special verdict as to damages. A special verdict form was not used in this case and Joiner has enumerated no error as to the form of the verdict.

The question of damages ordinarily is one for the jury. OCGA § 51-12-12 (a). However, effective July 1, 1987, a court can interfere with a jury verdict if the damages awarded “are clearly so inadequate or so excessive as to be inconsistent with the preponderance of the evidence in the case.” OCGA § 51-12-12 (a). Unless rights vested by previous law will be impaired, this Court applies the law as it exists at the time of our judgment, rather than the law existing at the time judgment was rendered by the lower court. Cheeley v. Henderson, 261 Ga. 498 (1) (405 SE2d 865) (1991). Thus, we will review this enumeration applying the standard currently promulgated in OCGA § 51-12-12 (a).

A trial court’s approval of the verdict creates a presumption of correctness that will not be disturbed absent compelling evidence. Id. The record reveals no evidence sufficient to overcome this presumption, and Joiner has failed to affirmatively show by the record that the damage award in this case, announced by general verdict, was so flagrant as to clearly be inconsistent with the preponderance of the evidence.

Decided October 23, 1998

Reconsideration denied November 5, 1998

Ross, Wallace & Hammond, Harold W. Wallace III, John C. Hammond, for appellant.

Gary Joiner, pro se.

Victor Hawk, for appellee.

Judgment affirmed.

Smith, J, and Senior Appellate Judge Harold R. Banke concur.


source: Caselaw Access Project

author: Pope, Presiding Judge. Beasley, Judge,

license: Public Domain

text:
    A98A0834.
    TENNEY v. TENNEY.
    (508 SE2d 487)
   Pope, Presiding Judge.

Brian Tenney and Kerry Tenney divorced in 1996. The court which granted the divorce approved of the Tenneys’ separation agreement and made it part of the final judgment and decree. The agreement provides that the Tenneys have joint custody of their daughter and son, but that the children’s primary residence is with Brian Tenney and that he has the final say in decisions relating to the children. The agreement further provides that Brian Tenney has the right to move himself and the children to a new residence, so long as he gives Kerry Tenney 90 days notice of the move.

In 1997, Brian Tenney notified Kerry Tenney that he intended to move to Florida, with the children, in order to take a new job. Kerry Tenney filed a complaint for change of custody based on the intended move. The trial court held a change of custody hearing, at which Brian and Kerry Tenney were the only witnesses. At the time of the hearing, Brian Tenney had not yet moved and no longer had a job offer in Florida. In addition to the Tenneys’ testimony, the court considered documentary evidence, including the notes of a school counselor indicating that the Tenneys’ daughter was worried about the possible move to Florida.

Three months after the hearing, the court issued an order making Kerry Tenney the childrens’ primary physical custodian if Brian Tenney moved to Florida. In the alternative, the court ruled that Brian Tenney would remain as the primary custodial parent if he did not move. But if he later wants to move with the children, the court ruled that he must provide Kerry Tenney a list of five psychologists or psychiatrists, from which she may choose one to evaluate the effects of a move on the children, and the court would then consider the psychological evaluation before ruling on whether to change custody. We granted Brian Tenney’s application for discretionary review of the court’s order.

1. Brian Tenney asserts that the court erred in changing the original custody decree by making Kerry Tenney the primary physical custodian of the children if Brian Tenney has already moved to Florida. We agree that this portion of the court’s order is erroneous.

“In a contest between the parents, the award of custody by a divorce court vests the custodial parent with a prima facie right. [Cit.] Ordinarily, the trial court should favor the parent having such a right. [Cit.] What the court must affirmatively find is either that the original custodian is no longer able or suited to retain custody or that conditions surrounding the child have so changed that modification of the original judgment would have the effect of promoting his welfare. [Cit.] It is a change for the worse in the conditions of the child’s present home environment rather than any purported change for the better in the environment of the non-custodial parent that the law contemplates under this theory. [Cits.] Although trial courts have wide discretion in change of custody proceedings, there are limits to that discretion. [Cit.]” (Punctuation omitted.) Ormandy v. Odom, 217 Ga. App. 780, 781 (1) (459 SE2d 439) (1995).

In the instant case, the court went beyond the limits of its discretion. Based on the original custody decree, the trial court was required to favor Brian Tenney’s prima facie right to be the primary custodial parent. Contrary to the trial court’s judgment, Kerry Tenney has proved no grounds for disregarding that right. The record is devoid of any evidence that Brian Tenney is no longer able or suited to retain custody of the children; there is no evidence of a change for the worse in the conditions of the environment in his home. On the contrary, the trial court expressly held that if he has not moved, then Brian Tenney should remain as the children’s primary physical custodian.

There also is no evidence that conditions surrounding the children have so changed that modifying the original decree to make Kerry Tenney the primary physical custodian would promote the children’s welfare. The only changes in conditions surrounding the children upon which the court based its decision to modify the original custody order are that Brian Tenney might have moved to Florida and that the children may be worried about such a move. Moving, however, is not necessarily in and of itself a sufficient change in condition to authorize a change in custody. Ormandy v. Odom, 217 Ga. App. at 781 (1). “While adverse emotional problems caused a child by a sudden, unannounced move is a factor for consideration, relocation standing alone cannot support a finding of change of condition and a resulting change of custody.” (Punctuation omitted.) In the Interest of R. R., 222 Ga. App. 301, 305 (3) (474 SE2d 12) (1996). Because the only grounds for the portion of the trial court’s order making Kerry Tenney the primary physical custodian are that Brian Tenney may have already moved to Florida and that the children may be worried about the move, that portion of the order is contrary to the law and must be reversed.

2. Brian Tenney also challenges the trial court’s order that if he has not moved, but later wants to move, he must first provide a list of psychologists or psychiatrists who can evaluate the effects of a move on the children and then report the evaluation and any recommendations to the court. The ruling presents a procedural problem. The complaint for change of custody has been ruled on and judgment given. The ruling has been appealed as a final order. The authority to order a psychological custody evaluation exists “[i]n all cases in which the custody of any minor child or children is at issue between the parents. . . .” OCGA § 19-9-3 (a) (1). But here, the trial court has finally resolved the issue of custody by granting primary custody to the mother if the father has moved to Florida since the time of the hearing (which ruling has been reversed in Division 1); if he has not moved, then the father is to retain primary custody.

Thus, there is no reason for an examining psychologist or psychiatrist to report to the court unless and until an issue of change of custody is pending. The court may not retain continuing jurisdiction of the issue, to be automatically reactivated in this current proceeding “if [the father] desires to relocate to Florida or elsewhere.” See Heard, v. Vegas, 233 Ga. 911, 912 (1) (213 SE2d 873) (1975) (“a court cannot attempt to retain jurisdiction [in a child custody case] after its final order”). Compare Carr v. Carr, 207 Ga. App. 611, 612 (429 SE2d 95) (1993) (self-executing provision contingent on change of residence is proper). What is more, the court structured its further adjudicatory involvement so that it would be reactivated simply by receipt of an evaluation which the evaluator could decide to send or not to send. There is no legal authority for a continuing jurisdiction which would lie dormant until a non-party instigated further court action. Accordingly, the part of the court’s judgment that renews the court’s jurisdiction on receipt of an evaluation cannot stand.

Judgment reversed.

Ruffin, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

1.1 concur fully in Division 1. Removal of children to residence in another State does not itself constitute or amount to a change of condition warranting alteration of custody. It is a long-standing principle. Mercer v. Foster, 210 Ga. 546, 548 (3) (81 SE2d 458) (1954) and cases cited therein. Here the parties themselves contemplated a move.

Decided November 5, 1998.

Amelia G. Pray, for appellant.

Jacket, Rainey, Marsh & Busch, Michael L. Marsh, Jessica L. Handley, for appellee.

2.1 also concur in Division 2. Not only did the trial court modify the separation agreement by requiring a psychological or psychiatric evaluation of the children before any relocation of the primary custodial parent “to Florida or elsewhere” with the children, but it went further. It ruled that the evaluating professional “may” notify the court of the evaluation and recommendations (the court assumed the latter would accompany the evaluation) and the court would hold a hearing “before making a ruling.” But nothing will be pending before the court which calls for a ruling, as the majority shows.

3. This case illustrates once again the presumably harmful effect on children in limbo while the court processes take their usual course. The little girl was age six and her brother was not yet five when the custody arrangement was finalized by court order in the divorce proceeding. The court heard the matter of change upon all issues in mid-May 1997 but did not enter an order changing custody (if the father moved in the interim) until August.

The notice of appeal, filed in mid-October after this Court granted the father’s application for discretionary appeal, acted as supersedeas, so no change in custody has been effected. OCGA § 5-6-46 (a). The record was sent to this Court on December 22, despite the time requirements of OCGA §§ 5-6-42; 5-6-43.

It is now November 1998. The girl is eight years old and the boy is almost seven years old. The judicial process for resolving custody disputes should be expedited all along the way so that the dynamic character of the children’s growth and development is not prejudiced or harmed by delayed change of custody when that is needed or by the insecurity of inconclusiveness if custody is to remain the same.


author: McMurray, Presiding Judge.

text:
    A98A0996.
    BIRDSONG et al. v. ENFORCER PRODUCTS, INC. et al.
    (508 SE2d 769)
   McMurray, Presiding Judge.

In the Superior Court of Bartow County, Georgia, plaintiffs Robert M. Birdsong, Buck Sales Company, Inc., Billy Wayne Phillips, and Robert T. Roberts (collectively “Plaintiffs”) brought this action for fraud, misrepresentation, conversion, breach of fiduciary duty, misappropriation of trade secrets, and intentional infliction of emotional distress against defendants Enforcer Products, Inc., Wayne B. Biasetti, individually and as Chief Executive Officer of Enforcer Products, Inc., Edward D. Brush, individually and as Director of Finances and Office Management, and James D. Biggs, individually and as Director of Marketing and Sales. Defendants denied the material allegations and moved for summary judgment on the basis of res judicata, “based upon the legal disposition of those claims in the case of Enforcer Products, Inc. v. Birdsong, et al., U. S. District Court for the Northern District of Georgia, Atlanta Division, Civil Action File No. 93-CV-1701-CC (the ‘Federal Court Litigation’).”

The undisputed facts show that, after a four-day bench trial, the District Court entered a final judgment in the federal court litigation, holding “Defendants [plaintiffs in the case sub judice] liable for patent infringement, false designation of origin, deceptive trade practices, unfair competition and false marketing^ with] total damages [amounting to] three hundred eighty-nine thousand four hundred . . . fifty dollars ($389,450) for which the Defendants are jointly and severally liable.” The superior court concluded that the additional claims raised in this complaint should have been brought as compulsory counterclaims in the federal court litigation, under Rule 13 of the Federal Rules of Civil Procedure (“FRCP”), and granted defendants’ motion for summary judgment. This appeal followed. Held:

1. “A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” (Emphasis supplied.) OCGA § 9-12-40. This Code section “is a codification of Georgia’s common law rule of res judicata. The language used in the statute was drawn from Watkins v. Lawton, 69 Ga. 671 [(hn. 1)] (1881), where [the Supreme Court of Georgia] held: ... A judgment is conclusive as to all matters put in issue, or which, under the rules of law, might have been put in issue, in a former suit between the same parties concerning the same subject matter in a court of competent jurisdiction. . . . Thus, one must assert all claims for relief concerning the same subject matter in one lawsuit and any claims for relief concerning that same subject matter which are not raised will be res judicata pursuant to OCGA § 9-12-40.” (Emphasis in original.) Lawson v. Watkins, 261 Ga. 147, 149 (2) (401 SE2d 719).

Decided November 5, 1998

Dew & Smith, Tyson D. Smith, Jr., Ralph J. Hunstein, for appellants.

Minkin & Snyder, Michael J. King, Ernest L. Greer, G. Brian Raley, S. Lester Tate III, for appellees.

2. “[FRCP] 13(a) defines a compulsory counterclaim as any claim that ‘arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim.’ [The United States Court of Appeals for the Eleventh Circuit] adopted the ‘logical relationship’ test for determining whether a counterclaim [is] compulsory. [Cit.] Under this test, there is a logical relationship when ‘the same operative facts serve as the basis of both claims or the aggregate core of facts upon which the claim rests activates additional legal rights, otherwise dormant, in the defendant.’ [Cit.]” Republic Health Corp. v. Lifemark Hospitals of Fla., 755 F2d 1453, 1455 [4] (11th Cir. 1985).

In the case sub judice, it is undisputed that plaintiffs’ claims for fraud, misrepresentation, conversion, breach of fiduciary duty, misappropriation of trade secrets, and intentional infliction of emotional distress alleged in the instant action are based upon the same operative facts as defendants’ initial claim for patent infringement, false designation, deceptive trade practices, and unfair competition as well as plaintiffs’ unsuccessful counterclaims for patent infringement, false designation of origin, deceptive trade practices, unfair competition, and false marketing. That is sufficient logical connection to show the claims here alleged were compulsory counterclaims under FRCP 13(a) which should have been raised in the federal litigation. Since these claims could and should have put in issue in that federal litigation involving the same subject matter, the superior court correctly ruled that, under OCGA § 9-12-40, the prior unreversed federal judgment between the identical parties was conclusive, and further correctly granted defendants’ motion for summary judgment in this subsequent state court action, on the basis of res judicata. See Fowler v. Vineyard, 261 Ga. 454, 460 (6) (405 SE2d 678). Compare Tootle v. Player, 225 Ga. 431, 432 (2) (169 SE2d 340) (new cause of action which was not and could not have been put in issue in prior suit).

Judgment affirmed.

Blackburn and Eldridge, JJ., concur.


text:
    A98A1093.
    SMITH v. THE STATE.
    (508 SE2d 490)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with a single count of robbery, in that he did “with intent to commit theft, take from the person and immediate presence of [the victim, Jacqueline Wei Su] by sudden snatching, a wallet of value. . . The evidence adduced at his jury trial revealed the following:

At approximately noon on April 6, 1995, Ms. Su drove to downtown Atlanta with a co-worker, Carolyn Burrows, on a business trip to the apparel mart. As they turned into a parking lot, defendant walked up to her car. She believed he was the parking attendant. “And he [defendant] came to [the victim], and he said the parking’s two dollars, and at that time, [the victim] already [had] the window down. . . .” Even though a sign read $5 for parking, defendant “said, ‘Today it’s $2.’ ” Defendant “had a tight braid hairdo, and . . . T-shirt, loose pants. . . . And he had a drink in one hand. But [the victim did not] know which hand. ... He grabbed [her] $2 and snatched [her] purse at the same time, so quick [the victim could not] even think. . . . [Inside her purse were her] drivers license and one major credit card and . . . maybe 30 something dollars. . . .” In addition to her in-court identification of defendant as the robber, the victim confirmed she had identified defendant “a few days after April 6 [when she went] down to . . . the preliminary hearing in city court[.]” There, “nobody introduced [her to defendant,] but when [she] saw him, [she] knew that’s the same person right away. [She] was scared when [she saw] him.”

Carolyn Burrows recalled noticing defendant as she and the victim searched for a suitable parking space. “He looked at [Burrows]. [She] looked at him, made eye contact. He was carrying a plastic Sprite bottle walking down the street. . . . [Defendant] tapped on the window, and [the victim] made the mistake of rolling down the window. . . . [Burrows] recognize[d] the defendant as being the same person [she] had seen [before,] still carrying that Sprite bottle, same guy [she] saw four minutes [before] when [they] made a U-turn. . . . He said, ‘It’s going to be $2 for parking. . . .’” When the victim declined defendant’s request to give him a twenty dollar bill, and he would give her the change, “[h]e reached in the car and snatched the change purse. [The victim’s] purse was open. . . . He snatched it, . . . reaching] in there real fast, scared [Burrows] half to death, and [then] he ran like crazy . . . straight to a one-way street.”

Officer R. F. McWalters of the City of Atlanta Police Department interviewed the victim and Burrows after the robbery. The description they gave of the robber included the fact that he was carrying “[a] green 20 ounce plastic Sprite bottle.” A quick inspection of the Techwood area revealed no one who fit the description. Four days later, on April 10, Officer McWalters was on the top of the Days Inn hotel with binoculars when he “observed a [male of defendant’s race] walking east on Simpson Street towards Techwood. And he was carrying a 20 ounce green plastic Sprite bottle. And his height and weight fit. . . close to what Ms. Burrows gave . . . from the previous incident.” It was defendant. No one else on the street seemed to resemble the description. Officer McWalters interviewed defendant and confirmed “the style of [defendant’s] hair, he had like shortcut dreadlocks, and his build and his height and weight [five-eight, 150 pounds] fit the description. And his clothing was pretty close to what Ms. Burrows had initially given [police] from the incident report.” Officer McWalters then telephoned Burrows to see if she might be able to come down and identify the suspect, who was standing outside in front of the Days Inn. She arrived in about ten minutes and was informed only that, “ ‘there’s a gentleman here that fits the description that you’ve given [police]. . . . [T]ake a look and see if you can identify him ... in any way. If you don’t, . . . just go back to work.’ . . . [Officer McWalters] made no mention of [defendant] either being him [the robber] or not being him. [He] wanted her [Burrows] to make that decision. ... Almost immediately she said that’s the guy.” Once he heard that positive identification, Officer McWalters arrested defendant for robbery by sudden snatching.

The State introduced evidence of defendant’s guilty plea to misdemeanor theft by taking, based on a special presentment charging defendant with robbery by sudden snatching. Eugenio Cambrón, a native of Mexico, testified that, on the evening of October 6, 1994, he drove “downtown looking for the Grady Hospital.” Cambrón parked in the parking lot for the Comfort Inn, intending to get a taxi to the hospital. Defendant approached “and he hit the window and [Cambrón] said, What you need?’ [Defendant] said, T need you to pay the parking. . . . When [Cambrón] park[ed] the truck in there, he [defendant came] to the window, and he asked [Cambrón] for $2 for a parking place.” Whereupon Cambrón identified defendant as the man who rapped on his window. Cambrón had a twenty dollar bill in his hand, and when he tried to make change, “defendant [took] the 20 and [ran].”

The jury found defendant guilty as charged. His motion for new trial was denied and this appeal followed. Held:

1. Defendant’s first enumeration of error contends the trial court erred in admitting the identification testimony. In this regard, defendant moved in limine to exclude the identification testimony of Carolyn Burrows, arguing her initial identification of defendant was impermissibly tainted by the one-man showup four days after the robbery.

“There is ‘no per se exclusionary rule applied to pre-indictment confrontations. (Cit.)’ Yancey v. State, 232 Ga. 167, 169 (205 SE2d 282) (1974). ‘Pre-indictment confrontations should be scrutinized to determine if they are unnecessarily suggestive and conducive to irreparable mistaken identification. The totality of the circumstances must be viewed to determine if there is a “likelihood of misidentification which offends due process and ‘the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, (and) the level of certainty demonstrated by the witness at the confrontation.’ (Cit.)” (Cit.)’ Towns v. State, 136 Ga. App. 467, 468 (1) (221 SE2d 631) (1975), applying the factors enumerated in Neil v. Biggers, 409 U. S. 188 (93 [SC] 375, 34 LE2d 401) (1972).” Johnson v. State, 209 Ga. App. 632, 633 (2) (434 SE2d 169).

Defendant first argues that Officer McWalters tainted Burrows’ independent recollection, pointing to Burrows’ statement under cross-examination that Officer McWalters said to her, “ ‘I have somebody in custody that fits exactly your description. Can you please come down to the Days Inn?’ ” But this evidence was adduced only at trial after Burrows identified defendant, and not during the motion to suppress. Rather, at the hearing on this motion, Officer McWalters testified that he espied defendant, who fit the physical description of a “male, approximately five-eight to six foot, about 150 pounds, with a short dreadlock hairstyle,. . . [carrying] a large green Sprite bottle . . . same pants, same sneakers.” Officer McWalters “explained to [defendant] why he was detaining him. That there was an incident that happened, and he fit the description, . . . right down to the Sprite bottle. [Officer McWalters] told [defendant his] intention was to get ahold of either one or both witnesses and have them come down and see if they can identify him. . . . When Ms. Burrows arrived, she parked out in front of the Days Inn. [Defendant] was over by the . . . main entrance of the hotel. And when she got out of the car, she looked past me and saw [defendant] and said that was the guy. [Defendant] was . . . handcuffed, at the time[, but you wouldn’t know it right away . . . [because] there [were] plainclothes policemen [including a member of defendant’s race] that were kind of on either side of him. So he wasn’t... to the point where you could see it right away. . . . [Ms. Burrows displayed no hesitancy] whatsoever. She was positive.” Defendant was detained a total of “20, 25 minutes . . .” before being formally arrested.

Carolyn Burrows, who is Spanish-American, testified that she had “been discriminated against [her]self for being Spanish, and [she could] clearly describe [the subject].” When she responded to Officer McWalters’ call on April 10, “Officer McWalters said, ‘Look over my shoulder. Tell me if that’s the guy.’ [She] looked at him [and] said, Yes.’ [Officer McWalters] said, ‘Okay.’ ” Burrows “looked at [defendant]. [She] stared. [She] had flashbacks of what happened, and she saw, and [she] looked, and [she] saw. [She] said, Yes, that’s him.’ ” Ms. Burrows was concerned that defendant would see her own face. Officer McWalters “said, ‘Take your time. Relax. He can’t get you.’ ... He said, ‘Just relax. You know, tell me if it’s him. Tell me if it’s not him.’ ”

“ ‘(P)rompt on-the-scene confrontations and identifications, though inherently suggestive because of the presentation of a single suspect, (nevertheless) are permissible in aiding a speedy police investigation and . . . where possible doubts as to identification need to be resolved promptly, such on-the-spot identifications promote fairness by enhancing the accuracy and reliability of identification, thereby permitting expeditious release of innocent subjects. (Cit.)’ Bennefield v. Brown, 228 Ga. 705, 706 (3) (187 SE2d 865) (1972).” Johnson v. State, 209 Ga. App. 632, 633 (2), supra. In the case sub judice, defendant argues a four-day delay renders this one-on-one showup suspect, relying on Banks v. State, 216 Ga. App. 326 (454 SE2d 784). This reliance is misplaced. Careful scrutiny reveals that, while a four-hour delay between the offense and the two-man showup was an undisputed circumstance, that time delay was not the basis for holding “that the identification procedure used in [that] case was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Banks v. State, 216 Ga. App. 326, 328 (3), 330, supra.

Moreover, that authority is distinguishable in material respects: “Banks was identified while seated in the rear of a police car with [an accomplice,] Ferrell, a person the victim had known for twenty years, and a police officer shone his flashlight in their faces. . . . Additionally, [that] victim’s testimony . . . was highly suspect [because the] victim also testified that he was kind of deaf, that he did not pay too much attention to Banks’ clothing, and that he was keeping his eye on [the accomplice] Ferrell. . . . Additionally, [that victim] denied that he had given a description of Ferrell’s accomplice to police before the showup. . . . Further, the description the victim gave to the police after the offense, but before the showup, differed in important respects from Banks’ appearance at the showup[, namely] Banks had a full beard. Also, the victim said the man was dressed in black pants and with no shirt, but Banks was wearing a black tee shirt and pinstriped shorts when he was apprehended.” 216 Ga. App. 326, 327 (2), 328, supra.

No such discrepancies appear in the case sub judice. Defendant was noticed in the vicinity of the parking lot where this robbery took place. Burrows had an opportunity to view defendant at the time of the crime and recognized him as the person she had seen only moments before, indicating a high degree of attention. Her description to police of defendant was highly accurate in terms of height, weight, build, attire, and unusual detail such as the large green soda bottle. Burrows could not see that defendant was handcuffed, although she surmised he was in fact detained by the police. Burrows maintained a high level of certainty at the confrontation and during the motion hearing, as well as at trial. The locus of the showup was near the crime scene and two blocks from where defendant was first seen by Officer McWalters. In our view, the circumstance that this showup occurred four days after the robbery by sudden snatching does not vitiate the societal interest in the expeditious release of innocent suspects, nor, standing alone, does it render this confrontation impermissibly suggestive. Given the high degree of accuracy and certainty presented here, “[t]he trial court’s determination that there was, under the totality of the circumstances, no likelihood of irreparable misidentification is supported by the evidence, is not clearly erroneous, and is therefore affirmed. See Hood v. State, 199 Ga. App. 774 (406 SE2d 120) (1991).” Johnson v. State, 209 Ga. App. 632, 633 (2), 634, supra.

2. “[I]n the absence of a request, a trial court has no obligation to give a limiting instruction regarding similar transaction evidence. State v. Belt, 269 Ga. 763 (501 SE2d 1). . . . Regardless of when the defendant wishes the jury instructed on the limited [purposes for which] similar transaction evidence [was admitted], it is incumbent upon him to make a timely request to the trial court for such a charge.” State v. Hinson, 269 Ga. 862 (506 SE2d 870). Defendant’s request Number 16, “that this Court give the patterned charge on the purpose and use of other offenses or Similar Transactions,” is inadequate to give. The second enumeration is without merit.

3. In response to a question whether defendant could or could not “have said, ‘Take these cuffs off I’m ready to go,’ . . . [Officer McWalters replied:] Not from previous experience with [defendant], no.” Defendant’s motion for a mistrial was denied but the trial court cautioned the officer and then instructed “that last statement made by the officer should be disregarded by the jury. If you don’t remember what it is, don’t worry about it.” Defendant’s motion was renewed, and, in his third enumeration, defendant contends the trial court erred in allowing the State to place his character in evidence.

“Whether to grant a mistrial based on improper character evidence is within the discretion of the trial judge. In reviewing the trial court’s decision, an appellate court may consider the nature of the statement, the other evidence in the case, and the court’s and counsel’s action in dealing with the impropriety. We have previously held that curative instructions [are] an adequate remedy when witnesses improperly placed the defendant’s character into evidence by testifying about his prior convictions or criminal acts. In this case, the officer’s reference to [his previous experience with defendant] appears to be inadvertent and the trial judge [admonished the officer and] promptly instructed the jury to disregard [Officer McWalters’ last statement]. Under these circumstances, we conclude that the trial court did not abuse its discretion in deciding to give [curative instructions] to the jury rather than grant a mistrial.” (Footnotes omitted.) Sims v. State, 268 Ga. 381, 382 (2) (489 SE2d 809).

4. Defendant’s fifth enumeration contends the trial court erred in admitting the similar transaction evidence leading to defendant’s guilty plea to theft by taking, based on a prior snatching. We disagree.

This evidence was substantially relevant to show identity and modus operandi. Defendant’s sole prior act of robbery by sudden snatching was “ ‘so nearly identical in method as to earmark [both the prior act and this offense] as the handiwork of the accused.’ [Cit.]” Felker v. State, 252 Ga. 351, 360 (1) (a) (314 SE2d 621). It is “in the nature of a signature and thus some evidence of the identity of the perpetrator. . . .” Shaw v. State, 211 Ga. App. 647 (1), 648 (440 SE2d 245). “The determination that such evidence is more probative than prejudicial is implicit in the trial court’s determination that the similar [transaction is] substantially relevant for an appropriate purpose.” Evans v. State, 209 Ga. App. 606, 607 (2) (434 SE2d 148) (whole court).

5. During cross-examination of Officer McWalters, defendant adduced that Officer McWalters knew defendant “from the area . . . and, in fact, [defendant had] filed a complaint against [Officer McWalters].” Over defendant’s character objection, the State was permitted to show that, approximately two years earlier, Officer McWalters “worked the plain clothes down around the Omni, and he [defendant] was scalping tickets, things of that nature, trying to flimflam people coming over to the Omni during the sporting events. . . . He wasn’t arrested[, just told] he needs to move on. . . . And some words were exchanged. [Defendant] went into the precinct and . . . spoke to one of the supervisors about it, and which the supervisor talked to [Officer McWalters, who] explained what the situation was.”

Assuming, without deciding, that the State was not entitled to rebut any inference that defendant was arbitrarily rousted or otherwise the object of abuse at the hands of the police, “ ‘we hold that in the context of the other [extrinsic acts] evidence in the case (that was properly admitted), it is highly probable that the (admission of this evidence) [regarding defendant’s scalping tickets] did not contribute to the verdict. (Cits.) Accordingly, this enumeration established] no ground for reversal.’ Parcell[ v. State, 198 Ga. App. 439, 440 (1) (401 SE2d 628)].” Bohannon v. State, 208 Ga. App. 576, 578 (2), 580 (2) (d) (431 SE2d 149).

Decided November 5, 1998

Megan C. DeVorsey, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Henry M. Newkirk, Peggy R. Katz, Assistant District Attorneys, for appellee.

Judgment affirmed.

Blackburn and Eldridge, JJ., concur.


text:
    A98A1250.
    LOVELL v. THE STATE.
    (508 SE2d 771)
   McMurray, Presiding Judge.

Defendant was charged in a multiple count indictment with theft by conversion (OCGA § 16-8-4) (Counts 1, 2 and 3) by lawfully obtaining funds under an agreement and known legal obligation to apply them to the remodeling of a house for Charles A. Clayton and Mary Ann Clayton, and then converting portions of those funds in amounts exceeding $500 to his own use in violation of the agreement and legal obligation. Defendant was further charged in Count 4 with conversion of payments for real property improvements in violation of OCGA § 16-8-15, for using the proceeds of payments by Charles A. Clayton and Mary Ann Clayton to him for some other purpose than to pay for labor and materials furnished for a specific improvement and also for failure to pay a subcontractor for doors. The defendant was also charged in Count 6 with theft by conversion regarding construction and installation of cabinets in Gloria Powell’s house. The jury acquitted defendant of Count 4, conversion of payments for real property improvements and Count 5, theft by conversion regarding installation of hardwood floors in the home of Ralph E. Pounds. But defendant was found guilty of the remaining four counts of theft by conversion. Defendant’s motion for new trial was denied and this appeal followed. Held-.

1. Defendant first enumerates the denial of his motion for directed verdict of acquittal, arguing the State failed to prove the existence of an agreement to make a specific application of funds, and further failed to prove any conversion of funds paid. This challenges the sufficiency of the evidence under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Humphrey v. State, 252 Ga. 525, 526 (1), 527 (314 SE2d 436). The evidence at defendant’s jury trial, viewed in the light most favorable to the verdicts, revealed the following:

(a) Defendant entered into a written agreement to act as the general contractor for the extensive renovation and remodeling of the home of Charles A. Clayton and Mary Ann Clayton. The initial contract price was $54,000, payable in a series of draws upon the completion of specified milestones. That written agreement obligated defendant to “install all tile in bathroom with tile to be supplied by owner.” But Mary Ann Clayton testified that her “architect had designed a shower that wasn’t a standard size or shape, and [she and her husband] were just going to tile it [when Mary Ann Clayton] thought about all that mildew. And Surrel is like Corian, it’s a solid surface and it’s seamless and there’s no seams and no grout and [so she] thought it would be wonderful not to have mildew in the shower. So [they] splurged and gave [defendant] the extra money to get the Surrel ... for the actual wall of the shower.” Specifically, she gave defendant a check for $2,073, which was cashed, but Mary Ann Clayton “didn’t receive any shower at all.” Similarly, Mary Ann Clayton identified another check for $1,720 as “a check [she] wrote to [defendant] on December 9th, ’94 for . . . kitchen counter tops, and it was out of the same material. [Defendant] told [them] he was certified to install this material. For solid surfacing like Corian and Surrel. . ., not just anybody can put it in. You have to be a certified installer. So [the Claytons] went with that brand because [defendant] said that he was certified in it.” Mary Ann Clayton explained that this $1,720 “was extra. It was not money included in the $54,000.” This check was cashed but defendant installed “no kitchen counters whatsoever of any kind.” On November 10, 1994, Mr. Clayton gave defendant a check for $3,450 which included “a regular payment plus $750 for a porch roof and flooring which [the Claytons] never got.” The extra money was earmarked for “tongue and groove on the [porch] ceiling and the floor.”

There are additional examples where defendant took money from the Claytons for specific purposes under agreements outside the original written contract, and failed to apply the funds to purchase the specified materials. OCGA § 16-8-4 “applies whether the application or disposition is to be made from the funds or property of another or from the accused’s own funds or property in equivalent amount when the agreement contemplates that the accused may deal with the funds or property of another as his own.” OCGA § 16-8-4 (a). “ ‘ “(P)roof of conversion vel non lies in the explanation or failure to explain proved discrepancies between amounts received and disbursements going toward the completion of the contract.” (Cit.)’ Tchorz v. State, 197 Ga. App. 185, 186 (397 SE2d 619) (1990).” Cottrell v. State, 210 Ga. App. 55, 56 (435 SE2d 272). The evidence in the case sub judice was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307, supra, to authorize the jury’s verdicts that defendant committed theft by conversion as proscribed by OCGA § 16-8-4, as alleged in Counts 1, 2, and 3 of the indictment.

(b) Count 6 alleged defendant, having “lawfully obtained funds, to-wit: $3,000.00 . . . under an agreement and known legal obligation, to-wit: construction and installation of cabinets in Gloria Powell’s house . . . did knowingly convert said funds, in an amount exceeding $500.00, to be his own in violation of said agreement and legal obligation. . . .” Significantly, this does not allege that defendant accepted the money “under an agreement or other known obligation to make a specified application of such funds . . .” (emphasis supplied) as required by OCGA § 16-8-4 (a), and in our view, the evidence does not establish this element of the offense as laid by the State:

Gloria Powell testified that, while her house in Pickens County, Georgia “was under construction, [defendant] came by soliciting work. . . .” In a written agreement, she engaged defendant to do cabinetry work, specifically: “kitchen as per drawings ... 4 Baths . . . formica Green (Sample to be agreed/on) . . . oak raised panel doors. . . .” Defendant “acknowledged receipt of [Gloria Powell’s] check . . . number 1833 for $1500. He acknowledged it here [on the contract], and that was on February the 21st of 1994, that was to buy the material.” After five or six weeks, defendant “delivered some shells. [Powell] wouldn’t call them cabinets. . . . [Powell was] a little concerned. . . . [Defendant] said everything would come together and it was going to look fantastic. . . . [Powell] said, is this all? Oh, no, [defendant] said. There’s a truck coming. [Defendant said he] couldn’t [fit] it all in [his] van. . . . But no truck came and no doors ever came and [defendant] never returned phone calls .... [Powell] would call [defendant] at least twice a week. . . . First it was his boy was sick. Then his wife’s car broke down. . . . [Finally,] a boy approximately 14, 15 years of age . . . came by and was gluing strips of oak paper on this shell. He worked for about a half hour and had to go. . . . He never came back. . . . We were very, very disappointed, disgusted, but wanted very much to work this out. We wanted [defendant] to do the job. Get it done. He never would.” Some cabinet shells were delivered, although these were described as “shoddy construction.” The Powells were subsequently “notified that [defendant] was going through bankruptcy . . .” when they were listed as creditors.

Defendant’s written agreement with Gloria Powell does not obligate defendant to apply any portion of the contract price to specific materials of identifiable quality, such as Corian counters or oaken shelving, and Gloria Powell’s testimony likewise is inadequate on this point. Although she testified her first check for $1,500 was intended to be applied to materials, the contract recites “1500 to begin . . . 1500 after casework is delivered [and the final] 2000 after doors hung.” There simply is no evidence that defendant failed to apply funds in a manner specified in any agreement. Rather, the evidence shows that defendant did deliver materials to the Powells’ residence. Further, there is no evidence as to the value of the materials delivered. Consequently, the evidence is not sufficient under the standard of Jackson v. Virginia, 443 U. S. 307, supra, to authorize the jury’s verdict that defendant committed theft by conversion as alleged in Count 6 of the indictment, as it merely shows that defendant failed to perform his contract to deliver cabinets. Myrick v. State, 210 Ga. App. 393 (436 SE2d 100). See also Hill v. State, 198 Ga. App. 1 (1), 2 (401 SE2d 48) (whole court).

Decided November 5, 1998.

Jeffrey L. Floyd, for appellant.

Roger Queen, District Attorney, for appellee.

2. Next, defendant contends the trial court erred in sentencing defendant on multiple counts of the indictment (Counts 1, 2, and 3), arguing these constituted but a single series of continuous conversions. We disagree.

“The general rule is that when individual acts are prohibited, each act is punished separately, no matter how close they may be in time to each other. [Cits.]” Pryor v. State, 238 Ga. 698, 699 (1) (234 SE2d 918). In the case sub judice, defendant committed three prohibited acts of theft by conversion, based on three separate failures to apply three separate payments to the purpose specified for each such payment. “ ‘Under the evidence, [three] sequential but entirely separate crimes were committed against the same victim[s] and a conviction and separate sentence for [each crime] was authorized. (Cit.)’ Stroud v. State, 193 Ga. App. 82, 83-84 (4) (387 SE2d 37) (1989).” King v. State, 209 Ga. App. 529, 532 (4) (433 SE2d 722). Compare Montes v. State, 262 Ga. 473, 474 (1) (421 SE2d 710).

3. For the reasons discussed in Division 1 (a) above, defendant’s three convictions for theft by conversion as alleged in Counts 1, 2, and 3 of the indictment are affirmed. But for the reasons discussed in Division 1 (b) above, defendant’s conviction for theft by conversion as alleged in Count 6 of the indictment is reversed on the general grounds.

Judgment affirmed in part and reversed in part.

Blackburn and Eldridge, JJ., concur.


author: McMUKRAY, Presiding Judge.

text:
    A98A1097.
    TECHWERKS, INC. v. RETAIL TECHNOLOGIES CORPORATION.
    (509 SE2d 84)
   McMUKRAY, Presiding Judge.

In 1989, Techwerks, Inc. (“Techwerks”) entered into an asset purchase agreement with Retail Technologies Corporation (“RTC”), providing RTC with a computer software product for retail to certain businesses. This agreement provides Techwerks with a security interest in the software and, in § 1.04 (b), requires RTC to pay Techwerks “a specified percentage of the gross revenues derived from the licensing, sale or rental of the Software for a period of ten (10) years. . . .” When RTC allegedly stopped paying under this subsection, Techwerks sued RTC for breach of contract and petitioned for a writ of possession to seize the software. RTC filed defensive pleadings and a counterclaim for money had and received, alleging it overpaid Techwerks $46,591.86 in royalties under § 1.04 (b) of the asset purchase agreement. RTC also sought a declaration of its royalty payment obligation under § 1.04 (b) of the asset purchase agreement.

Upon opposing motions for summary judgment, Techwerks claimed that § 1.04 (b) requires RTC to pay royalties on all revenue — including money RTC generates for providing computer hardware and services to its customers. RTC claimed that, although it mistakenly overpaid Techwerks during certain periods, its payment obligation under § 1.04 (b) “extends to revenue only from licensing, sale or rental of the . . . software program.” The trial court agreed with RTC and partially granted summary judgment in favor of RTC. The trial court denied Techwerks’ motion for summary judgment and entered, in pertinent part, the following order: “The Court finds that the agreement between the parties is what Section 1.04 (b) states, ‘gross revenue derived from licensing, sales, or rental of the software’ and nothing more. Had the parties intended to include all ‘gross revenues’ associated with the . . . software program they would have so indicated in the contract. They did not. Instead they modified ‘gross revenue’ to limit it to revenue derived from licensing, sales, or rental of software.”

Techwerks filed this appeal after entry of the trial court’s summary judgment order. Held:

Techwerks contends the trial court erred in granting RTC’s motion for summary judgment and denying its motion for summary judgment, arguing that use of the word “derived” in § 1.04 (b) of the asset purchase agreement and “the subsequent two years of payments made by [RTC] clearly establish that [Techwerks] and [RTC] intended the [royalty] revenue pool to include all revenue attributable in any way to the . . . software program.” (Emphasis supplied in Techwerks’ brief.) We do not agree.

Decided November 6, 1998.

Michael S. Welsh, for appellant.

Cochran, Camp & Snipes, David M. Williams, for appellee.

It is well established that where the terms of a written contract are clear and unambiguous, the court must look to the contract to find the intention of the parties — not to matters outside the contract. Choice Hotels Intl. v. Ocmulgee Fields, 222 Ga. App. 185, 186 (1) (474 SE2d 56). See Copy Systems of Savannah v. Page, 197 Ga. App. 435, 436 (398 SE2d 784). It is also well established that a contract should be construed by examining the entire agreement, not by speculating about isolated words, clauses or provisions thereof. Duffett v. E & W Properties, 208 Ga. App. 484, 486 (2) (430 SE2d 858). Further, “[t]he construction of a contract, unambiguous on its face, is a matter of law for the court, even though a party to the contract contends it should be construed differently. OCGA § 13-2-1; Gatins v. NCR Corp., 180 Ga. App. 595, 596 (349 SE2d 818) (1986); Taliaferro v. S & A Restaurant Corp., 172 Ga. App. 399, 400 (323 SE2d 271) (1984).” Burton v. John Thurmond Constr. Co., 201 Ga. App. 10, 11 (410 SE2d 137).

In the case sub judice, the trial court properly adhered to the above maxims by disregarding RTC’s alleged overpayment to Techwerks and by examining the asset purchase agreement in full context. We examine § 1.04 (b) under the same standards and find no duplicity, indistinctness, or uncertainty of meaning or expression. See Tarbutton v. Duggan, 45 Ga. App. 31 (5) (163 SE 298). Absent such obscurity, we affirm the trial court’s declaration that § 1.04 (b) defines RTC’s royalty payment obligation as specified percentages of “ ‘gross revenue derived from licensing, sales, or rental of the software’ and nothing more.” As the trial court reasoned, “Had the parties intended to include all ‘gross revenues’ associated with the . . . software program they would have so indicated in the contract.”

The trial court did not err in partially granting summary judgment in favor of RTC and denying Techwerks’ motion for summary judgment.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


author: Blackburn, Judge.

text:
    A98A1366.
    WARREN v. THE STATE.
    (509 SE2d 82)
   Blackburn, Judge.

Carl Warren was convicted of one count of aggravated battery and two counts of aggravated assault. He appeals, contending: (1) that the trial court erred in failing to give, sua sponte, a limiting instruction contemporaneous with the admission of evidence of prior difficulties between Warren and one of the victims and (2) that the limiting instruction given at the close of evidence was inadequate. For the reasons discussed below, we affirm.

1. The evidence at trial showed that Warren was involved in a violent argument with his wife and father-in-law which resulted in injuries to both victims. The State also presented evidence of a prior incident in which Warren had hit his wife in the face. Warren did not request and the trial court did not give a limiting instruction at the time this evidence was introduced, although the court did give a limiting instruction during the general charge at the close of evidence.

The issues of the giving of a limiting instruction in connection with similar transaction evidence, the necessity of the defendant requesting such charge in writing, and the timing of the giving of a limiting charge where required have been before the appellate courts in numerous cases recently.

Our Supreme Court’s recent decisions in State v. Belt, 269 Ga. 763 (505 SE2d 1) (1998) (Belt II) and State v. Hinson, 269 Ga. 862 (506 SE2d 870) (1998) (Hinson II), addressed issues related to limiting instructions and similar transactions. In Belt v. State, 227 Ga. App. 425 (1) (489 SE2d 157) (1997) (Belt I), no limiting instruction was requested by the defendant or given by the trial court. The Court of Appeals reversed, stating that a limiting instruction must be given by the trial court even absent a written request by the defendant and further provided that the better practice would be for the trial court to give such charge at the time the evidence is introduced.

In Hinson v. State, 229 Ga. App. 840, 842 (3) (494 SE2d 693) (1997) (Hinson I), the Court of Appeals reversed, holding that even though the trial court gave a limiting instruction during its general charge, “the trial court committed reversible error in failing to give, sua sponte, a limiting instruction contemporaneous with the admission of extrinsic acts or similar crimes evidence.” (Emphasis supplied.) Hinson I purported to be controlled by Belt I, but, in fact, made compulsory, that which was recommended in Belt I.

Our Supreme Court granted certiorari in both these cases. In Belt II, the Supreme Court held that it is not reversible error for a trial court not to instruct a jury at any time that similar transaction evidence admitted for a limited purpose must be considered only for that limited purpose, absent a proper written request by a defendant for such charge. The Supreme Court further noted, however, “that, although a trial judge is not required in the absence of a request to give a limiting instruction when similar transaction evidence is admitted, it would be better for the trial judge to do so.” Belt II, supra at 765.

Decided November 6, 1998.

James D. Michael, for appellant.

J. Tom Morgan, District Attorney, Maria Murder-Ashley, Assistant District Attorney, for appellee.

In Hinson II, our Supreme Court held that “the Court of Appeals erred in requiring that a trial court give a contemporaneous limiting instruction without request. Regardless of when the defendant wishes the jury instructed on the limited admissibility of similar transaction evidence, it is incumbent upon him to make a timely request to the trial court for such a charge.” Hinson II, supra at 862.

Neither Belt II nor Hinson II specifically answers the question of whether the trial court is required to give a limiting instruction at the time the similar transaction evidence is introduced where timely and properly requested rather than as a part of the closing charge.

Here, Warren did not request a limiting instruction at any time, but the trial court gave an instruction in its closing charge to the jury. Based on Belt II and Hinson II, the trial court was not required to give a limiting instruction at all under the facts of this case. It was not error for the trial court to fail to give a limiting instruction sua sponte on the limited use of prior difficulties evidence absent a timely request to do so.

2. Warren erroneously contends that the trial court’s instruction regarding the prior difficulties evidence was improper. The instruction, however, was from the suggested pattern jury instruction and has previously been upheld by our Supreme Court in Kettman v. State, 257 Ga. 603, 605-606 (7) (362 SE2d 342) (1987).

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.


text:
    A98A1680.
    PHELPS et al. v. BELLSOUTH ADVERTISING & PUBLISHING CORPORATION et al.
    (508 SE2d 779)
   Blackburn, Judge.

Plaintiffs William A. Phelps and Carol O. Phelps appeal the trial court’s grant of summary judgment to defendants BellSouth Advertising & Publishing Corporation (BAPCO), BellSouth Corporation and BellSouth Telecommunications contending that viable issues remain regarding their claims for damages resulting from errors in their phone directory listings. Because there is no remaining question of material fact and the evidence supports the court’s ruling, we affirm.

The Phelpses complain that their realty business was damaged by three errors in the telephone directories: (1) The lack of an advertisement for Horizon Real Estate in the 1992-1993 Yellow Page Directory; (2) an incorrect over and under listing in the 1992-1993 White Page Directory; and (3) an incorrect over and under listing in the 1993-1994 White Page Directory. The Phelpses filed suit against the defendants alleging breach of contract, negligence and gross negligence. The trial court granted the defendants’ motion for summary judgment.

On appeal of the grant of summary judgment, this Court applies a de novo review of the evidence to determine whether any question of material fact exists. Moore v. Food Assoc., 210 Ga. App. 780 (437 SE2d 832) (1993). Summary judgment is appropriate where the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A defendant meets this burden by “showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. . . . All of the other disputes of fact are rendered immaterial.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

1. The trial court properly granted the defendants’ motion for summary judgment with respect to the failure to list Horizon Real Estate in the 1992-1993 Yellow Page Directory. As an initial matter, BAPCO is the only defendant which had responsibility for the publication of the Yellow Page Directory. It is undisputed that the Phelpses dealt only with BAPCO concerning advertising in the Yellow Pages. Thus, the trial court properly granted summary judgment to BellSouth Corporation and BellSouth Telecommunications, Inc.

The Phelpses cannot establish a claim for breach of contract or negligence against BAPCO. “A contract is an agreement between two or more parties for the doing or not doing of some specified thing.” OCGA § 13-1-1. The evidence shows the lack of any agreement. It is undisputed that the two parties never discussed an advertisement in the Yellow Pages.

The Phelpses also have not pointed to any evidence which supports a negligence claim against BAPCO. The Phelpses contend that BAPCO negligently allowed a former business associate to discontinue a Yellow Page advertisement for Horizon Real Estate. This argument is unfounded because there was no advertisement to discontinue as Horizon Real Estate never had an advertisement in the Yellow Page Directory.

The Phelpses also contend that BAPCO negligently denied them the opportunity to advertise Horizon Real Estate in the Yellow Page Directory by never contacting the Phelpses for an order. However, “[i]f a defendant owes no legal duty to the plaintiff, there is no cause of action in negligence.” (Punctuation omitted.) Meinken v. Piedmont Hosp., 216 Ga. App. 252, 253 (454 SE2d 147) (1995). As a private business, BAPCO has no duty to seek out business opportunity and therefore cannot be liable for its failure to do so. Southern Bell Tel. &c. Co. v.C & S Realty Co., 141 Ga. App. 216 (233 SE2d 9) (1977), overruled on other grounds, Ga.-Carolina Brick &c. Co. v. Brown, 153 Ga. App. 747 (266 SE2d 531) (1980); Robin v. BellSouth Advertising &c. Co., 221 Ga. App. 360, 363 (471 SE2d 294) (1996) (“BAPCO’s directory is a private publication which may accept or reject advertising as it chooses”).

2. The trial court properly granted the defendants’ motion for summary judgment with respect to the incorrect over and under listing in the 1992-1993 and 1993-1994 White Page Directories. Neither BAPCO nor BellSouth Corporation had responsibility for the over and under listings. Furthermore, the record is devoid of evidence of any involvement by BellSouth Corporation, and the only evidence of involvement by a representative of BAPCO was to advise the Phelpses whom to call. It is undisputed that a representative of BAPCO could not make changes to the over and under listings and that the Phelpses communicated directly with the Southern Bell Business Office.

The claims asserted against BellSouth Telecommunications relating to errors in the White Page Directory are governed by the General Subscriber Service Tariff (Tariff). The Tariff requires that BellSouth Telecommunications publish a directory of phone listings and limits the liability of BellSouth Telecommunications for errors in that directory under certain circumstances.

Section A2.5.1 of the Tariff states “the liability of the Company for damages arising out of mistakes, [or] omissions . . . occurring in the course of furnishing service or other facilities and not caused by the negligence of the subscriber, or of the Company in failing to maintain proper standards of maintenance and operation and to exercise reasonable supervision shall in no event exceed an amount equivalent to the proportionate charge to the subscriber for the period of service during which such mistake . . . occurs.” This limitation on liability is expressly applicable to errors in the phone directory pursuant to § A6.1.1H of the Tariff.

The Phelpses contend that the Tariff excludes from its protection any claims caused by the negligence of BellSouth Telecommunications, citing to State Farm Fire &c. Co. v. Southern Bell Tel. &c. Co., 245 Ga. 5 (262 SE2d 895) (1980). State Farm, however, concerned § A2.5.4 of the Tariff addressing the defacement of premises, not erroneous listings. As such, State Farm is not controlling here. The claim in this case triggered § A2.5.1, and the Phelpses have not presented evidence that BellSouth Telecommunications was negligent “in failing to maintain proper standards of maintenance and operation and to exercise reasonable supervision.” The claims concerning the over and under listings fall within the scope of the Tariff.

(a) The Phelpses contend the errors in the 1992-1993 White Page Directory occurred when BellSouth Telecommunications negligently allowed a former business associate to change the over and under listings for the Phelpses. The trial court properly found this claim was barred by the Tariff. The Tariff limits the time period in which claims can be presented. Section A2.5.5 provides that “the company shall not be liable for damages or statutory penalties in any case where a claim is not presented in writing within sixty days after the alleged delinquency occurs.” It is undisputed that the Phelpses failed to give written notice of the errors in the 1992-1993 White Page Directory to BellSouth Telecommunications within the prescribed time.

Moreover, no evidence in the record supports the contention that the listings were changed. The Phelpses created the initial over and under listing when they were associated with Leaders in Real Estate. After the Phelpses left Leaders in Real Estate, no changes were made to the Phelpses’ over and under listing. Moreover, the Phelpses were aware from initiating the over and under listing in the previous year that changes to those listings had to be made by the Southern Bell Business Office. Since the Phelpses did not make the necessary call, the over and under listings were not changed.

(b) The trial court properly granted BellSouth Telecommunications’ motion for summary judgment with respect to the incorrect over and under listing in the 1993-1994 White Page Directory and properly limited recovery to that provided in the Tariff. BellSouth Telecommunications admitted that the customer service associate who handled the listing made a clerical error when she entered the information into the computer. However, it is undisputed that the customer service associate received training and that she performed her job in accordance with that training. Although the Phelpses argue that a BAPCO representative had not been trained, that evidence is not pertinent to the errors in the over and under listings. The Phelpses cannot show that the claim falls within the exclusion to the Tariff. Consequently, the Phelpses’ recovery is limited pursuant to the Tariff. Section A2.5.1 of the Tariff limits the liability of Bell-South Telecommunications to the proportionate cost of the service during the period in which the error was made.

Decided November 6, 1998.

G. E. Bo Adams, Edwin S. Varner, Jr., for appellants.

Jones, Cork & Miller, W. Warren Plowden, Jr., Alan G. Snipes, for appellees.

Judgment affirmed.

Johnson, P. J., and Eldridge, J., concur.

       Over and under listings show the residential phone number of an individual followed by the individual’s business title and business phone number in a separate listing.


text:
    A98A1729.
    MOBLEY v. THE STATE.
    (508 SE2d 778)
   Blackburn, Judge.

John E. Mobley appeals his conviction of aggravated assault and cruelty to children following a jury trial. He contends that the trial court erred in failing to give, without a request, a limiting instruction regarding the treatment of similar transaction evidence contemporaneous with the introduction of that evidence. For the reasons set forth below, we affirm.

The issues of the giving of a limiting instruction in connection with similar transaction evidence, the necessity of the defendant requesting such charge in writing, and the timing of the giving of a limiting charge where required, have been before the appellate courts in numerous cases recently.

Our Supreme Court’s recent decisions in State v. Belt, 269 Ga. 763 (505 SE2d 1) (1998) (Belt II) and State v. Hinson, 269 Ga. 862 (506 SE2d 870) (1998) (Hinson II), addressed issues related to limiting instructions and similar transactions. In Belt v. State, 227 Ga. App. 425 (1) (489 SE2d 157) (1997) (Belt I), no limiting instruction was requested by the defendant or given by the trial court. The Court of Appeals reversed, stating that a limiting instruction must be given by the trial court even absent a written request by the defendant, and further provided that the better practice would be for the trial court to give such charge at the time the evidence is introduced.

In Hinson v. State, 229 Ga. App. 840, 842 (3) (494 SE2d 693) (1997) (Hinson I), the Court of Appeals reversed, holding that even though the trial court gave a limiting instruction during its general charge, “the trial court committed reversible error in failing to give, sua sponte, a limiting instruction contemporaneous with the admission of extrinsic acts or similar crimes evidence.” (Emphasis supplied.) Hinson I purported to be controlled by Belt I, but, in fact, made compulsory, that which was recommended in Belt I.

Our Supreme Court granted certiorari in both these cases. In Belt II, the Supreme Court held that it is not reversible error for a trial court not to instruct a jury at any time that similar transaction evidence admitted for a limited purpose must be considered only for that limited purpose, absent a proper written request by a defendant for such charge. The Supreme Court further noted however, “that, although a trial judge is not required in the absence of a request to give a limiting instruction when similar transaction evidence is admitted, it would be better for the trial judge to do so.” Belt II, supra at 765.

Decided November 6, 1998.

John L. Tracy, for appellant.

Kenneth B. Hodges III, District Attorney, Gregory W. Edwards, Assistant District Attorney, for appellee.

In Hinson II, our Supreme Court held that “the Court of Appeals erred in requiring that a trial court give a contemporaneous limiting instruction without request. Regardless of when the defendant wishes the jury instructed on the limited admissibility of similar transaction evidence, it is incumbent upon him to make a timely request to the trial court for such a charge.” (Emphasis supplied.) Hinson II, supra at 862.

Neither Belt II nor Hinson II specifically answer the question of whether the trial court is required to give a limiting instruction at the time the similar transaction evidence is introduced where timely and properly requested, rather than as a part of the closing charge.

This case is controlled by Hinson II in which the Supreme Court held it was not reversible error for a trial court to fail to give a limiting instruction on similar transaction evidence at the time of its admission, in the absence of a request to do so. A timely request to charge is necessary regardless of when the charge is to be given. Here, Mobley did not request that a limiting instruction be given until the parties rested, at which time the instruction was given. Like the defendant in Hinson, Mobley received a limiting instruction during the court’s general charge to the jury.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.


author: Beasley, Judge.

text:
    A98A1974.
    In the Interest of B. C., a child.
    (508 SE2d 774)
   Beasley, Judge.

Benjamin Clayton, incarcerated as a habitual felon for burglary, aggravated assault, and probation violations, lost parental rights to his son, B. C. He appeals on the ground that insufficient evidence supported three findings: (i) present parental misconduct; (ii) the cause of deprivation was likely to continue or would not be remedied; and (iii) termination of parental rights was in the best interest of the child.

“The decision to terminate parental rights involves a two-step process. First, pursuant to OCGA § 15-11-81 (a), the court must determine whether there is present clear and convincing evidence of parental misconduct or inability as provided in subsection (b) of § 15-11-81. Subsection (b) provides in relevant part that the court determines parental misconduct or inability by finding that: (i) The child is a deprived child, as such term is defined in Code Section 15-11-2; (ii) The lack of proper parental care or control by the parent in question is the cause of the child’s status as deprived; (iii) Such cause of deprivation is likely to continue or will not likely be remedied; and (iv) The continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. Second, if the court finds there is clear and convincing evidence of such parental misconduct or inability, the court shall then consider whether termination of parental rights is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home. The standard of appellate review where a parent’s rights to her child have been severed is whether after reviewing the evidence in the light most favorable to the appellee Georgia Department of Human Resources, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. Moreover, in reviewing the evidence on appeal, this Court does not weigh the evidence or determine the credibility of witnesses; rather, we defer to the Juvenile Court’s factfinding and affirm unless the evidence fails to satisfy the appellate standard.”

(a) Present Parental Misconduct. Conceding the evidence showed the abandoned child was deprived, Clayton argues that the evidence of his parental misconduct (such as his convictions) was insufficient because it related to past, not present, episodes. But OCGA § 15-11-81 (b) (4) (B) provides: “In determining whether the child is without proper parental care and control, the court shall consider . . . (iii) Conviction of the parent of a felony and imprisonment therefor which has a demonstrable negative effect on the quality of the parent-child relationship. . . .”

Expert witnesses testified that Clayton’s repeated incarcerations prevented him from interacting and bonding with his son (two years old at the time of trial), from providing him with much-needed stability and trust, and from serving as a good example for him. “Although imprisonment alone does not always compel a termination of parental rights, it will support such a ruling when adequate aggravating circumstances are shown to exist. These aggravating circumstances may include a criminal history of repetitive incarcerations for the commission of criminal offenses or parole violations, which constitutes an additional factor which may be considered in determining whether the child presently is without the proper parental care and control of the offending parent, and that such is likely to continue.”

Clayton has been incarcerated for most of the life of the child. In 1990 he was sentenced to five years probation for two counts of felony burglary. He absconded and his probation was revoked. He spent time in a diversion center and absconded again, for which he was sentenced to every weekend in jail for 12 months. On July 10, 1996, he was arrested and incarcerated again for aggravated assault, and his probation was revoked the third time when he pled guilty to the charge in November 1996, making him a habitual felon. He received a five-year sentence, of which two years must be served in confinement. Clayton admits that two-year-old B. C. does not presently know him and that there is no bond between them.

Past conduct during periods of freedom is also a good harbinger of whether deprivation will continue after incarceration. During a period of freedom, Clayton visited the child only four times and was once so tardy that he could spend only five minutes. Clayton has a diagnosed brain functioning disorder which negatively affects his anger control. The aggravated assault conviction arose out of a heated fistfight. He told one officer he would kill the child’s mother if freed, and his abuse of a DFACS worker necessitated police intervention. When the mother abandoned the child and the child was placed in the State’s custody, Clayton failed for over a year to (i) comply with most aspects of the court-ordered unification plan (obtain stable housing, cooperate with DFACS, maintain contact with caseworker or with child, get psychological evaluation, attend parenting classes); (ii) communicate with the child in a meaningful, supportive, parental manner; and (iii) pay the nominal child support ordered by the court, even when employed.

Clayton’s present confinement is a current, not a past, episode. His conduct during periods of liberty shows little interest in or capacity for adequately caring for the child. Clear and convincing evidence supported a finding of parental misconduct.

(b) Cause of Deprivation Likely to Continue. “In addition to evidence of present parental misconduct or inability, evidence of past conduct may be considered in determining whether the deprivation would be likely to continue.” Repeated incarceration preventing one from caring for a child indicates a likelihood of continued deprivation. Patterns persist absent concerted adjustment, which is virtually nonexistent.

Clayton argues that his participation in various educational and life-skill building classes in prison is more recent and precludes a finding that the cause of deprivation will continue. Clayton began the prison programs only five weeks before the termination hearing. This late activity, while it will help him personally to structure a productive life for himself, does not negate the years of neglect of his boy. Considering even Clayton’s positive efforts to improve himself, “the trial court must determine whether a parent’s conduct warrants hope of rehabilitation.” Contra factors are that Clayton’s brain functioning problem would make it improbable he could provide for the child and testimony that continued deprivation was likely. Sufficient evidence supported the court’s finding.

(c) Best Interest of the Child. “Those same factors which show the existence of parental misconduct or inability can also support a finding that termination of parental rights of the defaulting parent would be in the child’s best interest.” In addition to the evidence cited above, testimony showed B. C., a special needs child, crucially needed a structured, consistent, stable environment, that Clayton’s incarcerations harmed the boy, that B. C. was thriving in foster care in contrast to the listless state in which he arrived there, that B. C. was attached to his foster home, and that it would harm B. C. to remove him from the foster home. A rational trier of fact could find clear and convincing evidence that termination was in B. C.’s best interests.

Decided November 6, 1998.

Jerry W. Moncus, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, William C. Joy, Senior Assistant Attorneys General, Shalen A. Sgrosso, Stephanie M. Baldauff, Assistant Attorneys General, Richard K. Murray, for appellee.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       (Citations and punctuation omitted.) In the Interest of K. W., 233 Ga. App. 140, 141 (2) (503 SE2d 394) (1998).

       (Citations and punctuation omitted; emphasis in original.) In the Interest of T. B. R., 224 Ga. App. 470, 473 (1) (b) (480 SE2d 901) (1997); see In the Interest of J. M. W., 216 Ga. App. 166, 167 (1) (453 SE2d 764) (1995).

       See In the Interest of T. B. R., supra, 224 Ga. App. at 473.

       See OCGA § 15-11-81 (b) (4) (C).

       Compare In the Interest of R. U., 223 Ga. App. 440, 441 (477 SE2d 864) (1996) (unincarcerated parents strove diligently to overcome personal problems and maintain regular and consistent contact with the child).

       (Citations and punctuation omitted.) In the Interest of M. E. C., 228 Ga. App. 9, 13 (1) (c) (491 SE2d 107) (1997).

        In the Interest of A. W., 231 Ga. App. 770, 774 (501 SE2d 22) (1998); In the Interest of R. D. S. P., 230 Ga. App. 205, 207-208 (495 SE2d 867) (1998); see K. W., supra, 233 Ga. App. at 143 (2) (“the past conduct of the parent is properly considered by the court in determining whether such conditions of deprivation are likely to continue.... The decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact”) (citation and punctuation omitted).

       (Citation and punctuation omitted.) T. B. R., supra, 224 Ga. App. at 475; see M. E. C., supra, 228 Ga. App. at 13 (attendance at five weeks of AA meetings just before the termination hearing was suspect); In the Interest of M. N. L., 221 Ga. App. 123, 124 (1) (470 SE2d 753) (1996) (recent progress did not negate repetitive incarcerations); In the Interest of J. M. C., 201 Ga. App. 173, 174-175 (410 SE2d 368) (1991) (recent progress did not overcome lengthy history of repetitive incarcerations).

       (Citations and punctuation omitted.) M. E. C., supra, 228 Ga. App. at 14 (2).