author: Johnson, Judge.

text:
    A97A0393.
    EDGE v. THE STATE.
    (487 SE2d 117)
   Johnson, Judge.

Bradley Edge was charged in Count 1 of an accusation with driving under the influence of alcohol to the extent that it was less safe for him to drive. See OCGA § 40-6-391 (a) (1). In Count 2, he was charged with having a blood-alcohol concentration of .10 grams or more in violation of former OCGA § 40-6-391 (a) (4). A jury found him guilty on both counts. Edge appeals from the convictions entered on the verdict.

1. Edge contends the trial court erred in denying his motion in limine/motion to suppress the results of the intoximeter test when he was not advised of his implied consent rights contemporaneously with his arrest and when an officer other than the arresting officer read him the rights.

(a) Timing of the advice. An enforcement officer with the Georgia Department of Transportation (“DOT”) stopped Edge on 1-20 after observing him drive in the high occupancy vehicle (“HOV”) lane without any passengers in his truck. See OCGA §§ 32-9-4 (a), (b); 40-6-54. As the officer approached Edge’s pickup truck, he noticed that Edge’s eyes were bloodshot and he smelled of alcohol. When asked if he had been drinking, Edge responded that he had consumed two sixteen-ounce containers of beer. At the officer’s request, Edge handed over his driver’s license and proof of insurance and stepped out of the truck. The officer walked Edge over to a retaining wall and then went back to the patrol car where he called the Georgia State Patrol to advise them he would be out of his vehicle while he conducted field sobriety tests on a suspected drunk driver. Edge performed the horizontal gaze nystagmus (“HGN”), “walk and turn,” and “one-leg stand” tests. Based on Edge’s performance on these tests, the officer concluded that Edge was impaired. However, the DOT officer testified that he wanted to confirm his determination that Edge was driving while under the influence of alcohol; he had been on the job for a month and this was the first time he had investigated a driver for driving under the influence. The officer called the State Patrol again, this time requesting that a state trooper be sent to the scene to conduct an alco-sensor test. About an hour and a half later, a state trooper arrived and administered the breath test. The state trooper then read Edge his implied consent rights and transported him to the county jail, where he was given an intoximeter test. In all, Edge was detained for approximately two hours before being advised of his implied consent rights.

“In order for the result of a chemical test to be admissible at trial, the suspect must be advised of his implied consent rights at a time as close in proximity to the instant of arrest as the circumstances of the individual case might warrant.” (Citation and punctuation omitted.) Smith v. State, 204 Ga. App. 576, 577 (2) (b) (420 SE2d 29) (1992); see State v. Lamb, 217 Ga. App. 290, 291 (456 SE2d 769) (1995). Only in limited situations is a delay warranted, such as where advising the accused at the moment of physical arrest would not enable him to make an intelligent choice concerning the state’s request and his right to undergo an independent test or where the exigencies of police work prevent giving the advice. See Perano v. State, 250 Ga. 704, 707 (300 SE2d 668) (1983). For example, in Clapsaddle v. State, 208 Ga. App. 840, 842 (432 SE2d 262) (1993), we held that a one-hour delay was not warranted in the absence of exigent circumstances, any indication that the accused was too intoxicated or emotionally distraught to understand his implied consent rights, or any indication that the officer was unaware the detainee would be charged with violating OCGA § 40-6-391. Likewise, in Vandiver v. State, 207 Ga. App. 836, 837-838 (1) (429 SE2d 318) (1993), we held that where the accused was not informed of his implied consent rights until after he waited for a tow truck and was transported to a police station, simply because it was the department’s practice to follow this procedure, the delay was unwarranted and test results inadmissible. However, in Martin v. State, 211 Ga. App. 561, 562 (440 SE2d 24) (1993), a majority of this Court held that a ten-minute delay in reading implied consent rights because the officer did not have her new implied consent card was excusable. And, in Fore v. State, 180 Ga. App. 196 (348 SE2d 579) (1986), we held that the implied consent law was complied with where a detainee waited 20-25 minutes before being read his rights, based on the officer’s need to pursue and arrest another driver coupled with the fact that the detainee probably would not have benefited in any way by being informed of his rights any earlier.

It is clear from these cases that, in deciding whether the delay in giving implied consent advice is excusable, we consider the particular set of facts and circumstances of each case. See State v. Lubin, 164 Ga. App. 689, 692 (297 SE2d 371) (1982). Here, the delay resulted from the newly hired DOT officer’s desire to be certain that his prehminary determination that Edge was impaired was correct. The officer contacted the State Patrol for assistance as soon as he finished administering the field sobriety tests. There is no evidence in the record to suggest either that the officer knew in advance that the state trooper’s arrival would be delayed or that the time lapse was caused by any intention to deprive Edge of his rights. In fact, it appears from the DOT officer’s testimony that his intent was to avoid charging Edge with driving while under the influence without having a sufficient basis therefor. Moreover, there is no evidence that Edge would have benefited by being informed of his rights any earlier than he was. See Fore, supra.

(b) Advice given by other than the arresting officer. We do not agree with Edge that the implied consent statute was violated because the state trooper who read him his rights was not the arresting officer. See OCGA §§ 40-6-392; 40-5-55. Edge reads the statute much too narrowly. Although the DOT officer made the traffic stop, wrote up the arrest report and considered himself the arresting officer, the state trooper was present during and assisted in the arrest by administering the final, determinative field test, placing Edge in his patrol car, and transporting him to jail. “[Edge] does not suggest, nor can we imagine, any detriment he may have suffered as a result of the fact that it was [the state trooper], rather than [the DOT enforcement officer], who advised him of his rights.” State v. Buice, 176 Ga. App. 843, 844 (338 SE2d 293) (1985). No error or harm has been shown.

We note that even if the implied consent statute was not complied with and the intoximeter result therefore inadmissible, the evidence was nonetheless sufficient to authorize a conviction of the charge that Edge drove while under the influence to the extent that it was less safe for him to do so.

2. We find no merit in Edge’s contention that the trial court erred in denying his motion to dismiss because an enforcement officer with the DOT lacks authority to enforce HOV lane violations. Edge argues the enforcement and arrest powers of DOT officers extend only to those geographic areas enumerated in OCGA § 32-6-29 (b) (1), which areas do not include HOV lanes. However, OCGA § 32-6-29 (b) provides that DOT enforcement officers have those specific powers in addition to any powers or duties created by any other law. OCGA § 32-6-29 (c) states that DOT enforcement officers have the full authority of peace officers while in the performance of their duties. OCGA § 17-4-23 (a) provides, without geographical limitation, that a law enforcement officer is authorized to arrest a person accused of violating any law or ordinance governing the operation of a vehicle by issuing a citation where the offense is committed in his presence. See OCGA § 17-4-23 (a); Glazner v. State, 170 Ga. App. 810, 811 (318 SE2d 233) (1984). McDuffie’s authority to arrest Edge was, therefore, contained in “other law,” namely OCGA § 17-4-23. We also point out that even a private person can make an arrest for an offense committed in his presence. See Wells v. State, 206 Ga. App. 513 (426 SE2d 231) (1992); OCGA § 17-4-60.

Edge relies upon a 1978 opinion of the attorney general which opines that the arrest powers of DOT enforcement officers do not extend beyond those specifically enumerated in what is now OCGA § 32-6-29. See 1978 Op. Atty. Gen. No. 78-73. We are not persuaded by the conclusion reached in that opinion which, in our view, fails to give proper emphasis to the statutory provision that DOT enforcement officers have the full authority of peace officers and any powers created by any other law. See OCGA § 32-6-29 (b), (c). Moreover, in the opinion, which was written nearly 20 years ago, the attorney general did not address, and probably did not contemplate, the situation presented here. Interestingly, in May 1996, the Governor of the State of Georgia issued an executive order, referencing this same 1978 opinion of the attorney general, specifically conferring upon DOT enforcement officers the authority to enforce travel restrictions in HOV lanes, including the issuance of citations for such violations.

3. Edge claims the trial court erred in denying his motion for mistrial after McDuffie testified that the HGN test results indicated a blood-alcohol concentration of over .10 percent when, according to Edge, HGN testing has not evolved to the point it can be used to ascertain specific blood-alcohol content. Assuming there was error, Edge failed to preserve the issue because, after the court gave curative instructions, Edge did not request further curative instructions or renew his motion for mistrial. See D’Angelo v. State, 223 Ga. App. 558, 560 (2) (479 SE2d 384) (1996).

Decided May 28, 1997.

Before Judge Smith.

Bruce F. Morriss, Daniel Shim, for appellant.

Ralph T. Bouiden, Jr., Solicitor, Charles C. Flinn, W. Cliff Howard, Assistant Solicitors, for appellee.

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.

       Areas specifically enumerated are: rest areas, truck-weighing stations or checkpoints, wayside parks, parking facilities, toll facilities and any buildings or grounds for public equipment and personnel used for or engaged in administration, construction or maintenance of the public roads or research pertaining thereto. OCGA § 32-6-29 (b) (1).

       Peace officers are defined in the statute as persons who by virtue of their office are vested by law with a duty to maintain public order or to make arrests for offenses, whether the duty extends to all crimes or specific offenses.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A97A0553.
    DRIVER et al. v. NUNNALLEE.
    (487 SE2d 122)
   Smith, Judge.

Carolyn Driver and her husband filed an action against Emily Nunnallee alleging she negligently caused a vehicular collision, injuring Driver. The trial court granted Nunnallee’s motion to dismiss or for summary judgment on the ground that service was never perfected on her. We agree and affirm.

The collision in this case occurred on February 14, 1992. Subsequent to the collision, Nunnallee moved from her Coweta County address to Atlanta and then, in February 1994, to Michigan. In January 1994, just prior to Nunnallee’s move to Michigan, the Drivers filed a complaint against Nunnallee in Coweta County alleging that Nunnallee was a citizen of Georgia and that she could be served at her- address in Coweta County. Nunnallee was served with the complaint in March 1994 at her Michigan address. Nunnallee moved to dismiss for lack of personal jurisdiction, and in December 1994, the Drivers filed an amended complaint. That complaint alleged that Nunnallee was a citizen of Michigan and that she could be served pursuant to OCGA § 9-10-94. It is undisputed that Nunnallee was not personally served with the amended complaint; it appears only that the Drivers’ attorney mailed a copy of the complaint to Nunnallee’s attorney. The Drivers then dismissed the action without prejudice and filed this renewal action in April 1995.

The trial court concluded that service of the first complaint was not proper under OCGA § 9-11-4 (e) (2), the amended complaint did not cure the defective service, and the renewal statute was not available to the Drivers. The court further concluded that the action was barred by the two-year statute of limitation pursuant to OCGA § 9-3-33. The Drivers appeal, contending the trial court erroneously concluded that service should have been perfected under OCGA § 9-11-4 (e) (2). They maintain that Nunnallee was not a Georgia resident who was simply out of the state when service was perfected but that she was a Michigan resident subject to service under the Georgia Long Arm Statute, OCGA §§ 9-10-90 to 9-10-94, and that they perfected service under this provision.

In addressing the threshold issue of whether service of the first complaint was proper under the Georgia Long Arm Statute or under OCGA § 9-11-4 (e) (2), we must look to the language of that complaint. Shahan v. Scott, 259 Ga. 172 (377 SE2d 859) (1989). Although the Drivers now contend that Nunnallee was a Michigan resident subject to service under the Long Arm Statute, the first complaint as served on Nunnallee did not allege that she resided in Michigan or that she was being served pursuant to the Long Arm Statute. It alleged that Nunnallee was a Georgia resident, and service of the complaint under OCGA § 9-11-4 (e) (2) was therefore required. Shahan at 172. That statute provides for personal service on a Georgia resident outside the state, provided certain conditions are met. It is undisputed that those conditions were not met: No affidavit was filed showing that Nunnallee was a resident of Georgia but that service needed to be obtained outside the state, and no order was filed providing for personal service outside the state. Consequently, a valid action was not initiated by attempted service of the first complaint. See generally Brooks v. Young, 220 Ga. App. 47, 48 (467 SE2d 230) (1996); Osborne v. Hughes, 200 Ga. App. 558 (409 SE2d 58) (1991).

The Drivers attempt to distinguish Shahan on the basis that the address of the defendant as alleged in Shahan’s complaint was never modified or amended, and plaintiffs therefore “had to stand on” their allegation of Georgia residence. According to the Drivers, they properly amended their complaint to reflect Nunnallee’s status as a Michigan resident. Their amended complaint indeed recited that Nunnallee was a Michigan resident and that service could be made on her at her Michigan address. But the amended complaint, without proper service, could not cure the defective service of the first complaint. Because no proper service was perfected of the original complaint, it did not initiate a valid suit, see Brooks, supra, to which the amended complaint could “relate back.” It was consequently incumbent on the Drivers to perfect service of the amended complaint within the statute of limitation. They failed to do so.

Decided May 28, 1997.

Before Judge English.

Webb & Lindsey, Richard P. Lindsey, Eric K. Maxwell, for appellants.

Beck, Owen & Murray, Richard L. Collier, for appellee.

The amended complaint was never personally served on Nunnallee but was only mailed to her attorney. Although OCGA § 9-11-5 permits service of pleadings subsequent to the first complaint on a party’s attorney, nothing in that provision allows for service of process on an attorney. Moreover, the amended complaint purporting to perfect service was filed December 4,1994, outside the two-year statute of limitation provided for in OCGA § 9-3-33. Even assuming that service was perfected by mailing the amended complaint to Nunnallee’s attorney, the suit remained invalid because service was not perfected within the applicable statute of limitation. See Brooks, supra at 48. It follows that the Drivers’ action against Nunnallee was never a valid lawsuit, subject to renewal, id., and the trial court properly dismissed the action.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.

       Driver also named Larry Nunnallee as defendant in the original action and the renewed action. He was dismissed without prejudice in the renewal action, however.

       Under OCGA § 9-11-4 (e) (2) the fact that the person to be served is a resident must be shown “by affidavit, to the satisfaction of the court.” Furthermore, if “it shall appear, either by affidavit or by a verified complaint on file, that a claim is asserted against the person in respect to whom the service is to be made, and that he is a necessary or proper party to the action, the court may grant an order that the service be made by personal service outside the state. Such service shall be made by delivering a copy of the process together with a copy of the complaint in person to the persons served.” Id.


text:
    A97A1368.
    SANDERS v. THE STATE.
    (487 SE2d 115)
   Johnson, Judge.

We granted Larry Sanders’ application for interlocutory review of the trial court’s denial of his motion to suppress cocaine seized from his car. Sanders contends the traffic stop which led to the discovery of the cocaine was invalid, unreasonably pretextual and unrelated to any concern regarding the public safety.

At the motion to suppress hearing, an officer with the Georgia State Patrol testified that he was driving behind Sanders when an investigator with a county drug enforcement unit, who was driving in the opposite direction, contacted him by radio. The drug squad investigator told the state trooper that he had some information on the driver of the car in front of him, and if he stopped him for any reason, to let the investigator know. The state trooper continued to follow Sanders’ car. After traveling almost one mile, Sanders turned left, and then made a wide right turn, crossing into the far lane of the roadway. The trooper pulled Sanders over and radioed to the investigator, informing him that a stop had been made. Sanders was issued a warning for making an improper turn and weaving. The trooper stated that he would have stopped Sanders for making the improper turn, regardless of what the investigator had told him, but admitted that it is possible that he may not have continued to follow Sanders had he not received the radio communication. After obtaining permission to search Sanders’ car, the drug squad investigator found a small amount of crack cocaine under the carpet beneath the driver’s seat.

1. Sanders first argues that there was no evidence that the street upon which the stop was made was a “highway” as defined by OCGA § 40-1-1 (19), making it an invalid stop. This argument was not raised below, however, and is therefore waived. See Green v. State, 223 Ga. App. 467, 469 (2) (477 SE2d 895) (1996).

2. With regard to Sanders’ argument that the stop was pretextual, the law simply stated is: “ ‘The stop of a vehicle is authorized, and not pretextual, if the officer observed a traffic offense.’ [Cits.]” Jones v. State, 200 Ga. App. 666 (1) (409 SE2d 251) (1991). Sanders bases his contention that the stop was pretextual on United States v. Smith, 799 F2d 704 (11th Cir. 1986). However, this Court previously considered the decision in Smith and concluded: ‘We find nothing in the Smith decision which would suggest that an officer is precluded from stopping a vehicle for an observed traffic violation if he is motivated by a suspicion, itself insufficient to justify an investigatory stop, that the vehicle might be transporting drugs.” Williams v. State, 187 Ga. App. 409, 411 (1) (370 SE2d 497) (1988). See also Wise v. State, 201 Ga. App. 412 (411 SE2d 303) (1991).

“When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.” (Citation and punctuation omitted.) Sutton v. State, 223 Ga. App. 721, 722 (1) (478 SE2d 910) (1996). Because there was evidence that Sanders’ vehicle was stopped as a result of an observed traffic violation, the trial court’s denial of the motion to suppress was not clearly erroneous and does not demand a reversal.

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.

Decided May 28, 1997.

Before Judge Crosby.

Thomas H. Pittman, for appellant.

C. Paul Bowden, District Attorney, for appellee.


author: Andrews, Chief Judge.

text:
    A97A0029.
    MODERN WOODMEN OF AMERICA v. CRUMPTON.
    (487 SE2d 47)
   Andrews, Chief Judge.

Modern Woodmen of America, a fraternal life insurance society, brought a declaratory judgment action seeking a declaration of its rights and obligations relating to a claim against it by an insured, Marjorie Crumpton, that she was defrauded by a Modern Woodmen insurance agent. Ms. Crumpton filed an answer and a counterclaim alleging that Modern Woodman was liable to her for the acts of its agent on the basis of fraud, breach of contract, breach of fiduciary duty, and negligence. She sought compensatory and punitive damages and attorney fees pursuant to OCGA § 13-6-11. We granted Modern Woodmen’s application for an interlocutory appeal from the trial court’s denial of its motion for summary judgment.

In 1987, Modern Woodmen issued a life insurance policy to Ms. Crumpton. The agent procuring the policy for Modern Woodmen was Joel Crumpton, Ms. Crumpton’s husband. Without Ms. Crumpton’s knowledge or authorization, Mr. Crumpton fraudulently obtained two loans from Modern Woodmen against Ms. Crumpton’s policy, one in September 1989 for $406.94 and one in March 1990 for $243.49. In both instances, Mr. Crumpton, in his position as the procuring agent on the policy, fraudulently obtained the loan and the check for the loan amount issued by Modern Woodmen payable to Ms. Crumpton. Mr. Crumpton then forged his wife’s endorsement on both checks and converted the money to his own use. Modern Woodmen did not know about, approve, or ratify Mr. Crumpton’s fraudulent acts.

Ms. Crumpton testified by deposition that she had no knowledge of the loans against the policy and did not receive any correspondence from Modern Woodmen relating to the loans until after her divorce from Mr. Crumpton. She testified that, when she was married to Mr. Crumpton, he received all of the business correspondence from Modern Woodmen concerning the policy and that she relied on him to keep her informed. The Crumptons divorced in 1991, and Ms. Crumpton became aware of the loans in early 1992 when she received correspondence regarding the loans from Modern Woodmen. In mid-1992, Ms. Crumpton demanded the cash surrender value of the policy from Modern Woodmen but received only the cash value reduced by the amount the policy had been diminished by the unauthorized loans. Subsequently, Ms. Crumpton, through counsel, informed Modern Woodmen that the loans were unauthorized and that her endorsements on the checks were forged. She demanded that Modern Woodmen refund the cash value she lost as a result of the unauthorized loans and pay her additional sums including punitive damages for the tortious conduct of its agent. Shortly thereafter, Modern Woodmen filed the present declaratory judgment action in December 1992. Mr. Crumpton admitted in deposition testimony given in March 1994 that he fraudulently obtained the loans and forged his wife’s endorsement on the loan checks without her knowledge. He testified that until the latter part of 1992 he had denied forging the checks.

Modern Woodmen moved for summary judgment on the basis that it was not liable for the tortious acts committed by its agent, Mr. Crumpton, in fraudulently obtaining the unauthorized loans for his own benefit and forging Ms. Crumpton’s endorsement on the checks.

Generally, an employer may be held responsible for the tortious act of an employee where the act was “authorized by the employer prior to its commission, ratified [by the employer] after its commission, or committed within the scope of the employment. [Cit.]” Sexton Bros. Tire Co. v. Southern Burglar Alarm Co. &c., 153 Ga. App. 413, 414 (265 SE2d 335) (1980). There is no evidence that Modern Woodmen authorized or knew about Mr. Crumpton’s tortious acts prior to or during their commission and no evidence that Modern Woodmen ratified any of his tortious actions. Accordingly, the issue is whether Modern Woodmen may be held liable in tort because Mr. Crumpton committed the tortious acts within the scope of his employment.

Pursuant to OCGA § 51-2-2, an employer “shall be liable for torts committed by . . . his servant by his command or in the prosecution and within the scope of his business. . . .” However, “in determining the liability of the master for the negligent or wilful acts of a servant, the test of liability is, not whether the act was done during the existence of the employment, but whether it was done within the scope of the actual transaction of the master’s business for accomplishing the ends of his employment. [Cits.] If a servant steps aside from his master’s business to do an act entirely disconnected from it, and injury to another results from a doing of the act, the servant may be liable, but the master is not liable.” (Punctuation omitted.) Wittig v. Spa Lady &c., 182 Ga. App. 689, 690 (356 SE2d 665) (1987). Thus, where the tortious conduct of the employee is personal to himself because it springs from purely personal motives, the employee is deemed to have departed from the scope of his employment and the master is not liable. Id.; Effort Enterprises v. Crosta, 194 Ga. App. 666 (391 SE2d 477) (1990).

Mr. Crumpton’s acts in fraudulently obtaining the unauthorized loans against the policy and in forging Ms. Crumpton’s endorsement on the checks were personal acts outside the scope of his employment with Modern Woodmen. Wittig, supra. Moreover, since there is no evidence that Modern Woodmen knew or should have known that Mr. Crumpton was likely to commit such acts, there is no basis for concluding that Modern Woodmen breached a duty to control the acts of its agent done outside the scope of employment. See Ihesiaba v. Pelletier, 214 Ga. App. 721, 725 (448 SE2d 920) (1994); Restatement 2d of Torts, § 317 (b) (ii). Accordingly, Modern Woodmen was not responsible for any alleged damages in tort over and above Ms. Crumpton’s contracted-far benefits under the insurance policy. It follows that Modern Woodmen was entitled to summary judgment on this issue in its declaratory judgment action and as to Ms. Crumpton’s counterclaims based on fraud, negligence and breach of fiduciary duty. Moreover, as to the breach of fiduciary duty claim, there was no confidential or fiduciary relationship between Ms. Crumpton and Modern Woodmen or its agent. State Farm &c. Co. v. Fordham, 148 Ga. App. 48, 51 (250 SE2d 843) (1978). Modern Woodmen was also entitled to summary judgment to the extent Ms. Crumpton sought punitive damages in conjunction with the tort claims and to the extent she sought attorney fees based on tort claims pursuant to OCGA § 13-6-11.

A different rule, however, applies to Ms. Crumpton’s action to the extent it seeks reimbursement based on breach of contract for the amount that her contracted-for benefits under the life insurance policy with Modern Woodmen were diminished by the unauthorized loans. “In an action on a contract of insurance, the insurance company is generally . . . estopped to deny liability on any matter arising out of the fraud, misconduct, or negligence of an agent of the company.” Stillson v. Prudential Ins. Co. &c., 202 Ga. 79, 82 (42 SE2d 121) (1947). Where an insurance company agent perpetrates a fraud upon both the insured and the insurance company, the insurance company cannot avoid its obligations under the contract of insurance by denying responsibility for fraudulent acts committed by its agent outside the scope of employment which altered the contract to the detriment of the insured. Id. at 83. In an action to enforce rights under the insurance contract, “the [insurance] company which made it possible in the first instance for the agent to perpetrate the fraud should suffer rather than the other innocent party.” Id.

Decided May 12, 1997

Reconsideration denied May 29, 1997.

Before Judge Whitmire, Senior Judge.

Chambers, Mabry, McClelland & Brooks, Robert M. Darroch, Richard H. Hill, Jr., for appellant.

Cashin, Morton & Mullins, Richard W. Gerakitis, Kara A. Davis, for appellee.

Accordingly, the trial court correctly denied Modern Woodmen’s motion for summary judgment to the extent this issue was presented under Ms. Crumpton’s breach of contract claim.

We find no basis, however, for the award of attorney fees pursuant to OCGA § 13-6-11 based on a claim that Modern Woodmen acted in bad faith or was stubbornly litigious in relation to the breach of contract claim. There is no evidence that Modern Woodmen acted in bad faith concerning the transaction or dealings out of which the cause of action arose. As to the issue of stubborn litigiousness, since there was a bona fide controversy concerning the punitive damages and tort claims pursued by Ms. Crumpton, there is no basis for the award of attorney fees on this ground. Ralston v. Etowah Bank, 207 Ga. App. 775, 778 (429 SE2d 102) (1993). Modern Woodmen was entitled to summary judgment as to Ms. Crumpton’s claim for attorney fees under the contract claim.

Judgment affirmed in part and reversed in part.

Beasley and Smith, JJ, concur.

       Modern Woodmen contends that Joel Crumpton acted as an independent contractor rather than its employee, as claimed by Ms. Crumpton. We need not resolve this issue. For purposes of this appeal from the denial of its motion for summary judgment, Modem Woodmen concedes that we should assume Mr. Crumpton acted as its employee agent. Since we find no evidence in the present record that Mr. Crumpton also acted as Ms. Crumpton’s agent, we need not address Modem Woodmen’s enumerations and arguments relating to dual agents.


text:
    A97A0143.
    SHARP v. VARNER.
    (486 SE2d 701)
   Smith, Judge.

In a prior appearance of this case, in which the facts are more fully set forth, we construed OCGA § 53-4-4 (c) (1) (E) and affirmed the probate court’s decision that Dorothy Varner proved by clear and convincing evidence that she was Ralph Sharp’s daughter. Varner v. Sharp, 219 Ga. App. 125, 127 (464 SE2d 388) (1995). We remanded that case to the probate court, however, for determination of whether Varner also proved by clear and convincing evidence that Ralph Sharp intended for her to inherit from his estate. Id. at 126-127. On remand, the probate court removed appellant, Sharp’s brother, as administrator of the estate, concluding that Varner showed by clear and convincing evidence Sharp’s intent that she inherit from his estate. The Court also concluded that Varner was Sharp’s sole heir. We affirm.

1. We find meritless appellant’s contention that the probate court failed to employ the clear and convincing standard of review as required by Varner v. Sharp, supra.

2. As for appellant’s primary contention that Varner did not prove by clear and convincing evidence that Sharp intended that she take from his estate, it was for the trier of fact, not this Court, to weigh the evidence. See generally Crotty v. Crotty, 219 Ga. App. 408, 411-412 (3) (465 SE2d 517) (1995); Arnold v. McKibbins, 210 Ga. App. 262, 264 (2) (435 SE2d 685) (1993).

Conflicting evidence of Sharp’s intent concerning distribution of his estate was presented. Also, Varner testified that she had no knowledge regarding how Sharp intended his estate to be distributed because there was no will. This evidence notwithstanding, other evidence was presented that Sharp intended that both appellant and Varner be provided for financially after his death. Although no will was located after his death, one witness testified that Sharp had stated several times that he had a will making provisions for appellant and Varner. Another witness, Sharp’s friend of several years, testified that Sharp loved appellant and Varner “dearly” and had told her that “if something ever happened to him,” both would “be all right.” When asked by appellant’s counsel to explain the meaning of Sharp’s statement that his brother and daughter would “be all right,” this witness replied, “It meant to me that they [were] going to be taken care of financially because I knew he had a lot of money.”

We agree with Varner that the probate court was authorized under the evidence presented to find clear and convincing proof of Sharp’s intent that Varner inherit from the estate. The testimony that Sharp loved both Varner and appellant and desired that both receive financial support upon his death reveals that intent. And contrary to appellant’s argument, the probate court was entitled to disregard the testimony of those witnesses claiming not to know of the relationship between Varner and Sharp. As noted above, it is solely for the trier of fact, here the probate court, to assess witness credibility. See, e.g., Crotty, supra, 219 Ga. App. at 412.

We note appellant’s argument that the evidence presented supported two different conclusions. He correctly points out that Varner’s name appeared on one of Ralph Sharp’s bank accounts. He maintains that the witness’s testimony concerning Sharp’s intentions toward both Varner and appellant could mean that he intended Varner to inherit but “could also mean that [he] intended to take care of . . . [Varner] by providing her money from the one joint account with her name on it.” According to appellant, this testimony cannot constitute clear and convincing evidence because it supports at least two different conclusions. This argument is unconvincing. The clear and convincing standard is not defined as a standard eliminating all possible conclusions except one. “ ‘[C]lear and convincing evidence’ is an intermediate standard of proof, greater than ‘the preponderance of evidence,’ but less than the “beyond a reasonable doubt’ standard applicable in criminal cases.” Clarke v. Cotton, 263 Ga. 861 (440 SE2d 165) (1994). See also In the Interest of T. B. R., 224 Ga. App. 470, 472 (480 SE2d 901) (1997).

Appellant’s argument also ignores the fact that his name, but not Varner’s, appeared on three other bank accounts held by Sharp and that he was listed as the primary beneficiary on Sharp’s three life insurance policies. This evidence authorized the probate court to conclude that Sharp intended to provide for both appellant and Varner — Varner via the estate and appellant via those accounts and policies held by him that were not part of the estate. See generally OCGA § 7-1-813 (a); Godwin v. Johnson, 197 Ga. App. 829, 830 (1) (399 SE2d 581) (1990) (sums remaining on deposit at death of party to joint account belong to surviving party, not estate of decedent, unless there is clear and convincing evidence of different intent when account is created); King v. Travelers Ins. Co., 202 Ga. App. 568, 569 (415 SE2d 176) (1992) (life insurance proceeds vest in named beneficiary and are not part of estate).

Finally, we note that In re Estate of Burton, 265 Ga. 122 (453 SE2d 16) (1995), relied upon by appellant, does not require a different result. Appellant is correct that the standard of proof applicable in that case also applies to the issue here. According to OCGA § 53-4-4 (c) (1) (E), both the fact “that the child is the child of the father” and the fact “that the father intended for the child to share in the father’s intestate estate” must be proved by “clear and convincing evidence.” The Supreme Court acknowledged this in Burton, supra at 123, even though that case decided only the evidentiary issue with respect to the first requisite fact.

Judgment affirmed.

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

Decided May 15, 1997

Reconsideration denied May 29, 1997

Before Judge Guess.

Garland B. Cook, Garland B. Cook, Jr., for appellant.

Lynch, Spears & Shuman, John W. Spears, Jr., Kraus & Merck, Ralph E. Merck, for appellee.

       OCGA § 53-4-4 (c) (1) (E) provides that a child born out of wedlock may inherit from the father’s estate if “[t]here is clear and convincing evidence that the child is the child of the father and that the father intended for the child to share in the father’s intestate estate in the same manner in which the child would have shared if legitimate.”

       Appellant also fails to mention that he was successful in having Varner’s name removed from a joint bank account following Sharp’s death.


author: Judge Harold R. Banke.

text:
    A97A0195.
    HIRJEE v. THE STATE.
    (487 SE2d 40)
   Judge Harold R. Banke.

After a bench trial, Fida R. Hirjee was convicted of driving with a suspended license, concealing the identity of a motor vehicle, no proof of insurance, no tag, and failure to use headlights. In his pro se appeal, he enumerates five errors, all related to the failure to use headlights charge.

After pronouncing the verdict, the trial court sentenced Hirjee on each count except the headlights charge. The court subsequently discovered this inadvertent omission at the hearing on Hirjee’s motion for new trial. On July 22, 1996, six days after denying the motion, it imposed sentence on the headlights charge, a $100 fine which was suspended on the condition that Hirjee not violate State law. Held:

1. The trial court did not err by failing to refer to Hirjee’s motion for new trial in its July 22, 1996 order. Hirjee has cited no authority for his proposition that reference to the earlier order was mandatory and we know of none. See Court of Appeals Rule 27 (c) (2).

2. We reject Hirjee’s contention that the trial court erred by imposing sentence on the headlights charge after discovering its initial failure to sentence him on that charge. The record shows that Hirjee was adjudicated guilty on all counts at the trial’s conclusion. Shortly after the trial court denied the motion for new trial, it imposed sentence on the headlights count. Under these circumstances, the trial court retained authority to correct its oversight and impose the sentence. See OCGA § 17-10-3 (b); see also State v. Bradbury, 167 Ga. App. 390, 392 (4) (306 SE2d 346) (1983) (filing of motion for new trial extends power to address sentence).

3. The record simply does not support Hirjee’s assertion that the trial court converted the motion for new trial hearing into a second trial in which he was subjected to double jeopardy. The record shows that he was adjudicated guilty once at his only trial. Thus, the prohibition against successive prosecutions barred by double jeopardy was not triggered here. OCGA § 16-1-8.

Decided May 7, 1997

Reconsideration denied and dismissed May 29, 1997.

Before Judge Benefield.

Fida R. Hirjee, pro se.

Keith C. Martin, Solicitor, for appellee.

4. Hirjee correctly argues that the trial court was required to set a duration on the condition imposed in his sentence on the headlights charge. “A trial court is authorized, in its discretion, to probate or suspend criminal sentences. However, ‘[t]he period of probation or suspension shall not exceed the maximum sentence of confinement which could be imposed on the defendant, except as provided in subsection (d) of this Code section.’. . . OCGA § 42-8-34 (c).” (Emphasis omitted.) Acker v. State, 184 Ga. App. 321 (361 SE2d 509) (1987). The maximum term of punishment for driving without headlights, a misdemeanor, may not exceed 12 months. OCGA §§ 17-10-3 (a); 40-8-7 (c); 40-8-20. We also observe that the record contains no final disposition forms as suggested by Uniform State Court Rule 39.7, SC-6. Accordingly, we remand for sentencing consistent with this opinion and as provided by law. See Paul v. State, 170 Ga. App. 746 (3) (318 SE2d 200) (1984) (oral declarations of sentences are ineffective).

Because Hirjee failed to support his remaining enumeration, asserting that the trial court erred in issuing multiple orders relating to the same issue, it is deemed abandoned. See Court of Appeals Rule 27 (c) (2). We lack jurisdiction to reach the additional “questions” Hirjee poses in his brief which were not enumerated as error. Talley v. State, 164 Ga. App. 150, 152 (6) (296 SE2d 173) (1982); see Burton v. State, 212 Ga. App. 100, 101 (1) (441 SE2d 470) (1994).

Judgment affirmed.

Sentence vacated and case remanded for resentencing. Pope, P. J., and Blackburn, J., concur.


text:
    A97A0436.
    RUSSELL v. THE STATE.
    (486 SE2d 704)
   Smith, Judge.

Earnest Ronald Russell was indicted on two counts of selling heroin, OCGA § 16-13-30 (b). A jury found him guilty of one count and not guilty of the other. Russell’s motion for new trial was denied, and he filed this appeal.

1. Russell enumerates the general grounds. Construed to support the verdict, the evidence presented at trial showed that agents from the U. S. Drug Enforcement Agency, the Chatham-Savannah Counter Narcotics Team, and the Bureau of Alcohol, Tobacco & Firearms conducted a joint investigation of a heroin distribution ring operating in Savannah. As part of that investigation, a controlled purchase of heroin was arranged.

The person making the controlled purchase was a heroin user who was cooperating with the law enforcement agents, having been arrested himself but not yet tried or sentenced for possessing heroin. This individual identified Russell as one of the persons from whom he had bought heroin in the past. At the instance of Agent Robert Schafer, a Savannah police officer assigned to the counter narcotics team, he agreed to make a purchase from Russell with government funds while wearing a recording device.

The informant telephoned Russell from the counter narcotics team’s office to arrange the purchase. After being searched and “wired,” the informant rode with Schafer in the informant’s truck to Russell’s home. Russell met them outside, and the informant introduced Schafer as his “cousin.” The informant left the truck and walked around it to the rear quarter panel, where the deal was consummated. The informant then immediately turned over to Schafer the two foil packets he purchased. They returned to the counter narcotics team office, where the informant was again searched. Both the informant and Schafer identified Russell in court as the person from whom he had made the purchase. The tape recordings of the telephone call and the purchase were played for the jury.

A forensic chemist from the DEA testified that she analyzed the contents of the foil packets and that they contained heroin hydrochloride.

Russell argues that the informant’s testimony was not credible because Schafer instructed him that it was permissible to lie. But an appellate court does not determine the credibility of witnesses; that issue is reserved for the jury. Kegler v. State, 267 Ga. 147, 148 (1) (475 SE2d 593) (1996).

Russell also argues that the informant’s testimony was unreliable because his cooperation was based upon a desire to obtain more favorable consideration of the charges pending against him. This argument goes to the weight to be given the informant’s testimony, however, which was also for the jury, and not this court, to evaluate. Smith v. State, 222 Ga. App. 887 (1) (476 SE2d 653) (1996).

The informant’s situation was completely revealed to the jury, and both he and Agent Schafer testified that favorable treatment was not promised to him. Indeed, Schafer testified that he was not present at the informant’s plea hearing. He testified that he did advise a district attorney of the informant’s cooperation; he also informed the district attorney, however, that the informant violated their agreement by again purchasing heroin for himself after the controlled buy and that he arrested the informant for that purchase.

Decided May 15, 1997

Reconsideration denied May 29, 1997

Before Judge Karpf.

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, George R. Asinc, Assistant District Attorney, for appellee.

Finally, regardless of the reasons for the informant’s cooperation, the tape recordings clearly demonstrated that Russell sold heroin. The evidence was more than sufficient to support Russell’s conviction for selling heroin under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Russell moved twice for a mistrial after a law enforcement agent and a paid informer mentioned their belief that he was involved with a particular heroin distribution ring under investigation. The trial court denied the motion both times. Russell contends on appeal that this was reversible error. We do not agree.

First, this testimony was given in regard to the count on which Russell was acquitted. If error, it was therefore harmless. Second, even assuming harm, this testimony did not improperly place Russell’s character in issue, as urged by Russell. It merely revealed a belief held by law enforcement officers, which explained their motivation for setting up the controlled buy from Russell. This Court has held that similar statements, which did not reveal the reason for the belief that the defendant was involved in drug distribution, did not place the defendant’s character in issue. See, e.g., Guyton v. State, 206 Ga. App. 145, 146 (3) (424 SE2d 87) (1992) (testimony that agents went into area where they knew people were trafficking drugs and targeted numerous individuals, including defendant).

Finally, not all evidence that may incidentally place a defendant’s character in issue is necessarily inadmissible. Rhodes v. State, 200 Ga. App. 193, 197 (5) (407 SE2d 442) (1991). Even assuming the testimony placed Russell’s character in issue, it was relevant and material. We find no reversible error.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A97A0514.
    KING v. THE STATE.
    (486 SE2d 904)
   McMurray, Presiding Judge.

Defendant Thelma Deloise King was charged in Accusation No. 96CR08533 with operating a motor vehicle “while her driver’s license as issued by the [Georgia] Department of Public Safety . . . was in suspension,” and further charged in Accusation No. 96CR08534 with giving “a false name and false date of birth to a law enforcement officer in the lawful discharge of his duties with the intent of misleading him as to her identity.” At her arraignment and without the benefit of counsel, defendant entered written non-negotiated guilty pleas. There is no transcript of that guilty plea hearing, although there is a detailed form containing defendant’s separate plea statement as to each charge and the trial court’s acceptance of the pleas, which we quote at length:

“[X] I hereby enter my plea of [GUILTY]... to this offense[, i.e., LICENSE — DRIVING SUSP/REV and GIVING A FALSE NAME], I understand that I may plead not guilty to any charges against me. If I plead not guilty, the law gives me (1) the right to a speedy and public jury trial; (2) the right to see, hear and cross-examine all witnesses called against me; (3) the right to use the power of the court to subpoena witnesses and evidence to be used to defend me; (4) the right to have a lawyer to assist me at all stages of the proceedings; (5) that I do not have to testify or produce evidence against myself; (6) that I have the right to have the State prove my guilt beyond a reasonable doubt, and until that is done, I am presumed innocent. I understand that if I cannot afford to hire an attorney, that the Court may appoint an attorney to represent me without cost to me.

“I understand that the law provides that a sentence could be imposed that could include 12 month’s imprisonment and a fine of up to $5,000.00. I also understand that by entering a plea of guilty or nolo contendere, the Court may sentence me as if I had stood trial and been [found guilty] by a jury. I understand that the Court may make my sentences run consecutively, that is, one after the other.

“[X] I understand that a lawyer may be able to discover a defense to the charge(s) pending against me, or could offer evidence which may aid insofar as sentencing is concerned. Nevertheless, I have read the accusation against me, understand the nature of the charges against me and the consequences of my plea, and I freely and voluntarily waive my right to counsel.

“My date of birth is 9-30-59 and I have 12 years of education.

“No one has made any promise of any kind to me, or within my knowledge, to anyone else that I will receive a lesser sentence or probation, or any form of leniency if I enter this plea. I am not under the influence of drugs or intoxicants of any kind. I understand that the Judge is not bound by any recommendation or negotiations. The Judge may impose a lesser sentence, a greater sentence, or may accept the recommendation.

“I am entering this plea freely and voluntarily, of my own accord, and with full understanding of all the matters set out in the accusation and in this plea statement, and this plea is done with the advice of and consent of counsel, if any.

“I have read and understand the above plea statement. I am signing this plea statement in the presence of the Court.”

This document was signed on July 9, 1996, by “Thelma King, Defendant” and indicates that it represents a “[X] Non-negotiated Plea.” At the foot of the document is a portion captioned “ACCEPTANCE OF PLEA,” which recites: “The above statement having been made by the Defendant in the presence of the Court, the foregoing rights afforded the Defendant having been personally read to the Defendant by the Court, the Court being satisfied that the defendant understands all rights applicable to him/her, all the consequences of his plea, that the plea is entered knowingly, freely and voluntarily, and there having been a sufficient factual basis shown for the acceptance of this plea, IT IS HEREBY ORDERED that defendant’s plea be accepted.” (Emphasis by hand in original.) This is signed by the Judge of the State Court of Clayton County, Georgia, on July 9, 1996.

At the bottom of defendant’s plea statement for Accusation No. 96CR08533 (driving while license suspended), under the portion captioned ACCEPTANCE OF PLEA appears the handwritten notation “Suspended for no ins. & VGCSA. . . .” At the bottom of Accusation No. 96CR08534 (giving a false name) appears the handwritten notation “Used false name on tickets in ’92 — had purse lost in 91 of victim. . . .”

For giving a false name and date of birth to a law enforcement officer, defendant was not fined but sentenced to 12 months confinement. For driving while her license was in suspension, defendant was fined $500 plus $50 court costs, and ordered to serve six months consecutive to Accusation No. 96CR08534, provided that the additional six months confinement would be probated upon payment of the fine and costs.

The next day, with the assistance of counsel, defendant moved to withdraw her guilty pleas, contending that they were not free and voluntary. At a hearing, defendant testified that she did not personally make the check marks on the forms for entering her guilty pleas, whereupon the State’s Attorney stipulated “I did that. It’s my handwriting.” It was further stipulated that the State’s Attorney “did not make a plea recommendation to her [defendant], nor did she [defendant] ask for one.” Defendant could not remember everything that occurred at her arraignment, and she denied the State’s attorney “explained] this document, this form [plea statement], to [her].” Defendant also claimed she “didn’t understand it[,]” when the State’s Attorney informed defendant that she [defendant] was signing a statement of her rights that the Judge would go over with her in a minute. Defendant thinks she has a problem with her hearing.

On cross-examination, defendant testified that she either did not hear or did not understand when the trial court made its own inquiry of defendant’s understanding of the rights she was waiving by pleading guilty. Defendant did affirm, however, that “the only time [she] asked for an attorney was after sentence had been pronounced, [i.e.,] after the Judge told [defendant] that [she was] going to jail.” For the record, the trial court stated: “The Court did not just sign that document, just blindly sign the document. The Court, in fact, did go through each and every portion of this plea statement with [defendant].”

The trial court further recited: “A factual basis was provided to the Court, as indicated on the plea statement. For the suspended license, the factual basis apparently was that her license had been suspended for . . . no insurance and a V.G.C.S.A. conviction prior to the date that she received these tickets. . . . Also on the giving a false name, the factual basis was that when she received tickets on December 29th of 1992, she used the name of another person whose identification she had in her possession, that she went all the way through the court process in 1992 using that person’s name — the name was Jacqueline Rogers — that that person eventually found out that her license had been suspended because [defendant] had used her name on the charges that she pled guilty to in 1992 using Ms. Rogers name, and that that is how these new charges were drawn, because it came to the Solicitor’s attention that [defendant] was not Ms. Rogers in 1992 when she used that name, that Ms. Rogers’ pocketbook had been lost in 1991; and somehow apparently [defendant] came into possession of her identification and was using it in ’92 at the time that she used the false name, not only to the officer on the tickets, but all the way through the court process. So that factual basis was provided by the Solicitor in the hearing of [defendant].”

Defendant’s motion to withdraw her guilty pleas was denied and this appeal followed. In four related enumerations, defendant contends her guilty pleas are invalid. Held:

1. Due process of law requires “that there be a record of the guilty plea hearing adequate for the reviewing court to determine whether (1) the defendant has freely and voluntarily entered the plea with (2) an understanding of the nature of the charges against him and (3) an understanding of the consequences of his plea.” Goodman v. Davis, 249 Ga. 11, 13 (287 SE2d 26). “After a prisoner raises the question of the validity of his plea of guilty, the burden is on the [S]tate to show that the plea was intelligently and voluntarily entered. The [S]tate may accomplish this end by two means, (1) showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea; or (2) fill a silent record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary.” Roberts v. Greenway, 233 Ga. 473, 475 (1) (211 SE2d 764). Uniform State Court Rule 33.11 specifies: “A record of the proceedings at which a defendant enters a plea of guilty or nolo contendere shall be made and preserved. The record should include: (A) the inquiry into the voluntariness of the'plea (as required by section 33.7); (B) the advice to the defendant (as required in section 33.8); (C) the inquiry into the accuracy of the plea (as required by section 33.9); and, if applicable; (D) the notice to the defendant that the trial court intends to reject the plea agreement and the defendant’s right to withdraw the guilty plea before sentence is pronounced.” Although no enumeration of error is predicated upon the circumstance that the assistant solicitor and not the defendant herself made the check marks on the plea statements, the better practice would be for the accused herself to check or initial each statement, indicating an intent to adopt the pre-printed form statement by statement.

2. Defendant contends her guilty pleas were not free and voluntary. She argues there is no evidence the essential elements of the misdemeanor offenses charged were ever explained to her, relying on Breland v. Smith, 247 Ga. 690 (279 SE2d 204) and Henderson v. Morgan, 426 U. S. 637 (96 SC 2253, 49 LE2d 108). In each of these cases, the record failed to indicate that the accused was informed of the material element of criminal intent.

“In Henderson v. Morgan, 426 U. S. 637[, supra], the defendant was indicted for first-degree murder and pleaded guilty to second-degree murder. On habeas corpus his New York guilty plea was vacated as being involuntary because he had not been advised that intent to cause death was an essential element of second-degree murder. The Supreme Court [of the United States] affirmed, holding that where the record fails to show that the essential element of intent in the lesser-included offense was explained to the defendant, the guilty plea was involuntary and lacked the due process requirement of notice.” Breland v. Smith, 247 Ga. 690, 691 (2), supra. In Breland, that defendant’s guilty plea to theft by receiving was based on an indictment charging him with burglary. The Supreme Court of Georgia reversed the denial of habeas corpus because “the record fail[ed] to show that the elements of the crime to which the defendant pleaded guilty were explained to him. Breland v. Smith, 247 Ga. 690, 692, supra.

(a) These authorities are not directly applicable to defendant’s situation, in that she did not enter a guilty plea to any lesser included offense to an indicted felony. But we agree that an accused must be apprised of the elements of each misdemeanor offense and the facts supporting the charge.

In our view, driving with a suspended license after proper notification from the Department of Public Safety, in violation of OCGA § 40-5-121 (a), is proscribed by that class of certain “strict criminal liability” motor vehicle safety statutes, which can be violated and enforced without a showing of mens rea or guilty intent on the part of the violator. “With strict criminal liability statutes, ‘although it must be shown that the defendant committed the acts or omissions for which he is being held responsible, the requirement of proving mental fault or mens rea is dispensed with.’ Davis v. Peachtree City, 251 Ga. 219, 220, n. 1 (304 SE2d 701).” Queen v. State, 189 Ga. App. 161, 163 (1) (c) (375 SE2d 287). Accord Hoffer v. State, 192 Ga. App. 378, 379 (1), 380 (384 SE2d 902). As there is no element of criminal intent in a violation of OCGA § 40-5-121 (a) for the trial court to explain to defendant in order to make her guilty plea to that offense free and voluntary, defendant’s reliance upon Breland v. Smith, 247 Ga. 690, 691, supra, in this regard is misplaced.

As to the material element of notice that her driver’s license was suspended, the post-plea hearing transcript indicates that the trial court was provided with “a certified copy of the defendant’s driving history, which shows for [sic] suspensions that she has, which some are by operation of law, some require notice.” Specifically, defendant’s driver’s license was suspended on April 7, 1986, after she deposited her “LICENSE AS BAIL,” to a speeding citation; suspended again on January 30, 1989, for “NO PROOF OF INSURANCE”; suspended again on July 18, 1989, for “NO INSURANCE”; suspended again on March 8, 1990, for “FAILURE TO APPEAR”; and most recently, suspended on September 8,1992, for “CONTROLLED SUBSTANCE — FIRST [VIOLATION].” She was eligible for reinstatement of her license no sooner than March 30, 1994.

In our view, the proffer in open court of defendant’s record of previous convictions coupled with her sworn statement that she had read the accusation and understood the nature of the charges against her, was sufficient to establish her knowledge that her Georgia driver’s license had been suspended and that she was not authorized to operate a motor vehicle in Georgia at the time in question. “Any resident . . . whose driver’s license . . . has been suspended or revoked as provided in this chapter shall not operate a motor vehicle in this state under a license or permit issued by any other jurisdiction or otherwise during such suspension or after such revocation until the license is restored when and as permitted under this chapter” (Emphasis supplied.) OCGA § 40-5-65. “(I)t may be said that [defendant] did not intend to violate the law, and did not know that [s]he was doing so. The reply is that (OCGA § 1-3-6) declares that “Laws after promulgation are obligatory upon all inhabitants of this state, and ignorance of the law excuses no one.” ’ Gurley v. State, 65 Ga. 157, 158 (1880).” Payne v. State, 209 Ga. App. 780, 782 (1) (434 SE2d 543).

(b) The record of the guilty plea recites that defendant read the accusation against her. Accusation No. 96CR08534 alleges that defendant “did give false information, to wit: Jacqueline Rogers, dob 6/2/59, a false name and false date of birth, to a law enforcement officer in the lawful discharge of his duties with the intent of misleading him as to her identity.” (Emphasis supplied.) The record of this guilty plea affirmatively shows that defendant was apprised of the material elements constituting misdemeanor obstructing or hindering a law enforcement officer in violation of OCGA § 16-10-24 (a). Consequently, this enumeration is without merit.

3. Defendant next contends the trial court failed to make an inquiry on the record as to any factual basis for defendant’s plea, as required by Uniform Superior Court Rule 33.9, applicable in the State Court of Clayton County. We agree with defendant that, standing alone, the valid and probing pre-printed plea petition is not sufficient to elicit a sufficient factual basis for a guilty plea to any particular charge. See Green v. State, 265 Ga. 263, 264 (2) (454 SE2d 466). Similarly, a trial court’s summary and conclusory statement that a factual basis exists, without specifying any of the facts underlying the charge, also is deficient. Wharton v. Henry, 266 Ga. 557, 558 (1) (469 SE2d 27). But scrutiny of the record of the guilty plea, as supplemented by the transcript of the hearing on defendant’s motion to withdraw her guilty pleas, clearly indicates the trial court in the case sub judice was informed of the factual basis for these two charges. See King v. Hawkins, 266 Ga. 655, 656 (469 SE2d 30).

(a) Specifically, the acceptance of defendant’s guilty plea to Accusation No. 96CR08533 (driving with a suspended license) contains the trial court’s annotation: “Suspended for no ins. & VGCSA.” Each of those circumstances would authorize the suspension of defendant’s Georgia driver’s license. See OCGA §§ 40-5-71 (c) (3) and 40-5-75 (a). Consequently, the guilty plea record itself adequately establishes a factual basis for accepting defendant’s guilty plea to driving with a suspended license.

(b) The acceptance of defendant’s guilty plea to Accusation No. 96CR08534 (giving a false name) contains the trial court’s annotation: “Used false name on tickets in ’92 — had purse lost in 91 of victim.” Any ambiguity in this reference was clarified by the extrinsic evidence adduced at the hearing on defendant’s motion to withdraw her guilty pleas.

There, the trial court explained that when defendant “received tickets on December 29th of 1992, she used the name of another person whose identification she had in her possession, that she went all the way through the court process in 1992 using that person’s name — the name was Jacqueline Rogers — that that person eventually found out that her license had been suspended because [defendant] had used her name on the charges she pled guilty to in 1992 using Ms. Rogers name, and that that is how these new charges were drawn, because it came to the Solicitor’s attention that [defendant] was not Ms. Rogers in 1992 when she used that name, that Ms. Rogers’ pocketbook had been lost in 1991; and somehow apparently [defendant] came into possession of her identification and was using it in ’92 at the time that she used the false name, not only to the officer on the tickets, but all the way through the court process. So that factual basis was provided by the Solicitor in the hearing of [defendant].” In our view, this is an adequate factual basis for accepting defendant’s guilty plea to giving a false name, constituting the misdemeanor offense of hindering or obstructing a law enforcement officer as charged in Accusation No. 96CR08534.

4. Next, defendant contends her waiver of the right to counsel was not free and voluntary, arguing that she was subjected to a “mass arraignment,” and that “the record is devoid of evidence that [Defendant] was personally advised of her right to counsel.” This is contradicted by the written plea statement.

There, defendant asserted in open court that she understood her rights as enumerated in the form plea statement, including “the right to have an attorney to assist [her] at all stages of the proceedings”; and the right to appointed counsel. Defendant also “understood] that a lawyer may be able to discover a defense to the charge(s) pending against [defendant], or could offer evidence which may aid insofar as sentencing is concerned. Nevertheless, [defendant had] read the accusation[s] against [her], understood] the nature of the charges against [her] and the consequences of [her] plea, and [she] freely and voluntarily waivefd] [her] right to counsel.” The “foregoing rights [as itemized in Uniform Superior Court Rule 33.8] [were] personally read to the Defendant by the Court, [who was] satisfied that the Defendant understood] all rights applicable to him/her. . . .”

Decided May 9, 1997

Reconsideration denied May 29, 1997

Before Judge Cowen.

Dwight L. Thomas, for appellant.

Defendant misreads this Court’s decisions in Washington v. City of Atlanta, 201 Ga. App. 876 (412 SE2d 624) and Jones v. State, 212 Ga. App. 676 (442 SE2d 908). Those cases do not hold that a “mass arraignment” is impermissible. Rather, they hold that a “mass arraignment,” even where the defendant is provided a copy of a two-page document entitled “In-Court Rules and Procedure,” is insufficient by itself to fulfill the trial court’s responsibility to make a personal inquiry and determine that a proposed guilty plea by one who is unrepresented by counsel is in fact knowingly and voluntarily made, upon an appreciation of the nature of the charges and the consequences of the guilty plea. Jones v. State, 212 Ga. App. 676, 678 (1), 679, supra. In the case sub judice, each guilty plea statement indicates that the trial court “personally read” defendant her rights, including the right to counsel. Each plea further recites that defendant “freely and voluntarily waive[d] [her] right to counsel”; that she had read the accusation and the plea statement; and that the trial court was “satisfied that the Defendant understands all [her] rights. . . .” We hold the record of these guilty pleas is adequate for an appellate court to affirm the trial court’s determination, i.e., that defendant’s waiver of the right to counsel was knowingly and intelligently made as part of a free and voluntary guilty plea.

5. Defendant’s final objection is that the record of her guilty pleas is inadequate “inasmuch as a verbatim record of the proceedings was not made. . . .” This argument is wholly without merit. It is the rule in the superior courts that a verbatim transcript of guilty plea proceedings be preserved but this requirement is not applicable in the state courts. Compare Uniform Superior Court Rule 33.11 with Uniform State Court Rule 33.11. The record of the guilty pleas as memorialized in the valid and probing plea statements and the trial court’s documented acceptance of those pleas complies fully with the requirements of Uniform State Court Rule 33.11 and also with the requirements of due process. Romano v. State, 220 Ga. App. 322, 323 (3), 324 (469 SE2d 726). Compare Hamm v. State, 123 Ga. App. 10 (179 SE2d 272), where “[n]o record was made of what, if anything, transpired between the court and [that] defendant or his counsel when the pleas were entered.”

Judgment affirmed.

Beasley and Smith, JJ., concur.

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

       Certain matters in the form order regarding the assistance of counsel and defendant’s satisfaction with that assistance are not applicable to the case sub judiee.

       The better practice would be to specify, where applicable, that a misdemeanor sentence could be 12 months imprisonment and $5,000 fine for each offense.

       That certified copy of defendant’s driving history was not made an exhibit to the guilty plea statement or otherwise made a part of the record in the trial court. Despite the attendant delay in appellate consideration of this case, we have ordered that defendant’s driving record be made a part of the record on appeal, by certified supplemental record. Henceforth, any such driving record or other exhibit proffered to the Court during a guilty plea hearing should be made a part of the record in the trial court.


text:
    A97A0804.
    PHOEBE PUTNEY MEMORIAL HOSPITAL v. SKIPPER.
    (487 SE2d 1)
   Smith, Judge.

We granted the application for interlocutory appeal filed by Phoebe Putney Memorial Hospital (“the hospital”) to consider whether Inez Skipper filed a valid professional malpractice affidavit within the applicable statute of limitation. We conclude that Skipper’s original affidavit was invalid and that her amended affidavit did not satisfy the requirements of OCGA § 9-11-9.1. We therefore reverse the trial court’s denial of the hospital’s motion to dismiss.

The facts relative to the issue are not in dispute. Skipper filed a medical malpractice action against the hospital on May 10, 1995. She alleged that the statute of limitation would expire within ten days of the filing, that because of time constraints, an expert affidavit could not be prepared prior to filing, and that an affidavit would be filed within 45 days. See OCGA § 9-11-9.1 (b). On June 12, 1995, a document purporting to be an affidavit sworn to by William I. Capps, M.D. was filed. The hospital answered, raising as a defense the failure to comply with OCGA § 9-11-9.1. Although the affidavit is notarized, it is not disputed that Capps did not sign it in the presence of a notary public. After learning from Dr. Capps during his deposition that he did not sign the affidavit in a notary’s presence, the hospital filed a motion to dismiss for failure to file a valid affidavit. In response, Skipper did not seek an extension of time for filing a supplemental affidavit, nor did the court grant one sua sponte. Instead, she filed an amended affidavit on July 24, 1996; it purportedly was signed by Dr. Capps in the presence of a notary public. The trial court denied the motion to dismiss without explanation.

The original affidavit was invalid. “In the absence of a valid jurat, a writing in the form of an affidavit has no force, no validity, amounts to nothing, when standing alone, or when construed in connection with other evidence. ... In order to make an affidavit there must be present the officer, the affiant, and the paper, and there must be something done which amounts to the administration of an oath.” (Citations and punctuation omitted.) Harvey v. Kidney Center of Central Ga., 213 Ga. App. 319, 320 (444 SE2d 590) (1994).

Although the hospital raised as a defense the failure to comply with the affidavit requirement, Skipper argues that the “paramount question” is whether the hospital waived the particular defect in the original “affidavit” by not raising it in its initial pleading. This argument blatantly ignores the fact that her counsel submitted a facially proper document to the court and to the hospital, knowing that it would not be deemed properly executed were the truth known. It was held out to be a sworn statement of the doctor, given under oath and subscribed in the presence of a notary and thus meeting the requirements of an affidavit. See, e.g., Harvey, supra at 320. Such documentary evidence is a crucial prerequisite to a professional malpractice suit, legislatively mandated to preclude frivolous lawsuits.

The hospital, and the trial court, would assume when looking at the affidavit that it was proper. Unless they were to assume impropriety instead, it would only be happenstance for the hospital to have the opportunity to discover the circumstances of the affidavit preparation before it deposed the affiant. Even then, Dr. Capps affirmatively answered the question whether he signed in the presence of a notary public. Had the hospital’s counsel not persisted and pursued discovery of the signing process beyond this point, the invalidity of the original affidavit would not have been revealed. It is undisputed that plaintiff’s counsel took the proposed affidavit to the doctor, had him sign it without a notary being present, and then returned it to his own office where it was signed and stamped by the notary despite its departure from the truth. When the answer was filed, Dr. Capps had not yet revealed that a notary was not present when he signed the affidavit. The hospital filed its motion to dismiss only eight days after Dr. Capps’s deposition, in which he acknowledged that the notary was not present. Skipper’s argument has no merit.

Because the purported affidavit was invalid when filed, the document was tantamount to no affidavit having been filed. Even when the first document is ignored, the second affidavit was not filed within the 45-day grace period but rather over one year beyond the expiration of that period. It could not constitute the supplement to the pleading allowed by OCGA § 9-11-9.1 (b), which permits the trial court to extend the 45-day grace period “as it shall determine justice requires.” Justice, however, requires truth, not subterfuge. And the truth is that Skipper’s counsel failed to seek an extension of the 45-day grace period and also submitted a facially valid affidavit despite the fact that it was invalid. Under these circumstances, Skipper was not entitled to amend her complaint after the expiration of the grace period under OCGA § 9-11-9.1 (e). The trial court erred in denying the hospital’s motion to dismiss.

Judgment reversed.

Beasley, J., concurs. McMurray, P. J., concurs in the judgment only.

Decided April 16, 1997

Reconsideration denied May 29, 1997

Before Judge Phipps.

Langley & Lee, C. Richard Langley, Carl G. Fulp III, for appellant.

Farkas & Ledford, Leonard Farkas, Thomas G. Ledford, Diane L. Perry, David E. Perry, for appellee.


author: Birdsong, Presiding Judge.

text:
    A95A1842.
    HINTON v. INTERSTATE GUARANTY INSURANCE COMPANY.
    (487 SE2d 534)
    Decided May 29, 1997.
    Before Judge Martin.

      Howard E. Spiva, Cecil C. Davis, for appellant.

      Chambers, Mabry, McClelland & Brooks, Clyde E. Rickard III, for appellee.
   Birdsong, Presiding Judge.

The Supreme Court granted certiorari to Hinton v. Interstate Guaranty Ins. Co., 220 Ga. App. 699 (470 SE2d 292), wherein we held that, under the present statutory scheme, a farm tractor is not a motor vehicle for the purpose of determining what is an “uninsured motor vehicle.”

The Supreme Court in Hinton v. Interstate Guaranty Ins. Co., 267 Ga. 516 (480 SE2d 842) held that OCGA § 33-34-2 (1), which defines “motor vehicle” as a vehicle “having more than three load-bearing wheels” (emphasis supplied) is “too restrictive” because farm tractors may have less than three load-bearing wheels, and that farm tractors which are “driven on the public roads in the same manner as a vehicle that is designed for that use” should be covered by insurance. Hinton 267 Ga. at 518.

Our decision therefore stands reversed, and the judgment of the trial court is reversed, and the trial court is directed to enter judgment not inconsistent with the Supreme Court’s decision in the case.

Judgment reversed.

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


text:
    A97A0061.
    BRAGG et al. v. STATE OF GEORGIA.
    (487 SE2d 137)
   Smith, Judge.

Tom and Elizabeth Bragg, maternal grandparents of a minor child, appeal the order of the Thomas County Superior Court denying their petition for adoption. Appellants’ daughter and her former husband, the natural parents of the child, surrendered their parental rights in the child to appellants for the purpose of enabling appellants to adopt the child. The trial court appointed a guardian ad litem for the child, and the guardian ad litem filed a brief as appellee here. After hearing testimony presented by appellants and by the guardian ad litem, the trial court denied the petition, concluding that adoption would not be in the best interest of the child.

1. Appellants, while filing eight enumerations of error, have failed to comply with several of this Court’s rules: Court of Appeals Rule 27 (a) (1), requiring a statement of the preservation of each enumeration of error; Rule 27 (c) (1), requiring that the sequence of argument follow the order of the enumerations of error and be numbered accordingly; and Rule 27 (c) (3) (i), requiring that each enumeration of error be supported by specific record references. Appellee correctly notes that appellants’ counsel filed a similarly nonconforming brief in another appeal. Glisson v. Morton, 203 Ga. App. 77 (416 SE2d 134) (1992). That brief was held “barely sufficient” for its arguments to be considered by this Court. Id. It, however, addressed only one enumeration of error, while the four-page argument in this brief purports to discuss eight.

“Any enumeration of error which is not supported in the brief by citation of authority or argument shall be deemed abandoned.” Court of Appeals Rule 27 (c) (2). “It is basic appellate practice that error argued in the brief but not enumerated as error will not be considered on appeal, and error enumerated but neither argued in the brief nor supported by citation of authority is considered abandoned. Further, where the objection urged below is not argued here it must be treated as abandoned, and where an entirely different basis of objection is argued on appeal which was not presented at trial, we will not consider this as error, for we are limited on appeal to those grounds presented to and ruled upon by the trial court and then enumerated as error.” (Citations omitted.) Ehlers v. Schwall & Heuett, 177 Ga. App. 548, 550 (340 SE2d 207) (1986). Nevertheless, because of the great importance of the parent-child relationship and the issue of adoption, we will attempt to reach the merits of this appeal insofar as appellants’ arguments can be discerned.

2. In multiple enumerations of error, appellants appear to assert the general grounds. We note that when there has been a surrender of parental rights prior to the institution of adoption proceedings, the judgment of the trial court will not be set aside by this Court if that judgment is supported by any evidence and is not clearly erroneous. Lee v. Stringer, 212 Ga. App. 401, 403 (3) (441 SE2d 861) (1994) (affirming grant of adoption petition). When even slight evidence supports the trial court’s denial of a petition to adopt, it cannot be held that the discretion residing in that court was abused, particularly if that slight evidence indicates the best interest of the child will be served by denying the petition to adopt. Grady v. Hill, 128 Ga. App. 153, 154 (1) (195 SE2d 794) (1973).

“The question of the weight to be attributed to the conflicting evidence was a matter for the superior court. As an appellate court, we may examine only the sufficiency of the evidence and having done so, we find that there is sufficient evidence to authorize the superior court’s resolution of the factual conflict” against appellants. (Emphasis in original.) Motes v. Love, 202 Ga. App. 749 (1) (415 SE2d 334) (1992). This evidence includes testimony that appellants failed to intervene on the child’s behalf for approximately 20 months despite their knowledge that the father and mother were drug abusers, the mother was suffering from mental illness, and the child was significantly underweight and ill.

Appellant Elizabeth Bragg acknowledged that appellants had refused to take the child or had returned the child to the parents and to foster care on several previous occasions; this was confirmed by other witnesses. Evidence was also presented that appellants engaged in negative and even bizarre behavior during supervised visitation: they ignored the child; they engaged in very rough play despite the child’s pleas to stop; and they called the child, who is male, by a female form of his name and threatened to buy him a dress. A foster parent testified that the child reacted poorly to visitation with appellants and became agitated and aggressive after such visits.

The trial court had the opportunity to question and observe the parties and witnesses and judge their credibility. Given the trial court’s wide discretion in determining whether good and sufficient cause for adoption has been shown, and because its judgment is supported by some evidence and is not clearly erroneous, we are not authorized to set it aside. Lee v. Stringer, supra, 212 Ga. App. at 403 (3).

We note that appellants make assertions in their brief that purport to contradict evidence introduced below: specifically, that the evidence regarding the criminal record of one of appellants’ adult children was in error. It is axiomatic, however, that the record below cannot be enlarged by assertions in briefs, and this Court cannot consider such material. Johnson v. Bruno’s, Inc., 219 Ga. App. 164 (2), 165 (464 SE2d 259) (1995). The son in question was available to testify. Appellants had both an opportunity and the obligation to submit evidence in support of their contentions at trial; they cannot do so on appeal.

Appellants also contend that the trial court failed to follow the recommendations of the investigative report required by OCGA § 19-8-16. While OCGA § 19-8-18 (a) (1) requires that the trial court “give consideration” to the report, see generally Cafagno v. Hagan, 213 Ga. App. 631, 633-634 (2) (445 SE2d 380) (1994), it does not require that the court follow or adopt any conclusions in the report. The report appears in the record, and the trial judge stated on the record that he had read and considered it. This contention is without merit.

3. Appellants complain in two very general enumerations of error that unspecified misleading and irrelevant evidence was illegally admitted. While their brief is extremely vague, it appears that their primary complaint is the admission of testimony regarding the criminal records of their adult children. Evidence was presented by certified copies of convictions and by testimony elicited from one of the appellants that three of appellants’ four children, who were living in close proximity to or frequently visited appellants, had substantial criminal records. These included major felonies in the case of one son and sexual offenses involving children in the case of another son. There is no evidence in the record, and no argument in appellants’ brief, to support any contention that the evidence was admitted illegally. To a general objection on the ground of relevance, the trial court responded, “I’ll hear it and I’ll give it the weight I think it needs. I think there can be some relevance to it.”

Appellants have cited no authority, and we find none, that this evidence was completely irrelevant to a consideration of the child’s best interest. This Court has relied on evidence of “associations with people connected with criminal activities,” among other things, to affirm a trial court’s conclusion that an individual was an unfit and improper person to have custody of his own children. Milford v. Maxwell, 140 Ga. App. 85, 86 (3) (230 SE2d 93) (1976). The admissibility of evidence is “within the discretion of the trial court and our law favors admission of relevant evidence, leaving the weight it should be accorded for the jury. Thus, appellate courts will not interfere with the exercise of that discretion unless it is abused. . . . The Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors. Where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it.” (Citations and punctuation omitted.) Pope v. Witter, 205 Ga. App. 101, 103 (4), (5) (421 SE2d 725) (1992). The trial court was authorized to consider such evidence in the context of a petition for adoption.

Decided May 29, 1997.

Before Judge Altman.

Arthur J. Shelfer, Jr., for appellants.

Gwendolyn A. Atkinson, for appellee.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.

       The minor child was also the subject of a deprivation petition. The mother’s appeal was dismissed. In the Interest of J. C. H., 224 Ga. App. 708 (482 SE2d 707) (1997).


text:
    A97A0382.
    MURRAY et al. v. SANFORD.
    (487 SE2d 135)
   Smith, Judge.

Judy Williams, the mother and next friend of Donna Sanford, a minor, brought suit on behalf of Sanford against Dianna Murray and her parents to recover damages for injuries incurred by Sanford in an automobile accident. Dianna Murray, who was also a minor, lost control of her car and collided with a truck; the collision seriously injured Sanford, who was a passenger in Murray’s car. In addition to other injuries, including right-sided paralysis, Sanford suffered a severe brain injury with lasting effects. The trial court granted a directed verdict in favor of Sanford on the issue of liability, and that ruling is not appealed.

The issue of damages was decided by a jury, which returned a verdict for Sanford in the amount of $3.5 million. The Murrays moved for a new trial on this issue. Their motion was denied, and this appeal ensued. In the Murrays’ two enumerations of error, they contend the trial court erred in charging the jury on loss of future earnings because insufficient evidence was presented to support such a charge.

In general, a jury charge on loss of future earnings is authorized when some evidence is presented of a permanent injury, the effect of the injury on earnings, and the monetary amount of the expected loss. Super Discount Markets v. Coney, 210 Ga. App. 659, 660 (1) (436 SE2d 803) (1993). When a permanent injury affects the injured party’s ability to work, only one compensation exists; but that compensation may involve three elements: the plaintiff’s diminished ability to labor, diminished earning capacity, and future lost earnings. Jones v. Hutchins, 101 Ga. App. 141, 148 (113 SE2d 475) (1960). The specific facts of each case dictate which elements are applicable. Id.

Ordinarily, a plaintiff may recover for lost future earnings if evidence is presented from which a jury can estimate lost earning capacity. Alto Park Super Mart v. White, 216 Ga. App. 285, 287 (2) (454 SE2d 580) (1995). Although proof of actual earnings is not always absolutely essential, some evidence must be presented showing earnings capability both before and after the injury. Myrick v. Stephanos, 220 Ga. App. 520, 521 (472 SE2d 431) (1996). We agree with the Murrays that Sanford presented no evidence from which the jury could calculate an award for future lost earnings. We do not agree, however, that the presentation of such evidence was necessary for a recovery in this case.

Sanford was a high school student at the time of the accident. She may have had plans and wishes about a future career, but no record of earning wages even existed from which a jury could calculate the amount of her future lost earnings. When the injured party is too young to have a work or earnings history, it has long been established that a different rule applies. Betts Co. v. Hancock, 139 Ga. 198, 207 (9) (77 SE 77) (1913). In such cases, the amount of damages awardable for a permanent injury rests in the sound discretion of the jury. This discretion must be exercised in light of the jury’s own common observation and experience, in order to compensate the plaintiff for the injury actually sustained. Id. at 207-208 (9); Jones, supra at 143.

Were it otherwise, a child who has not yet begun a working life would never be able to establish entitlement to damages for an injury that cost him or her a great deal in terms of future ability to earn, even when that diminished earning capacity is obvious. “[T]he courts recognize this feature of the matter to such an extent as to affirm that in cases where the plaintiff is an infant with no fixed avocation or trade, and therefore wholly unable to even conjecture what his probable future calling and loss of earnings therein may be, a recovery may be allowed on that score without any proof whatever suggesting the amount.” (Citations and punctuation omitted.) Hancock, supra at 208 (9). See also Thomas v. Barnett, 107 Ga. App. 717, 725-726 (3) (131 SE2d 818) (1963).

A charge such as that given in this case on the necessity of proof from which the jury may calculate future lost wages may, indeed, confuse the jury. In this case, the trial court charged the jury that “[l]ost future earnings are to be determined on the basis of the earnings, if any, that plaintiff will lose. And there must be some evidence before you as to the amount of such future expected earnings.” This was error. But harm as well as error must be shown. The jury was authorized to return a verdict awarding damages to Sanford based entirely upon their enlightened collective conscience even without proof of any kind supporting such an award other than Sanford’s permanent injury. The Murrays therefore cannot show that they were harmed by this incorrect charge, and the verdict and judgment must stand.

Decided May 29, 1997

Before Judge Martin.

Barrow, Sims, Morrow & Lee, A. Mark Lee, Christine J. Bedingfield, for appellants.

Savage & Turner, Robert B. Turner, Russell M. Stookey, for appellee.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


text:
    A97A0461, A97A0943, A97A1073.
    ROWE v. FLEET MORTGAGE CORPORATION (three cases).
    (487 SE2d 133)
   McMurray, Presiding Judge.

On August 28, 1996, plaintiff Fleet Mortgage Corporation instituted dispossessory action 96-D-069568 in the State Court of DeKalb County, alleging that defendant Paul Rowe and others were “tenant[s] at sufferance [due to] foreclosure sale date[d] 08/06/96,” with unpaid rent accruing “at the rate of $24.80 per day.” Defendant’s answer alleged: “Plaintiff failed to furnish the amount needed to cure default on Loan # 8294019, held by Fleet Mortgage, before sale date of August 6th 1996. Oral request was made, followed by written request via certified mail on July 30th 1996, and again on August 21st 1996.” As a judgment on the pleadings, a writ of possession effective ten days hence was issued on September 16, 1996. But the trial court expressly declined to rule on any claim of back rent. In Case No. A97A0461, defendant filed a direct appeal from that writ of possession, contending that the dispossessory should have been transferred to the superior court after defendant timely answered, that proper notice of the intended foreclosure was not given; that OCGA § 44-14-162.2 is unconstitutional; and that “foreclosure was voluntarily suspended by [plaintiff Fleet Mortgage Corporation] when they promised to give [defendant] the opportunity to reinstate the mortgage.”

The remainder of the case was subsequently heard by the state court without a jury but defendant “failed to appear for trial. . . .” The trial court determined that defendant “did not timely pay money into court pending appeal,” and on December 18, 1996, issued another writ of possession effective that day. In Case No. A97A0943, defendant filed an immediate notice of direct appeal from this order. In Case No. A97A1073, defendant filed a second appeal from the December 18, 1996 writ of possession. These three appeals are hereby consolidated for disposition in a single appellate decision. Held:

Case Nos. A97A0943 and A97A1073

1. Defendant has submitted his “MOTION TO DISMISS APPEAL” in each of Case Nos. A97A0943 and A97A1073, “announc[ing] to the Court that his fight to stay in possession of his house ended in March, 1997, when [plaintiff] successfully had his belongings sat outdoors.” We do not determine whether such circumstances render these appeals subject to involuntary dismissal under OCGA § 5-6-48 (b) (3) for mootness. See generally Kappers v. DeKalb County Bd. of Health, 214 Ga. App. 117 (446 SE2d 794). Rather, we grant defendant’s motions for voluntary dismissal (withdrawal). Court of Appeals Rule 41 (e). Accordingly, Case Nos. A97A0943 and A97A1073 are dismissed upon defendant’s motion.

Case No. A97A0461

2. Relying on Rucker v. Fuller, 247 Ga. 423 (276 SE2d 600), defendant contends his case should have been automatically transferred to the superior court after his timely answer. We disagree, for former Code Ann. § 61-303 as interpreted in Rucker has been superseded by subsequent legislative enactment.

As currently enacted, OCGA § 44-7-53 (b) provides “If the tenant answers, a trial of the issues shall be had in accordance with the procedure prescribed for civil actions in courts of record except that if the action is tried in the magistrate court the trial shall be had in accordance with the procedures prescribed for that court.” “The State Court of DeKalb County is a court of record and its practice and procedure is controlled by the Civil Practice Act. Electro-Kinetics Corp. v. Wilson, 122 Ga. App. 171 (1) (176 SE2d 604) (1970).” Smith v. Mack, 161 Ga. App. 95 (289 SE2d 299). There is no automatic transfer of a dispossessory action from the state court to the superior court, upon the defendant’s timely answer in the state court.

3. In his second enumeration, defendant contends “he should have been given the same due process rights as afforded in O.C.G.A. § 44-14-180 (2),” and in his third enumeration that OCGA § 44-14-162.2 is “unconstitutional (Federal/State) because the law is vague, ambiguous, and confusing. . . .”

These enumerations fail to specify any error allegedly committed by the trial court. See OCGA § 5-6-51 (4). For aught that appears of record, these contentions were never presented to the trial judge nor any ruling thereon invoked. “This Court will not consider issues and grounds for objection, even of constitutional magnitude, which were not raised and determined in the trial court. Gee v. State, 210 Ga. App. 60, 61 (3) (435 SE2d 275).” Revera v. State, 223 Ga. App. 450, 452 (2) (477 SE2d 849). “ ‘It is well established law that enumerations of error which raise questions for the first time on appeal present nothing for decision.’ (Citations and punctuation omitted.) English v. Liberty Mtg. Corp., 205 Ga. App. 141, 142 (1), 143 (421 SE2d 286).” Wright v. Barnett Mtg. Co., 226 Ga. App. 94, 96 (1) (485 SE2d 583).

Decided May 29, 1997.

Before Judge Leitch, pro hac vice (case no. A97A0461). Before Judge Leshaw, pro hac vice (case nos. A97A0943 and A97A1073).

Roy Miller, for appellant.

Shapiro & Swertfeger, L. Jack Swertfeger, Jr., John M. Daniel, Stanley E. Kreimer, Jr., for appellee.

4. Defendant’s fourth enumeration contends that “foreclosure was voluntarily suspended by [plaintiff] when they promised to give [defendant] the opportunity to reinstate the mortgage.” But defendant has submitted no transcript of the evidence presented.

We are unable to consider the merits of this enumeration. In the absence of a transcript or some attempt to recreate the record as contemplated by OCGA § 5-6-41 (g) and (i), the appellate court must assume the judgment below was correct and was supported by evidence. Deen v. United Dominion Realty Trust, 218 Ga. App. 443 (1), 444 (462 SE2d 384). Consequently, we affirm the issuance of a writ of possession.

Judgment affirmed in Case No. A97A0461. Appeals voluntarily dismissed upon motion in Case Nos. A97A0943 and A97A1073.

Beasley and Smith, JJ, concur.