text:
    A95A0944.
    BREWER v. THE STATE.
    (463 SE2d 906)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with child molestation and burglary. The evidence adduced at his jury trial showed that Investigator Sergeant Richard O. McCann, Jr. of the Richmond County Sheriffs Office was dispatched to 1801 Harcourt Drive “in reference to a burglary, possible criminal attempt rape.” There, the 12-year-old victim “described the suspect as a white male, late twenties, fairly heavy, brownish blonde, or golden hair down to his shoulders.” This description was corroborated by 12-year-old Tabatha Grooms. Each girl examined a six-person photographic lineup and “identified the picture [of defendant].”

The victim testified that while she was spending the night with her friend, Tabatha Grooms, “Tabatha just happen [sic] to glance at the window and she calmly said, she said, ‘There’s a man at my window,’ and we didn’t panic or anything, we just went under the covers.” This man “was wearing glasses and he had sort of a light brown, brown colored hair. . . .” He “had his hands cupped towards the window [about a minute or two] . . . and then he went away, he just walked away. . . .” The girls “had the curtains opened and the street light was shining in and it lit up the room pretty much.” The victim was hiding “under the covers but [she] could see through and [she] said, ‘Oh Tabatha, he’s here again.’ ” The girls “didn’t hear a [front] door open [. . . but] heard the noise of Tabatha’s sister’s door, . . . cause it makes a popping noise and then it creaks open. . . .” “And then he opened our door [but just. . .] a little bit and then he would wait a little bit and then open it more then he came in[.]” The victim “heard something jingling, a belt or something, and then he pulled the covers off of me and then he laid on top of me.” The perpetrator said to the victim, “ ‘If you scream, talk, or move, I’ll kill you.’ Tabatha heard this, too.” The victim “looked over at Tabatha real quick and then . . . looked back at him and then [she] just started screaming and . . . kicking and then he jumped up and . . . ran out.” The victim affirmed that “he was naked from the waist down,” when he got on top of her. She also affirmed that “the person that was laying on top of [her was] the same person that [she] saw in the window” and identified defendant in court as that person. Tabatha Grooms also testified to these events, adding that, after the perpetrator jumped up from her bed, she “heard a rustle like . . . when you put on clothes.” Tabatha Grooms was certain defendant was the perpetrator, “because when I saw him, . . . this had never happened to me before, and then I got his face, it was like burned in, . . . I’ll never forget it.”

The jury found defendant guilty of both charges. The judgment of conviction and sentences were entered on March 4, 1993. New counsel was appointed on behalf of defendant, and permission was granted to file an out-of-time motion for new trial. That motion was denied, and this appeal followed. Held:

1. Defendant’s first two enumerations raise the general grounds. “On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the [defendant] no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Howard v. State, 261 Ga. 251, 252 (403 SE2d 204); King v. State, 213 Ga. App. 268, 269 (444 SE2d 381).” Dolphus v. State, 218 Ga. App. 565 (462 SE2d 453). “ ‘Conflicts in the testimony of the witnesses, including the (S)tate’s witnesses, is a matter of credibility for the jury to resolve. (Cits.) As long as there is some (competent) evidence, even though contradicted, to support each fact necessary to make out the (S)tate’s case, the jury’s verdict will be upheld. (Cit.)’ Searcy v. State, 236 Ga. 789, 790 (225 SE2d 311).” Grier v. State, 218 Ga. App. 637 (1) (463 SE2d 130). “The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8. Thus, although defendant in the case sub judice testified in his own defense that he was nowhere near the scene because his 1979 Monte Carlo automobile ran out of gas at Willis Foreman Road, the eyewitness evidence from the two girls is sufficient to establish identity. The jury was authorized to infer “from the fact that defendant exposed himself to a child that he had the intent to arouse or satisfy his sexual desires.” Andrew v. State, 216 Ga. App. 427, 428 (454 SE2d 542). It follows that defendant unlawfully entered the residence with felonious intent. Consequently, the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307, supra, to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of the burglary and child molestation as alleged in the indictment.

2. In his third enumeration, defendant contends the trial court erred in allowing the introduction of State’s Exhibit 2, the photographic lineup, arguing that, because his photograph contains the signatures of the victim and Tabatha Grooms on the back, they constitute “continuing witnesses.” This contention is controlled adversely to defendant and is consequently without merit. Allison v. State, 213 Ga. App. 195, 196-197 (2) (444 SE2d 347); Parks v. State, 199 Ga. App. 736, 738 (2) (406 SE2d 229). Moreover, it appears that this specific objection has been waived for failure to object at trial. Walker v. State, 216 Ga. App. 236, 237 (2) (454 SE2d 156).

3. In a similar vein, defendant contends that the photographic lineup that is State’s Exhibit 2 amounts to impermissible character evidence of extrinsic criminal acts, because defendant’s photograph is signed or initialed by two additional persons on the date “8/13/92,” i.e., two days after the victim and Tabatha Grooms selected defendant’s photograph. Although the better practice, by far, is for the State’s Attorney to redact such arguable indications of extrinsic crimes on its own initiative, we hold that the grounds urged in this enumeration have not been preserved for appellate review. This exhibit was admitted with “[n]o objection” at trial. “Where an objection to evidence ‘ “is raised (for the first time) in a motion for new trial or before this court, nothing is presented for review. . . . (Cits.)” (Cit.)’ Fitzgerald v. State, 193 Ga. App. 76, 77 (5) (386 SE2d 914) (1989).” Jackson v. State, 209 Ga. App. 53, 55 (5) (432 SE2d 649).

4. The fifth enumeration contends the trial court erred in failing to grant a mistrial after an alleged comment on defendant’s right to remain silent. The transcript shows the following transpired: “[STATE’S ATTORNEY:] All right, what did you do after the girls identified the Defendant from the photo lineup? [SERGEANT INVESTIGATOR McCANN:] An arrest warrant was issued to [defendant]. [STATE’S ATTORNEY:] Do you have any further involvement with the case after this? [SERGEANT INVESTIGATOR McCANN:] None other than the fact that he was arrested and after being Mirandized by myself and Investigator Hatfield, he requested an attorney. [STATE’S ATTORNEY:] Okay, thank you, I have no further questions at this time.” Thereafter, defense counsel began cross-examination of Sergeant Investigator McCann, without moving for a mistrial or requesting any curative instructions.

“ ‘Evidence as to silence on the part of the defendant at the time of his arrest should be excluded when objected to, for he is then entitled to remain silent, and the prosecution may not use against him the fact that he stood mute or claimed his privilege. (Cit.)’ Reid v. State, 129 Ga. App. 660, 664 (5) (200 SE2d 456). ‘Improper reference to a defendant’s silence, however, does not automatically require reversal. (Cits.)’ Hill v. State, 250 Ga. 277, 283 (4a) (295 SE2d 518).” Sims v. State, 213 Ga. App. 151, 152 (2) (444 SE2d 121). “ ‘A mistrial will not lie where [, as in the case sub judice,] the evidence is admitted without objection. (Cit.)’ McCormick v. State, 152 Ga. App. 14, 15 (2) (262 SE2d 173) (1979). See also Bennett v. State, 165 Ga. App. 600, 601 (3) (302 SE2d 367) (1983).” Peoples v. State, 184 Ga. App. 439 (2), 440 (361 SE2d 848). Since defendant made no contemporaneous motion for mistrial at the time the comments were given, any valid objection thereto “ ‘will be considered as waived because of the delay in making it. (Cits.)’ Dye v. State, 177 Ga. App. 824, 825 (341 SE2d 314) (1986).” Peoples v. State, 184 Ga. App. 439 (2), 440, supra.

5. Defendant next contends the trial court erred in failing to give his written request to charge on criminal trespass as a lesser offense included in the indicted offense of burglary. The State replies in its brief that no such instruction was necessary because, “ ‘[w]here the uncontradicted evidence shows completion of the greater offense, the charge on the lesser offense is not required.’ Lemon v. State, 161 Ga. App. 692, 289 SE2d 789 (1982).”

“ ‘In State v. Alvarado, 260 Ga. 563, 564 (397 SE2d 550), the Georgia Supreme Court expressly disapproved of that line of authority which had held that a lesser-included offense need not be charged unless the evidence showed that the defendant was guilty only of the lesser crime, and held that “the correct rule is that a written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser offense.” (Emphasis supplied.)’ Galbreath v. State, 213 Ga. App. 80, 81 (1) (443 SE2d 664).” King v. State, 214 Ga. App. 311, 312 (2) (447 SE2d 645). In the case sub judice, however, defendant’s evidence of alibi does not reasonably raise the inference that he unlawfully entered the home with a less culpable mental state of mind than the felonious intent of a burglar as charged in the indictment. OCGA § 16-1-6 (1). See also Sloan v. State, 214 Ga. App. 784, 786 (3) (449 SE2d 328).

6. In the seventh enumeration, defendant contends the trial court erred in denying his pretrial motion to suppress identification testimony based upon the photographic lineup. He argues the photographic lineup was impermissibly suggestive because “the picture tone of his photograph in the six-person array was demonstrably lighter than the other five persons.” He further claims that the in-court identification process was “tainted because a police officer told the two [girls . . .] that they had chosen the Defendant and that he would be arrested.”

Convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification. McCoy v. State, 237 Ga. 62, 63 (226 SE2d 594). The test of a photographic array involves “a two-step inquiry: (1) whether there was an impermissibly suggestive photographic identification procedure, and (2) if so, whether under the totality of the circumstances this resulted in a substantial likelihood of irreparable misidentification.” (Citations and punctuation omitted.) Jackson v. State, 209 Ga. App. 53 (1), 54, supra. We have examined the array which is included in the record and find the persons there depicted to be of roughly similar age and appearance. The witnesses independently identified defendant’s photograph as the perpetrator out of the immediate presence of the other and without being coached by the police. The contention that the shading and tone of defendant’s photograph made this photographic identification procedure unduly suggestive is without merit. Cheeves v. State, 157 Ga. App. 566 (1) (278 SE2d 148). “Since the pre-indictment lineup procedures were not impermissibly suggestive, so as to lead the witnesses to an ‘all but inevitable’ identification of [defendant], he has failed to establish even the first prong of the relevant inquiry. Sparks v. State, [185 Ga. App. 225, 226 (2) (363 SE2d 631)]. The trial court did not err in denying the motion to exclude from evidence the eyewitness identification testimony. Newkirk v. State, 155 Ga. App. 470, 472 (2) (270 SE2d 917) (1980).” Jackson v. State, 209 Ga. App. 53 (1), 54, supra. The additional argument that the in-court identification of defendant is tainted by Sergeant Investigator McCann’s statement to the victim “[r]ight after [her] interview, . . . that he [defendant] had been arrested for this,” is not reasonably encompassed within the error as enumerated. Consequently, it cannot be considered. Stanley v. State, 195 Ga. App. 706, 707 (2) (394 SE2d 785).

7. Defendant’s final enumeration contends he was denied effective assistance of counsel, because trial counsel “failed to object to the admissibility of State’s Exhibit 2, the photograph of [defendant], which effectively implicated him in other crimes.”

“To succeed on an ineffective assistance of counsel claim, [defendant] must show that trial counsel’s performance was deficient and that it prejudiced [the defense] so as to deprive [the accused] of a fair trial. [Cit.] There is a strong presumption that trial counsel’s performance ‘falls within the wide range of reasonable professional assistance’ and that any challenged action ‘ “might be considered sound trial strategy.” ’ [Cit.]” Earnest v. State, 262 Ga. 494, 496 (5) (422 SE2d 188).

Decided October 20, 1995

Reconsideration denied November 6, 1995.

Peter D. Johnson, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

There is no transcript of any evidentiary hearing on this special ground for new trial, and the trial court’s order denying the motions recites only that the “amended motion for new trial having been presented to the Court for consideration, the same is hereby DENIED.” In support of defendant’s amended motion for new trial, appellate counsel never summoned trial counsel to testify and explain or justify trial counsel’s failure to object to the extraneous signatures on the back of defendant’s photograph in the police photographic lineup.

“[T]he acknowledged constitutional right to assistance of counsel guarantees ‘not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and [actually] rendering reasonably effective assistance.’ MacKenna v. Ellis, 280 F2d 592, 599 (5th Cir. 1960); Pitts v. Glass, 231 Ga. 638, 639 (203 SE2d 515) (1974).” (Emphasis omitted.) Johnson v. Zant, 249 Ga. 812 (1) (295 SE2d 63). “In the absence of [evidence] to the contrary, counsel’s actions are presumed strategic. Stanley v. Zant, 697 F2d 955 (11th Cir. 1983), cert. denied, 467 U. S. 1219 (1984).” Earnest v. State, 262 Ga. 494, 496 (5), supra. It is acceptable trial strategy to avoid drawing the jury’s attention to unfavorable matters, such as the pendency of other charges. In the case sub judice, the trial court was authorized to conclude that defendant had failed to overcome the strong presumption that the assistance actually rendered fell within that broad range of reasonably effective assistance that members of the bar in good standing are presumed to render. Shaw v. State, 211 Ga. App. 647, 649 (2) (440 SE2d 245).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A94A0409.
    In the Interest of L. A. E., a child.
    (463 SE2d 175)
    Decided November 6, 1995.

      Mark R. Pollard, for appellant.

      Lewis R. Slaton, District Attorney, Sally A. G. Butler, Carl P. Greenberg, Assistant District Attorneys, for appellee.
   Johnson, Judge.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court, In the Interest of L. A. E., a child, 265 Ga. 698 (462 SE2d 148) (1995), our decision in In the Interest of L. A. E., a child, 214 Ga. App. 268 (447 SE2d 627) (1994), is hereby vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Judgment affirmed.

All the Judges concur.


author: Andrews, Judge.

text:
    A95A1254.
    WAYE v. THE STATE.
    (464 SE2d 19)
   Andrews, Judge.

Defendant Ulyssee Waye faces charges of sale of cocaine (OCGA § 16-13-30), possession of cocaine with intent to distribute (OCGA § 16-13-30), and possession of a firearm during the commission of a crime (OCGA § 16-11-106). He appeals the denial of his motion to dismiss, or alternatively, plea in bar based on double jeopardy grounds.

Waye asserts that county law officers executing a search warrant at his residence seized $78,254 and discovered the cocaine upon which the instant state drug charges are predicated. They transferred the currency to federal officials who initiated federal forfeiture proceedings pursuant to 21 USC § 881 et seq. Waye asserts that neither he nor his counsel received notice of the seizure and he never contested the forfeiture. The record shows that the notice of seizure was addressed to Waye at 162 Morris Street, Kingsland, Georgia, and the notice states it will be published for three successive weeks in USA Today. A declaration of forfeiture was entered administratively before the instant criminal proceedings were commenced.

After his indictment, Waye filed the motion to dismiss or, alternatively, plea in bar from which he appeals. The trial court denied the motion, finding that Waye’s failure to contest the forfeiture meant he was not placed in jeopardy in those proceedings. It also found that the Georgia Code sections prohibiting double jeopardy did not bar the prosecution because they reached only prior criminal proceedings and not the civil forfeiture proceedings at issue here.

Waye argues that double jeopardy attached after the conclusion of federal civil forfeiture proceedings against the currency seized from his home, barring his criminal prosecution. He contends that the forfeiture proceedings constituted punishment within the meaning of the double jeopardy clause.

Waye is correct in arguing that the double jeopardy clause prohibits multiple punishments for the same offense and that civil penalties may constitute punishment for double jeopardy purposes when imposed for retribution and deterrence. United States v. Halper, 490 U. S. 435, 440, 448 (109 SC 1892, 104 LE2d 487) (1989). Moreover, punishment has been found to be one purpose of forfeitures under 21 USC § 881 (a) (4) and (7). Austin v. United States, 509 U. S--(113 SC 2801, 125 LE2d 488, 503) (1993). We need not decide, however, whether the forfeiture at issue would subject Waye to an unconstitutional double punishment were his criminal prosecution to proceed. Jeopardy never attached because Waye never filed a claim on the currency at issue. The constitutional policies underpinning the double jeopardy clause are not implicated before jeopardy attaches. Serfass v. United States, 420 U. S. 377, 390-391 (95 SC 1055, 43 LE2d 265) (1975).

A forfeiture proceeding is an in rem action premised on the legal fiction that the property itself committed a crime. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663, 680-684 (94 SC 2080, 40 LE2d 452) (1974). Before claimants to the seized property can defend on the merits, they must file a claim. United States v. Approximately 2,538.85 Shares of Stock, 988 F2d 1281, 1284 (1st Cir. 1993). If no claim is filed, claimants lack standing to contest the forfeiture. Id. Waye’s failure to file a claim means he was never a party to the forfeiture and was not, in a legal sense, subject to its punitive aspects. Therefore, jeopardy never attached to Waye in the forfeiture proceedings.

We also find that Waye’s prosecution is not barred by the applicable double jeopardy provisions of Georgia law. Ga. Const. 1983, Art. I, Sec. I, Par. XVIII; OCGA §§ 16-1-6, 16-1-7, 16-1-8; Stone v. State, 166 Ga. App. 245 (304 SE2d 94) (1983). It appears that the double jeopardy clause of the Georgia Constitution is construed no more broadly than the federal constitution. Ga. Const. 1983, Art. I, Sec. I, Par. XVIII; State v. Oliver, 188 Ga. App. 47, 49 (372 SE2d 256) (1988). While the applicable Code sections “extend the proscription of double jeopardy beyond those constitutional limits” by their language, they apply only to criminal proceedings, not to civil proceedings. State v. Martin, 173 Ga. App. 370, 371 (326 SE2d 558) (1985); OCGA §§ 16-1-6, 16-1-7, 16-1-8; see Godfrey v. State, 248 Ga. 616, 619 (284 SE2d 422) (1981). Moreover, these sections, too, are triggered only after jeopardy attaches. Geckles v. State, 177 Ga. App. 70, 72 (338 SE2d 473) (1985). Accordingly, the trial judge properly denied Waye’s motion.

Decided November 6, 1995

John J. Ossick, Jr., for appellant.

W. Glenn Thomas, Jr., District Attorney, Carole E. Wall, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

       Waye raises due process issues regarding his lack of notice in the federal proceedings, but this is not the appropriate forum in which to contest the constitutional validity of the forfeiture. See, e.g., Torres v. $36,256.80 U. S. Currency, 25 F3d 1154, 1161 (2d Cir. 1994).


author: Pope, Presiding Judge.

text:
    A95A1778.
    GREEN v. THE STATE.
    (464 SE2d 21)
   Pope, Presiding Judge.

A jury convicted defendant Calvin Blake Green of robbery. He appeals, and we affirm.

On November 22, 1993, a black man wearing green pants, a dark sweater and a black ski cap entered a convenience store in Valdosta, Georgia. After placing several items on the counter, he pulled the ski cap down over his head and said to the clerk: “This is a jack; give me the money or I’ll kill you.” The man then took approximately $40 from the cash register and left the store, at which point the clerk summoned police.

At the time of the robbery, Gail Gilliard drove past the store. She saw a suspicious looking man wearing dark clothes and a black cap. The man drove out of the store’s parking lot in a blue Dodge Shadow. Although Gilliard could not identify the man, she was able to copy down the car’s tag number. She returned to the store and gave this information to the police.

In less than 30 minutes, Officer Stan Cook located the car in front of its registered address. He then saw defendant, dressed in green pants and a bluish-green sweater, leave the address and enter the car. Cook approached defendant and told him that the car was reported as having been used in a robbery. Cook also asked defendant if he would be willing to go to the store to see if the clerk could identify him. Defendant stated that he was willing. Shortly thereafter, two detectives arrived. When Cook went over to talk to them, defendant said, “Let’s go. That lady can’t identify me.” At the time, however, Cook had not told defendant that the store clerk was female. The detectives looked in the car and saw a black ski cap sitting on top of some money in the front passenger seat. They instructed Cook to place defendant under arrest.

After advising defendant of his rights, Cook took defendant to the store for a showup and then to the police station. Upon removing defendant from the police car, Cook found a note wedged behind the police car’s back seat, which read: “Put all the money in bag.” Defendant admitted that the note was his. At trial, the store clerk positively identified defendant as the robber and explained that she did not identify him at the showup because she was upset and scared. The clerk also identified the pants and black cap recovered from defendant as being similar to those the robber wore. Additionally, a detective testified that $40 was recovered from the car. Although defendant did not own the car, he admitted he had free use of it on the date in question.

1. Contrary to defendant’s assertion, the evidence in this case was sufficient for a rational juror to have concluded beyond a reasonable doubt that defendant was guilty of robbing the store. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Consequently, we find no error in the trial court’s denial of defendant’s motion for a directed verdict of acquittal based on the general grounds.

2. Defendant contends that the trial court erred in denying his first motion for a mistrial, which was based on his challenge to the State’s use of peremptory strikes to remove two prospective black jurors from the jury pool. See Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). “The preliminary issue of whether [defendant] established a prima facie case of discrimination is moot because the prosecutor offered purportedly race-neutral explanations for the peremptory challenges and the trial court ruled [in favor of the prosecution] on the ultimate question of intentional discrimination. [Cit.] We therefore need only address the sufficiency of the prosecutor’s explanations. . . .” Chunn v. State, 210 Ga. App. 209, 210 (2) (435 SE2d 728) (1993).

The prosecutor explained that a black woman was struck because she previously had been prosecuted for felony welfare fraud. “The prosecutor’s concern that such a juror might be biased against the State in the instant case is legitimate and his explanation as to the exercise of this peremptory challenge is racially neutral.” Id. The prosecutor’s explanation for striking a black man from the jury pool also was legitimate and racially neutral. As the prosecutor stated, it was believed the man was a defense witness in another case, and the man appeared to be the same age as defendant. Consideration of age and the possibility of affinity between a potential juror and a defendant is a race-neutral reason for exercising a peremptory strike. See Hall v. State, 261 Ga. 778, 780 (2) (415 SE2d 158) (1991); Higginbotham v. State, 207 Ga. App. 424, 425-426 (3) (428 SE2d 592) (1993); Rogers v. State, 205 Ga. App. 739, 743 (4) (423 SE2d 435) (1992). This is especially true in cases like this where the prosecution used its only other two strikes against potential white jurors who also appeared to be the same age as defendant. Consequently, because we agree with the trial court’s finding that the prosecutor’s explanations were credible and sufficiently neutral, we hold that the denial of defendant’s first motion for a mistrial based on Batson was not erroneous.

3. Defendant’s contention that the trial court erred in denying his second motion for a mistrial, which was based on the State’s alleged failure to disclose purportedly exculpatory photographic identification evidence, is without merit. The record demonstrates that police recovered film from a surveillance camera located in the store. It is undisputed that photos developed from this film did not memorialize the robbery and, at the latest, were made available to the defense at trial. Defendant, “relying on Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963), contends that these photos should have been made available to him prior to trial. However, Brady is not violated when the Brady material is available to the defendant during trial, since Brady does not require a pre-trial disclosure of the materials. Even if the photos were discoverable before trial, the prosecutor will not have violated his constitutional duty of disclosure unless such omitted evidence creates a reasonable doubt as to the defendant’s guilt which did not otherwise exist. The omitted evidence here does not meet this standard of materiality. Accordingly, the trial judge did not err in denying [defendant’s second motion for a mistrial].” (Citations and punctuation omitted.) Glenn v. State, 255 Ga. 533, 534-535 (2) (340 SE2d 609) (1986).

4. Defendant’s contention that he was entitled to a mistrial because the State improperly placed his character into evidence also is meritless. The record shows that on cross-examination the prosecution asked defendant’s alibi witness, Jewell Brown, whether she and defendant were girlfriend and boyfriend. Brown responded that they had lived together at one time. Defendant argues that such testimony created the inference that he was an adulterer. We disagree. There is simply no evidence in the record that defendant nor Brown was married to another person at the time they lived together. Thus, as the trial court noted, there is no evidence of adultery.

5. Finally, we find no error in the trial court’s failure to specifically charge the jury on alibi and identification. It is undisputed that defendant did not request a charge on these matters. In Rivers v. State, 250 Ga. 288, 300 (8) (298 SE2d 10) (1982), the Supreme Court held that when a trial court does charge the jury, as it did here, completely and correctly on defendant’s presumption of innocence, on the State’s burden of proof and on credibility of witnesses, and the State produces evidence sufficient to prove defendant’s guilt beyond a reasonable doubt, a specific charge on alibi is not mandated absent a request. The reason behind this ruling is that given the trial court’s instructions as a whole, a jury could not convict a defendant if they did not believe beyond a reasonable doubt that the defendant was present and actually committed the crime. Id. In this case, the reasoning behind Rivers applies equally to the trial court’s failure to instruct the jury on identification.

Decided November 6, 1995.

Edwards & Edwards, H. B. Edwards III, for appellant.

H. Lamar Cole, District Attorney, Bradfield M. Shealy, Assistant District Attorney, for appellee.

Judgment affirmed.

Beasley, C. J., concurs. Ruffin, J., concurs in judgment only.


text:
    A95A1121.
    DEPARTMENT OF ADMINISTRATIVE SERVICES v. BROWN et al.
    (464 SE2d 7)
   Andrews, Judge.

In this interlocutory appeal, the Department of Administrative Services (“DAS”) challenges the trial court’s denial of its motion to intervene in a personal injury case asserted by DAS’s insured, Luneda Brown.

The underlying negligence action involves an automobile collision in December 1993. A tractor-trailer driven by an employee of Leon Jones Feed & Grain, Inc. (“Jones”) allegedly injured Brown, a Sumter County Health Department employee acting within the scope of her employment. As a result, DAS, the State’s workers’ compensation self-insurer, paid Brown over $100,000 in workers’ compensation benefits.

After Brown commenced this action against Jones, its driver, the owner of the trailer, and their insurers, DAS moved to intervene. In denying the motion, the trial court found that (1) intervention would prejudice Brown’s case; (2) Brown adequately represented DAS’s interests; and (3) DAS’s intervention would cause evidentiary and other problems.

DAS argues that OCGA § 34-9-11.1 created an unconditional right to intervene because it paid Brown workers’ compensation for injuries caused by a third party with no relationship to the employer.

Applicants may intervene as of right under two circumstances: (1) when a statute confers “an unconditional right” to intervene and (2) when they claim an interest relating to the property or transaction which is the subject matter of the action and are so situated that the disposition of the action may impair their ability to protect that interest, unless other parties adequately represent their interests. OCGA § 9-11-24 (a) (1), (2).

OCGA § 34-9-11.1 creates a subrogation lien on behalf of employers and insurers for amounts paid in workers’ compensation. DAS bases its contention that it has an unconditional right to intervene on language in § 34-9-11.1 (b) which states, “[t]he employer or insurer may intervene in any action to protect and enforce such lien.” Although we reject DAS’s argument that “may” means “shall” in this context, we interpret the statutory language at issue as granting DAS the right to intervene if it chooses to do so. OCGA § 1-3-3 (10); cf. Jennings v. Suggs, 180 Ga. 141 (178 SE 282) (1935); see, e.g., OCGA § 53-4-36.

In addition, DAS may intervene as of right under OCGA § 9-11-24 (a) (2). DAS possesses an interest in Brown’s recovery due to its subrogation lien on the workers’ compensation funds it paid Brown. OCGA § 34-9-11.1 (b). As a practical matter, without intervention, DAS’s interest could be impaired should Brown settle and disperse her award without DAS’s knowledge. Nor does it appear that DAS’s interests are adequately represented by the existing parties, inasmuch as Brown argued below that DAS would not be entitled to any recovery if she was not first fully and completely compensated. Intervention is also warranted because under the instant circumstances DAS has no right to pursue its own independent action against the third parties. OCGA § 34-9-11.1 (c); G. Mark Cole, Note, “Review of Selected 1992 Georgia Legislation: Labor and Industrial Relations,” 9 Ga. St. L. Rev. 285, 293, n. 60 (1992); cf. Zinser v. Tormenta, S.A., 213 Ga. App. 824, 825 (446 SE2d 249) (1994).

The arguments against intervention are not persuasive. Brown’s proposal that DAS renew its motion after judgment jeopardizes DAS’s interests in the event of settlement or during trial. For example, DAS’s interests would be best served by a special verdict form in order to assert its lien rights while Brown’s interests would be better served by a general verdict. Moreover, notwithstanding Brown’s argument, “[intervention after judgment is not usually permitted and to justify it requires a strong showing.” (Citations omitted.) Sta-Power Indus. v. Avant, 134 Ga. App. 952, 958 (3) (216 SE2d 897) (1975). Further, appropriate instructions to counsel and the jury could abate any potential prejudice to Brown’s case or evidentiary problems caused by DAS’s intervention.

Decided October 25, 1995

Reconsideration denied November 7, 1995

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Teresa E. Lazzaroni, Assistant Attorney General, Webb & Lindsey, Mark D. Oldenburg, for appellant.

Watson, Spence, Lowe & Chambless, Mark A. Gonnerman, Barksdale & Mobley, Steven J. Misner, Kenneth M. Henson, Jr., for appellees.

Under these circumstances, we find that the trial court abused its discretion in denying DAS’s motion to intervene. Zinser, supra at 825. We therefore reverse and remand for proceedings consistent with this opinion.

Judgment reversed and case remanded.

McMurray, P. J., and Blackburn, J., concur.


text:
    A95A1114.
    JOHNSON v. PRIME BANK et al.
    (464 SE2d 24)
   Andrews, Judge.

Janice Johnson sued her former employers, Prime Bank, Federal Savings Bank, and Prime Bancshares, Inc., (“the bank”) and Darrell Pittard and Jo Hill for wrongful procurement of discharge, slander, libel and defamation, false imprisonment and arrest, invasion of privacy, and intentional infliction of emotional distress. The trial court granted defendants’ motion for summary judgment and Johnson appeals. We affirm.

Viewed in the light most favorable to Johnson, the evidence was as follows. Janice Johnson began working for the bank in 1973 as a clerk. When she was terminated on July 29, 1991, she held the title of Executive Vice-President. At some time prior to her termination, Johnson began dating Don McNeely, who was in the process of getting a divorce. Deborah McNeely, Don McNeely’s estranged wife, disappeared under suspicious circumstances, and the police suspected that Don McNeely had murdered her. Captain Rhoades of the Rockdale County Sheriff’s Department, who was investigating Deborah McNeely’s disappearance, approached Darrell Pittard, President and CEO of the hank, about questioning Johnson. They used the bank’s offices to question Johnson about a stolen tractor found on her property and her knowledge of Deborah McNeely’s disappearance. After the questioning, officers arrested Johnson for theft by receiving stolen property. The magistrate dismissed the charge at the preliminary hearing the next day.

Officers also subpoenaed the bank records of Don McNeely. It was discovered that Johnson had several times deposited McNeely’s paycheck into his account for him and also had withdrawn cash from his account at various times. Although Johnson contended that she had a power of attorney authorizing her to make these transactions, it could not be found in the bank’s files. The bank suspended Johnson because of the discovery of this “unsafe and unsound practice” pending an investigation by the Office of Thrift Supervision. The bank subsequently fired Johnson.

1. Johnson claims that the trial court erred in granting the bank’s motion for summary judgriient on each count of her complaint.

(a) As to her claim for wrongful procurement of discharge, Johnson argues that Pittard conspired with Jo Hill, a Senior Vice-President, to use false charges to induce the Board of Directors to fire her. But, the motives for discharge are legally immaterial when the employment agreement is one that is terminable at will and the employee is discharged by one with authority to do so. Miles v. Bibb Company, 177 Ga. App. 364, 365 (339 SE2d 316) (1985). A claim for wrongful procurement of discharge fails if the person who terminates the employee is authorized to do so. Miles, supra at 365.

Defendants submitted Pittard’s affidavit stating that he had full authority as President and CEO to discharge Johnson. The affidavit further states that the Board of Directors agreed with his suspension and termination of Johnson. Johnson has come forward with no evidence to show that Pittard did not have the authority to discharge her. Accordingly, we find the trial court did not err in granting defendants’ motion for summary judgment on Johnson’s claim for wrongful procurement of discharge.

(b) Second, Johnson claims that the trial court erred in granting defendants’ motion for summary judgment on her claim of false imprisonment and arrest. This enumeration of error is without merit. Defendants submitted the affidavits of Captain Rhoades and Officer Green which are uncontroverted and state unequivocally that neither the bank nor its employees were connected in any way with Johnson’s questioning and subsequent arrest. Rhoades informed Pittard they were coming to the bank to question Johnson and requested a private room in which to do so. The officers then made an independent determination to arrest Johnson. The extent of the bank’s involvement in the questioning and arrest was their decision to cooperate with the law enforcement officers and make the room available as requested. According to Johnson herself, defendants’ only statement to her was “these people want to talk with you.” Accordingly, the trial court did not err in granting the bank’s motion for summary judgment on Johnson’s claim for false imprisonment and arrest.

(c) Johnson also sirgues that the trial court erred in granting the bank’s motion for summary judgment on her claim for slander, libel and defamation. These claims appear to be time-barred by the one-year statute of limitation. However, even pretermitting this issue, Johnson points to no evidence in the record, and we are unable to discover any, that refutes the bank’s affirmative evidence that all the statements and documents upon which Johnson bases her claim, were truthful. Accordingly, this enumeration of error is without merit.

(d) The trial court properly granted summary judgment to the bank on Johnson’s claim for invasion of privacy. This claim also appears to be time-barred. Further, the grounds for the claim are information supplied to the police pursuant to a subpoena and cooperation in a murder investigation. Johnson cites to no authority, and we find none, for her claim that the information given by the bank constitutes an invasion of privacy.

(e) Johnson argues that the trial court erred in granting summary judgment to the bank on her claim for intentional infliction of emotional distress. Johnson cites to no case law or facts in support of her claim. In reviewing the record, we find no evidence that the bank’s conduct was so egregious or outrageous as to support a claim for intentional infliction of emotional distress. Phillips v. Pacific &c. Co., 215 Ga. App. 513, 517 (451 SE2d 100) (1994). The trial court did not err in granting summary judgment on this claim.

2. Next, Johnson claims that the trial court erred in denying her motion to disqualify defendants’ counsel. Johnson claims that counsel may have a conflict of interest in representing both the corporation and the defendants who have been sued in their individual capacity.

We note that Johnson has no standing to bring this motion since she has no attorney-client relationship with defendants’ counsel. Reese v. Ga. Power Co., 191 Ga. App. 125, 127 (381 SE2d 110) (1989). Further, Johnson has presented no evidence which would justify curtailing a client’s right to counsel of choice. Accordingly, we find there was no abuse of discretion in the trial court’s order denying Johnson’s motion to disqualify defendants’ counsel. Blumenfeld v. Borenstein, 247 Ga. 406, 410 (276 SE2d 607) (1981).

3. We have reviewed Johnson’s remaining enumerations of error and find them to be without merit. These enumerations concern decisions left to the sound discretion of the trial court which we will not disturb absent an abuse of that discretion. See NeSmith v. Ellerbee, 203 Ga. App. 65 (416 SE2d 364) (1992) (trial court has discretion whether or not to consider affidavits not served at least one day prior to summary judgment hearing); Bicknell v. CBT Factors Corp., 171 Ga. App. 897, 899 (321 SE2d 383) (1984) (trial court has authority to control manner in which depositions are taken); Payne v. State, 207 Ga. App. 312, 314 (428 SE2d 103) (1993) (whether or not to grant motion for continuance based upon insufficient time to prepare for trial left to sound discretion of trial court).

Decided November 7, 1995

Victoria D. Little, for appellant.

Long, Weinberg, Ansley & Wheeler, William P. Langdale III, Lance D. Lourie, Sharon B. Austin, for appellees.

Judgment affirmed.

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


author: Ruffin, Judge.

text:
    A95A1307.
    AVERILL v. AKIN et al.
    (463 SE2d 730)
   Ruffin, Judge.

In 1977, John Averill, Herbert Saliba and John Akin opened a fruit packing business called Herbert Saliba Packing House, Inc. (the “packing house”). Averill was an officer, director and 25 percent owner of the packing house. Saliba, now deceased, was also an officer and director, and owned 50 percent of the packing house. Akin owned the remaining 25 percent and he too was an officer and director. In addition to owning the packing house, both Saliba and Akin grew peaches which were packed by the business. From 1979 to 1983, Aver-ill was paid substantial dividends from his ownership of the packing house. Following the cessation of dividend payments in 1986 and Saliba’s death in 1988, Averill sued Akin and W. W. Kidd, the executor of Saliba’s estate on October 10, 1990. In his complaint, Averill alleged that from 1983 to 1986, Akin and Saliba misappropriated packing house funds through a rebate program, thereby depriving him of dividend payments. Akin and Kidd moved for summary judgment, contending in part that Averill’s complaint was barred by the statute of limitation. The trial court granted the motion and Averill appealed. We affirm.

Viewed in a light most favorable to Averill as the respondent, the record shows that growers would deliver fruit to the packing house where the peaches were packed, sold and delivered to buyers. After being paid for the peaches, the packing house would deduct expenses for packing, brokerage commissions, trucking, and inspection, then pay the balance to the grower. Beginning in 1983, in an effort to attract more business, the packing house offered rebates to growers based on the volume of peaches delivered for packing. Both Saliba and Akin sent the peaches they grew to the packing house and, like other growers, received rebates based on the volume of peaches delivered for packing.

Although the packing house’s general ledger contained a column reflecting the rebates, financial statements prepared by its accountant did not show the rebates as a separate line item. Rather, the financial statement included the rebates under a packing charge account. Aver-ill testified at his deposition that the only time he requested to see the corporate books prior to Saliba’s death was in 1979 and that the bookkeeper provided them to him. He further testified that the first time he looked at the general ledger after Saliba died, he had no difficulty ascertaining the existence of the rebates and was able to compute the total rebates paid without any assistance. He stated that the ledger contained a detailed recitation of the dates the rebates were paid, the check numbers and the person to whom the checks were written, and that January 6, 1986 was the last date a rebate was paid. Finally, the record shows that in both 1986 and 1988, Averill requested inspection reports from the State to determine the quantity of peaches inspected by the packing house because he suspected that someone might be “cooking the books” and he was not sure he would get the correct answer from Saliba.

1. Averill asserts the trial court erred in holding that his action was barred by the statute of limitation. He contends that the limitation period was tolled under OCGA § 9-3-96 because he was fraudulently debarred and deterred from filing the action. He argues that because Saliba and Akin were corporate officers, they were obligated to inform him of the rebate program and that their silence constituted a fraud which tolled the statute until he discovered the alleged misdeeds in 1989.

OCGA § 9-3-96 provides that “[i]f the defendant . . . [is] guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiff’s discovery of the fraud.” Generally where the defendant accused of fraud is a corporate officer occupying a fiduciary relationship with the shareholder, the “mere silence” of that officer is sufficient to toll the statute. Shipman v. Horizon Corp., 245 Ga. 808, 809 (267 SE2d 244) (1980). However, a shareholder is not “entitled to negligently refuse to acquire knowledge that was open and available to him . . .” through inspection of the corporation’s books and records. Comolli v. Coggins, 200 Ga. 620, 624 (37 SE2d 793) (1946). “Where the opportunities for knowledge are equal, the stockholder takes the consequences of failing to inform himself. [Cit.]” Manning v. Wills, 193 Ga. 82, 89 (2) (17 SE2d 261) (1941). In short, a shareholder cannot turn a blind eye on information available to him. See Quinn v. Forsyth, 116 Ga. App. 611 (3) (158 SE2d 686) (1967).

In this case, the record shows that the general ledger, which was available to Averill and provided to him upon request, clearly and in detail showed rebates were being paid to growers until January 6, 1986. Given that Averill had an equal opportunity to inform himself of the rebates, he must suffer the consequences of failing to acquire that knowledge.

Decided November 7, 1995.

Roy W. Griffis, Jr., O. Hale Almand, Jr., for appellant.

Jones, Cork & Miller, Hubert C. Lovein, Jr., John D. Raines III, Davis, Gregory, Christy & Forehand, Gary C. Christy, for appellees.

The trial court ruled, and it is not disputed that the statute of limitation for AverilPs claims against the defendants is four years. Because Averill did not file his complaint until October 10, 1990, the trial court did not err in granting the summary judgment to the defendants.

2. Because we concluded in Division 1 that summary judgment was proper, it is unnecessary to address AverilPs other assertion that the trial court erred in ruling that this suit should have been filed as a derivative action.

Judgment affirmed.

Beasley, C. J., and Pope, P. J., concur.


text:
    A95A1332.
    R. R. R. LIMITED PARTNERSHIP v. INVESTGUARD, LTD. et al.
    (463 SE2d 735)
   Pope, Presiding Judge.

Appellant/plaintiff R. R. R. Limited Partnership (“R. R. R.”) appeals the grant of a directed verdict in favor of defendants Investguard, The Money Source and Stedry on the conspiracy count of its complaint.

The appeal arises from the following facts. R. R. R. and Rayek Abdo sued Miroslav Stedry (a mortgage broker), Investguard and The Money Source, alleging that Stedry, who owned and operated Investguard and The Money Source, persuaded Abdo that he could make profitable investments by making loans secured by real estate. According to the complaint, based on the defendants’ advice, Abdo and R. R. R. made loans.

The complaint alleged that Stedry’s wife was an attorney who represented Abdo and R. R. R. in connection with the loans. When the borrowers defaulted on the loans, the plaintiffs discovered that the property securing the loans was worth less than the loans. The complaint alleged that Ms. Stedry unethically, and without revealing her conflict of interest, sacrificed the interests of R. R. R. and Abdo to those of her husband. The complaint also alleged that Stedry induced his wife to breach her fiduciary duties and that Stedry, the Money Source and Investguard breached their fiduciary duties and were negligent in their capacity as agents for Abdo and R. R. R. Although many of the complaint’s allegations involved Ms. Stedry, she was not a party to the suit; the complaint stated that her alleged negligence and other wrongful actions were the subject of a separate suit.

R. R. R. and Abdo filed an amendment to the complaint, adding a conspiracy count. In the amended complaint, R. R. R. and Abdo alleged that the defendants had engaged in a pattern of racketeering activity and that the defendants had obtained money from them by extortion and blackmail. The amended complaint also alleged that Ms. Stedry’s representation of Abdo and R. R. R. was, in several ways, violative of the disciplinary rules of the State Bar and that Mr. Stedry conspired with her to defraud the plaintiffs.

The case was tried to a jury; at the conclusion of the evidence, the court directed a verdict in defendants’ favor on the conspiracy claim. The jury returned a verdict in favor of R. R. R. (to which Abdo’s claims had been assigned) and against The Money Source for $63,975 and against Investguard for $498,600. No damages were imposed against Stedry.

The Money Source and Investguard filed a notice of appeal; they subsequently withdrew that appeal. R. R. R. filed a timely notice of cross-appeal; that appeal is the sole matter before us.

In its sole enumeration of error, R. R. R. claims that the court erred in directing a verdict on the conspiracy count. It contends that because Stedry was its agent and profited from the loans, it was improper for Stedry’s wife to be involved in the transactions, and that as a result of Ms. Stedry’s unrevealed conflict of interest, she did not sufficiently investigate the nature of the property securing the loans. R. R. R. further asserts that there was evidence of a conspiracy by which Stedry induced his wife to breach her duties to the plaintiffs. Citing Grainger v. Jackson, 122 Ga. App. 123 (2) (176 SE2d 279) (1970), R. R. R. argues that the law recognizes the difficulty of proving the existence of a conspiracy and that slight circumstances of conspiracy suffice to establish it.

“A conspiracy is a combination of two or more persons to accomplish an unlawful end or to accomplish a lawful end by unlawful means.” (Citations and punctuation omitted.) First Fed. Savings Bank v. Hart, 185 Ga. App. 304, 305 (2) (363 SE2d 832) (1987). In granting the directed verdict, the trial court stated that a conspiracy to commit negligence was a “non sequitur.” Although this statement is accurate, it is inapplicable to this case. “There can be no conspiracy without a purpose, express or implied, to do something unlawful, oppressive, or immoral. . . .” Holland v. Sanfax Corp., 106 Ga. App. 1, 6 (2) (126 SE2d 442) (1962). In this case, the evidence authorized the jury to find that the Stedrys conspired with the purpose of defrauding R. R. R. and Abdo.

Decided November 7, 1995.

Arnall, Golden & Gregory, Hugh W. Gibert, James W. Butler III, for appellant.

Brookins & Cook, O. Jackson Cook, Kyle A. Pearson, for appellees.

There was evidence that the Stedrys urged Abdo to make loans; that they assured Abdo that Stedry was an expert at this kind of business and that Ms. Stedry would be the closing attorney and would protect his legal interests. There was evidence that based on the Stedrys’ advice, between December 1989 and July 1990, Abdo and R. R. R. loaned more than $3 million to four companies. There was evidence that the Stedrys told Abdo and R. R. R. that the security on the loans was worth more than it actually was; that when the loans went into default, R. R. R. and Abdo sustained losses of more than $1 million; that Stedry’s companies received contingent loan fees from the loans of $191,475; and that Ms. Stedry did not disclose to Abdo and R. R. R. her large financial interest in the closings and the possibility that her professional judgment might be compromised. Because there was evidence from which a jury could conclude that the Stedrys had formed a conspiracy, the trial court erred in directing the verdict.

The fact that Ms. Stedry was not a party to the suit was not fatal to the complaint. The allegations were that the Stedrys were joint tortfeasors, and “joint tortfeasors are not indispensable parties in an action against one of them, because their liability is both joint and several.” Ekokotu v. Pizza Hut, 205 Ga. App. 534, 537 (5) (422 SE2d 903) (1992). “Where several persons conspire to defraud another, one or all of the wrongdoers may be sued, and proof of the conspiracy renders the act of one in deceiving and defrauding the injured party the act of all.” Willson v. Appalachian Oak Flooring &c. Co., 220 Ga. 599, 609 (1) (140 SE2d 830) (1965).

Judgment reversed.

McMurray, P. J., and Ruffin, J., concur. Beasley, C. J., disqualified.


author: Beasley, Chief Judge.

text:
    A95A1405.
    KEITH v. ALEXANDER UNDERWRITERS GENERAL AGENCY, INC.
    (463 SE2d 732)
   Beasley, Chief Judge.

On December 17, 1993, Alexander Underwriters General Agency, Inc. (“Underwriters”) filed a complaint against “L. L. KEITH DBA GREENVILLE INSURANCE AGENCY” on an open commercial account. On December 29, a deputy sheriff served Keith’s father, Latzak, who operated the insurance agency in Greenville. The deputy marked the return of service in the space designating that Latzak was “domiciled at residence of defendant.” In fact, Keith did not reside there or anywhere with her father, nor anywhere in Meriwether County, and she was never served with the complaint and summons.

Latzak himself filed an answer and counterclaim on January 24, 1994, signing it “(Individually), and as Agent for Greenville Insurance Agency.” On March 4, Underwriters moved to dismiss or strike the answer because it had sued Keith individually, Latzak was not a member of the bar and therefore could not answer for an individual, and the Greenville Insurance Agency was not a corporate entity for which Latzak could file a pro se answer. Keith, through counsel, filed an entry of appearance on March 16, and a “Recast Answer and Counterclaim” on April 1.

On April 29, Underwriters moved to enter a default judgment for want of a timely answer. This motion was granted on June 23. It does not appear the court ever acted on the earlier motion to dismiss or strike the answer. Although Keith filed a notice of appeal in the trial court from the entry of default judgment, no appeal was docketed in this court at that time. She then moved to set aside the default judgment in the trial court. The court denied that motion, noting that the earlier notice of appeal did not deprive it of jurisdiction because Keith had not paid costs in the trial court. OCGA § 5-6-46 (a); Rockdale Awning &c. v. Kerbow, 210 Ga. App. 119, 120-121 (1) (435 SE2d 619) (1993). Her application for discretionary appeal to this Court was granted and this appeal followed. She contends that the motion to set aside should have been granted and the court erred in entering a default judgment. See OCGA § 5-6-34 (d).

“ ‘[D]efault judgment is a drastic sanction that should be invoked only in extreme situations. Whenever possible cases should be decided on their merits [,] for default judgment is not favored in the law.’ ” Ryles v. First Oglethorpe Co., 213 Ga. App. 327, 328 (1) (444 SE2d 578) (1994). Keith contends the default judgment was not proper because a timely answer was filed.

Underwriters’ motion to enter default, and its opposition to Keith’s motion to set aside, rested upon the assumption that service was proper and upon the argument that Latzak’s answer was ineffective, leaving no answer within the 30-day period required by OCGA § 9-11-12 (a), or even within the additional 15-day “grace period” allowed under OCGA § 9-11-55 (a). Keith’s motion to set aside the default pursuant to OCGA § 9-11-60 (d) (1) was based on the failure to serve Keith and improper venue. Underwriters contends these defenses were waived by a failure to raise them in the answer or by timely motion. See OCGA § 9-11-12 (b); Burnette v. McCarter, 211 Ga. App. 781, 782 (1) (440 SE2d 488) (1994).

The first document filed in the trial court that purported to be an answer was filed by Latzak on January 24. This was within 30 days of service of the complaint upon Latzak, but it was not an answer or appearance by Keith.

Suit was filed against “L. L. KEITH DBA GREENVILLE INSURANCE AGENCY.” There is no legal entity named the Greenville Insurance Agency, which appears to be only a trade name. Thus, only Keith was sued; the inclusion of “DBA GREENVILLE INSURANCE AGENCY” does not alter that fact and it cannot make a nonexistent entity a party to the suit. Accord Fulton Paper Co. v. Reeves, 212 Ga. App. 314, 316 (2) (441 SE2d 881) (1994); Funderburg v. Farr Furniture Co., 111 Ga. App. 271, 272-273 (2) (141 SE2d 600) (1965). Keith was not served because she was not domiciled at the address at which Latzak was served, and the record contains no other evidence of service upon her. See OCGA § 9-11-4.

Keith had given Latzak power of attorney to operate the insurance agency, including the authority to “collect, sue for, settle, adjust or compromise and claim for money arising by contract or tort. . . .” She also gave him authority “[t]o do any other thing or perform any other act, not limited to the foregoing, which [she] might do in person, it being intended that this shall be a general power of attorney.” It is contended this gave Latzak the authority to file a pro se answer to the complaint on her behalf.

Only a duly licensed attorney may answer a complaint for a person who does not appear pro se. OCGA § 15-19-51 (a). Even if the law allowed a person to give another the power to make a pro se answer on her behalf by executing a power of attorney, this document evidences no such an intent. “ ‘[A] formal power of attorney is subject to a strict construction,’ and ‘general terms in it are restricted to consistency with the controlling purpose . . .’ [cits.], yet . . . ‘the agent’s authority shall be construed to include all necessary and usual means for effectually executing it.’ [Cit.]” LeCraw v. LeCraw, 261 Ga. 98, 99 (401 SE2d 697) (1991). The power of attorney was patently given to allow Latzak to operate the insurance agency. It contains no specific authority to accept service for her or to represent her in a suit against her. The general terms do not implicate such authority either; the power to make a response in a personal suit would be far beyond what would be needed to operate Keith’s insurance business.

Additionally, even if the law allowed such, Latzak’s answer in no way purports to be a response for Keith. It is signed by Latzak “(Individually), and as agent for Greenville Insurance Agency.” It does not mention Keith nor suggest it is responding for her. Rather, the answer shows that Latzak is attempting to represent two separate entities: (1) himself, and (2) Greenville Insurance Agency. The fact that he was not named a defendant to the action and had no right to pursue a counterclaim does not convert the answer into a pro se answer for Keith. Nor does his attempt to answer for “Greenville Insurance Agency,” not a legal entity, convert this document into a pro se answer for Keith simply because she is the person doing business under that name and had given Latzak a power of attorney to operate the business.

Underwriters agrees that Latzak’s answer was insufficient to constitute an answer on Keith’s behalf, but argues it nonetheless served as an “appearance” on her behalf, waived her jurisdiction and venue defenses by not raising them, Burnette, supra, yet still was ineffective to save her from default. This position is logically untenable. Latzak could not waive defenses of jurisdiction and venue for Keith because he did not answer for Keith. Had he answered for Keith, he may have waived certain of her defenses but default for failure to timely answer would not have occurred. Latzak’s answer did not serve as an answer for Keith and did not effect a waiver of her right to service of process. “ ‘[A] default judgment based upon other than legal service is a nullity, (cit.).’ [Cit.]” Hamm v. Willis, 201 Ga. App. 723, 724 (3) (a) (411 SE2d 771) (1991). As there was no service upon Keith on December 29,1993, she could not be in default 31 days thereafter. Id. See OCGA §§ 9-11-12 (a); 9-11-55 (a).

Although not initially served, Keith did later waive service by filing a general entry of appearance on March 26. HAP Farms v. Heard, 209 Ga. App. 684, 685 (1) (a) (434 SE2d 118) (1993). A waiver by appearance is in effect a substitute for service, and the time the appearance is made “is the equivalent of the time service of process is made in a normal case.” Hamm, supra at 725 (3) (b). Thus, Keith had 30 days from the time she filed her entry of appearance to file her answer. Id. She first appeared on March 26 and complied with the answer requirement less than 30 days later, on April 1, by filing her “Recast Answer and Counterclaim.”

The reference to another document filed in the case does not transform that legally insufficient document into a legally sufficient one by the imposition of an elastic meaning of adoption by reference. Nor does her reference to herself, in the general appearance, as “Defendant/Counterclaimant, in the above-styled action” enliven the ineffectual answer. Even if this is viewed as an implicit adoption of Latzak’s answer and counterclaim, the result does not change. There was still no valid service upon Keith, and no waiver of service until her appearance. She was not called upon to answer until that time. If she adopted Latzak’s answer in her entry of appearance, the substitute for service and the filing of the answer were simultaneous; the latter was not late. Thus, regardless of whether her appearance incorporated the purported answer or merely started the time running for answer to be made, that was accomplished within 30 days of the waiver of service.

Decided November 7, 1995.

Edward W. Klein III, Paul T. Wright, for appellant.

Venema, Doherty & Delashmit, J. Marcus Replogle, Michael L. Wetzel, for appellee.

Since Keith did not raise the issues of service or venue when she filed her entry of appearance, nor when she filed her “recast” answer, they cannot be resurrected. Hamm, supra at 724-725 (3) (b).

At the end of this rocky procedural road stands the conclusion that, as a matter of law, Keith was never in default. It was error for the trial court not to set aside the erroneously entered judgment.

Judgment reversed.

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

       After Keith’s entry of appearance through counsel, Latzak, through the same counsel, moved to intervene and assert a claim on his own behalf.


author: Smith, Judge.

text:
    A95A2021.
    BURCHFIELD v. THE STATE.
    (464 SE2d 27)
   Smith, Judge.

Roger Dale Burchfield was convicted of armed robbery, OCGA § 16-8-41, kidnapping, OCGA § 16-5-40, and three counts of terroristic threats on June 29, 1994, OCGA § 16-11-37. His motion for new trial was denied, and he appeals.

1. Burchfield contends the evidence did not support the verdict. Construed in favor of the verdict, the evidence showed that on December 30, 1993, Burchfield entered a convenience store in which Vanessa Cooper was working. He pulled out a gun and told Cooper and her friends Beth Underwood and Tommy Coleman they were being robbed. After threatening to “blow their brains out” if they did not cooperate, he then pointed the gun at Cooper and told her to give him money. Coleman told Burchfield not to hurt Cooper, to which Burch-field replied, cursing, “Don’t look at me . . . I’ll blow your brains out.” He also instructed Underwood and Coleman to lie face down on the floor. Cooper gave Burchfield her car keys and began leaving the store, with the cash drawer, upon his demand. She testified she was walking against her will, “in fear.” She walked approximately 18 steps to the door while Burchfield kept his cocked gun pointed at her. Once outside the door, she threw the change drawer to the ground and ran, eventually reaching a gas station, from which the police were called.

The testimony of Coleman and Underwood was essentially the same as Cooper’s testimony. Underwood testified Burchfield threatened to kill Coleman several times and that he told all of them at one point, “I’ll blow every blanking one of you away,” and that he also stated, “I should just shoot the — out of all three of you.”

The record shows that Burchfield was heavily intoxicated when he was apprehended by the police. One of the officers responding to the call regarding the robbery, Don Bruce, testified Burchfield was too intoxicated to be interviewed when he was initially apprehended, and he decided to wait until later to conduct an interview. Patty Marriott, Burchfield’s girl friend, testified that on the morning of December 29, and the preceding two mornings, she had put Lorazepam pills in Burchfield’s coffee without his knowledge. She had “slipped” him the prescription drugs because he was depressed. She told Burchfield about the drugs only three days before his trial, however, and she never reported her activities to law enforcement because “[t]hat had nothing to do with me.”

While “[v]oluntary intoxication is not an excuse for any criminal act,” Bailey v. State, 198 Ga. App. 632, 633 (2) (402 SE2d 363) (1991); OCGA § 16-3-4 (c), we recognize that involuntary intoxication may be a defense if the accused “did not have sufficient mental capacity to distinguish between right and wrong in relation to such act.” OCGA § 16-3-4 (a).

Despite Marriott’s testimony regarding the drugs she allegedly placed in Burchfield’s coffee, there was evidence from which a rational trier of fact could find beyond a reasonable doubt that Burch-field was guilty of the crimes charged against him under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Marriott’s testimony was not conclusive evidence that Burchfield’s intoxication was involuntary. Testimony was also presented that he had drunk at least three beers in the early afternoon and consumed a substantial amount of liquor. He admitted no one forced him to drink the alcohol. While Marriott’s testimony allowed the jury to consider the involuntary intoxication defense available under OCGA § 16-3-4, whether his intoxication was involuntary was a jury issue. See, e.g., Yearby v. State, 153 Ga. App. 159 (264 SE2d 693) (1980).

Moreover, a defendant relying on an involuntary intoxication defense must establish he was unable to distinguish right from wrong. Rauschenberg v. State, 161 Ga. App. 331 (291 SE2d 58) (1982). Burchfield’s testimony reveals that he had some capacity to distinguish right from wrong prior to robbing the store. He testified that on the evening of the robbery, he was in a car with his cousin, who suggested robbery to him. Burchfield told him, “[Y]ou are crazy, I’m not robbing no store.” This evidence supports a finding by a rational trier of fact that Burchfield could distinguish right from wrong at some time before robbing the store. See Swenson v. State, 196 Ga. App. 898 (1) (397 SE2d 211) (1990). A question remained for jury determination whether Burchfield later made a conscious decision to rob the store (or became voluntarily intoxicated) after making the comment to his cousin or whether Marriott’s alleged administration of medication involuntarily intoxicated him. The jury was properly instructed as to involuntary intoxication and decided this question against Burchfield. The evidence supports the jury’s determination.

Decided November 7, 1995.

Richard Thurman, for appellant.

Roger Queen, District Attorney, for appellee.

2. Contending he was still in an intoxicated state when he gave an in-custody statement on December 30,1993, Burchfield asserts the trial court erred in admitting the statement into evidence. We disagree. The officer who took the statement interviewed Burchfield at approximately 11:00 a.m. the next morning, approximately ten hours after he was arrested, and he testified to Burchfield’s condition at the time of that interview. Officer Bruce testified Burchfield understood his Miranda rights and “totally wanted to talk” to him; Burchfield was very cooperative and “talked freely on his own”; and “[t]here was a big difference” in Burchfield’s condition when he was interviewed and his intoxicated state at the time of his arrest. Bruce further testified that Burchfield was articulate, stable, and sober, even though he had a headache. Finally, Bruce testified he “would have never conducted the interview” if Burchfield were not sober. Clearly, evidence existed from which the trial court could determine Burchfield was sober when the interview was conducted, and it did not abuse its discretion in admitting Burchfield’s statement.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.


author: McMurray, Presiding Judge.

text:
    A95A0974.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. BISHOP.
    (464 SE2d 9)
   McMurray, Presiding Judge.

Plaintiff Bishop, who was formerly employed as an insurance salesman by defendant Georgia Farm Bureau Mutual Insurance Company, filed this action to recover unpaid wages and attorney fees. A jury trial resulted in a verdict in favor of plaintiff and judgment in the amount of $8,696.79 for damages plus $18,740.76 for attorney fees, costs, and expenses of litigation. Defendant appeals and submits three enumerations of error which question the sufficiency of the evidence to authorize various portions of the verdict returned by the jury. Held:

1. There was a succession of written contracts between the parties under which plaintiff was to be compensated based on two variables, the net premiums paid for the previous year on the accounts assigned to plaintiff and the loss ratio of the assigned accounts. The contracts did not specify the amount of premiums to be generated by the assigned policies or the loss ratio of those accounts. Plaintiff’s initial assignment with defendant was to Fayette County from January 1986 until the fall of 1987. During this initial interval, plaintiff was paid less because no adjustment was made to his salary for the loss ratio of the assigned accounts.

Plaintiff was then transferred to south Fulton County. In connection with this transfer, plaintiff was promised that he would be paid based on the assignment to him of accounts producing premiums in excess of $300,000 per year. In fact, plaintiff’s compensation after the transfer was based on accounts which had generated premiums of less than $255,000, albeit in February 1988, defendant began to pay plaintiff the loss ratio adjustment and did so during the remainder of plaintiff’s employment with defendant.

Defendant’s first two enumerations of error complain of the denial of its motions for directed verdict as to issues arising from the failure to pay the loss ratio adjustment and from the failure to pay on a larger book of business after the transfer to Fulton County. A similar mutual deviation or waiver argument is presented in support of both of these contentions. See OCGA § 13-4-4. Basically, defendant relies upon evidence of plaintiff’s acquiescence in the reduced pay by continuing to work without complaint after receiving the lower pay. The written contract between the parties was subject to termination after a brief notice, and defendant suggests, in essence, the creation of new contracts at the lower wages which are binding upon plaintiff.

There is evidence to support defendant’s position. Plaintiff clearly had knowledge of the failure to pay the loss ratio adjustment, and there is some evidence that plaintiff had sufficient information to have discovered that the south Fulton salary was based on a base of accounts with less premiums than agreed. The crux of the matter, though, is that defendant’s evidence was not uncontroverted.

There is also ample evidence supporting plaintiff’s claim which authorizes the verdict returned by the jury. In this regard, we note that plaintiff presented evidence that he complained to his agency manager and to his district manager concerning the defendant’s failure to pay the loss ratio adjustment and was told of an informal company policy that a new agent did not receive the loss ratio adjustment until he had been with the company two years. This was in conflict with the representations which had been made to plaintiff during employment negotiation and under plaintiff’s evidence that this was not the actual policy of the company as to career agents such as plaintiff, albeit there was a policy of this nature with regard to trainee agents. Plaintiff was advised by his agency manager not to rock the boat and thereafter confined most of his complaints concerning the shortfall to the agency manager, although shortly before he left the company he did complain to the general manager about defendant’s failure to pay the loss ratio adjustment. There is also evidence that plaintiff did not have sufficient information to determine that his compensation after the transfer to Fulton County was based on the assignment of accounts which produced less than the agreed level of premiums.

The question we ultimately reach requires a determination of the intent of the parties. The question of whether there has been a mutual and intended departure so as to make practically a new agreement is generally a matter for a jury. Travelers Ins. Co. v. Adkins, 200 Ga. App. 278, 282 (4) (d) (407 SE2d 775). “A party may by his conduct waive a legal right but where the only evidence of an intention to waive is what a party does or forbears to do, there is no waiver unless his acts or omissions to act are so manifestly consistent with an intent to relinquish a then-known particular right or benefit that no other reasonable explanation of his conduct is possible. Marsh v. Wright Mem. Mortuary, 197 Ga. App. 736 (399 SE2d 232); Jones v. Roberts Marble Co., 90 Ga. App. 830 (2) (84 SE2d 469).” MNM 5, Inc. v. Anderson/6438 Northeast Partners, 215 Ga. App. 407, 409 (2), 410 (451 SE2d 788). In our view, the evidence in the case sub judice does not demand a conclusion that plaintiff accepted a revision of his contract with defendant. There is evidence in regard to one portion of his claim that he complained and sought an appropriate remedy while continuing his employment. As to the other portion of his claim, there is evidence that plaintiff did not know and could not reasonably have discovered the shortfall in his compensation. Under these circumstances, a directed verdict in favor of defendant was not appropriate on these issues. Harris v. Tatum, 216 Ga. App. 607, 608 (1) (b), 609 (455 SE2d 124).

2. The remaining enumeration of error complains of the denial of defendant’s motion for directed verdict on plaintiff’s claim for attorney fees. We hold that this enumeration of error lacks merit. There was evidence from which the jury could conclude that defendant wilfully failed to pay plaintiff in accordance with the contracts under which he was employed and refused his demands to be paid the loss ratio adjustment in accordance with the contracts. Defendant’s assertions concerning a policy that loss ratio adjustments would be paid only after two years of employment were contradicted by plaintiffs evidence, and it is never explained how defendant’s “policy” would serve to dissolve plaintiffs rights under the employment contracts. The jury was authorized to conclude that there was no bona fide controversy between the parties. The award of attorney fees was authorized by the evidence. Citizens & Southern Trust Co. v. Hicks, 216 Ga. App. 338, 339 (2), 340 (454 SE2d 207); Fine & Block v. Evans, 201 Ga. App. 294, 296 (411 SE2d 73); Clements v. Barnes, 197 Ga. App. 120, 121 (2) (397 SE2d 560).

Decided October 26, 1995

Reconsideration denied November 8, 1995

Groover & Childs, Denmark Groover, Jr., for appellant.

Nelson & Hill, Janet E. Hill, Sujata G. Winfield, for appellee.

Judgment affirmed.

Blackburn, J., concurs. Andrews, J., concurs in the judgment only.


text:
    A95A1008.
    DEPARTMENT OF TRANSPORTATION v. 2.953 ACRES OF LAND et al.
    (463 SE2d 912)
   Andrews, Judge.

The Department of Transportation (“DOT”) appeals from a jury award to condemnees for compensation in a taking of 2.953 acres from a 32.2-acre plot. The DOT contends that the trial court erred by allowing evidence regarding consequential damages and cost of cure and by charging the jury on this evidence.

The 32.2-acre tract of land in question is being used by a wholesale grocery distributorship facility and consists of 20.475 acres south of a power line right-of-way on which are located the distribution facility’s warehouses and offices, 3.668 acres within the right-of-way of which a portion is used for parking, and 8.134 acres north of the right-of-way which was intended for use as an expansion site for more warehouse space. The 2.953 acres that were taken came from the 8.134 acres north of the right-of-way and fronted on the county road and Hwy. 301. The site consists of dry and multi-temperature cold storage facilities with a refrigerated loading dock and offices in both the dry and cold storage areas. It also has a truck maintenance facility with fuel, its own water supply, a retention pond, rail frontage and easy accessibility from Hwy. 301. The DOT appraiser valued the land and the facilities at $5.3 million before the taking and the condemnees’ appraiser valued them at $6.2 million. The DOT appraiser valued the land taken at $35,000 an acre for a total value of $103,400 and condemnees’ appraiser valued it at $45,000, for a total value of $132,930. Mr. Morris, the company’s chairman, testified as an expert and valued the land taken at $180,000.

Condemnees also claimed consequential damages because of the taking. Removing the approximately three acres from the site left an irregular wedge-shaped piece of property. While the site would have allowed warehouse space of 225,000 square feet before the taking, it was capable of accommodating a warehouse of only 73,000 square feet after the taking.

The condemnees claimed that the taking resulted in their having to purchase an adjoining eight-acre plot for $200,000 in order to build warehouse space large enough to allow for the projected growth in sales. At the time of the taking, the business was already operating at 20 to 25 percent over capacity and Mr. Morris testified that the company must continue to expand or close. As an example of the pressures involved in remaining competitive, Morris stated that there are now only three independent wholesale grocers still in business in Georgia. The eight-acre tract from which the approximately three acres were taken was the area designated for future expansion and represented 50 percent of the expansion space on the site.

The condemnees’ appraiser testified that immediately prior to the taking, the highest and best use of the property was as a wholesale grocery distributorship. However, as a result of the taking there was no longer any room to expand, and therefore, the highest and best use changed to that of general warehouse space. This change resulted in a diminution in value of the remainder, from which he arrived at consequential damages of $4,593,256.

The DOT appraiser agreed that the highest and best use was as a wholesale grocery distributorship. He further testified that the decline in value would be at least $2 million if it were sold for general warehouse space.

The only damages requested were for the taking and for $200,000 in consequential damages to the remainder, this being the cost of cure in buying the replacement property. The jury awarded the condemnees a total of $185,000.

The DOT brings 11 enumerations of error. They fail to support enumerations 4, 5 and 11 with any argument in their brief, and therefore, these enumerations are deemed abandoned. Court of Appeals Rule 27 (c) (2). Further, the sequence of argument in the DOT’s brief does not follow the order of the enumerations of error, in violation of Rule 27 (c) (1). In addition, in enumerations of error 2 and 3, the DOT cites two different errors within one enumeration. When an appellant asserts more than one error within a single enumeration this court may, in its discretion, review none, one or both of the errors asserted. Toledo v. State, 216 Ga. App. 480, 482 (455 SE2d 595) (1995). However, because we find that the court properly admitted the evidence on consequential damages and cost of cure, we need address only that part of the enumerations concerning the denial of the motion for directed verdict.

1. The DOT claims that the trial court erred in allowing evidence as to claimed consequential damages and cost to cure. In reviewing this enumeration of error, we note at the outset that “[admissibility of evidence is a matter which rests largely within the sound discretion of the trial court.” (Citations omitted.) Ramey v. Leisure, Ltd., 205 Ga. App. 128, 132 (421 SE2d 555) (1992).

“The proper measure of consequential damages to the remainder is the diminution, if any, in the market value of the remainder in its circumstance just prior to the time of the taking compared with its market value in its new circumstance just after the time of the taking. [Cits.]” DOT v. Metts, 208 Ga. App. 401, 403 (430 SE2d 622) (1993). “In a partial taking case, evidence as to the cost to cure may be admissible as a factor to be considered in determining the amount of recoverable consequential damages to the remainder. [Cits.]” Id. Here, condemnees claimed that the taking left them with an irregularly shaped piece of property which could no longer be used as a site for a warehouse large enough to meet the growing needs of their business. Therefore, they were forced to purchase an adjacent tract that would accommodate the warehouse. They submitted that the $200,000 price of the adjacent tract was their cost to cure the damage suffered because of the taking.

The DOT cites to no case law in support of its argument that the trial court erred in allowing the condemnees to submit evidence on these issues. Further, this case is very similar to the facts in DOT v. Old National Inn, 179 Ga. App. 158 (345 SE2d 853) (1986). The taking in that instance was 0.8 acre of land that was available for use as parking upon future expansion of the hotel. This Court held that the availability of adjacent land to replace the land taken was relevant in determining the amount of consequential damages to the remainder. Old National Inn, supra at 160. Implicit in this holding is that loss of space allocated for future expansion may be considered as consequential damages to the remainder. Accordingly, we find the trial court did not err in allowing this evidence and this enumeration of error is without merit.

2. At the same time as the DOT claims that all testimony as to consequential damages should be stricken, they also claim that the trial court erred in not directing a verdict as to the issues of consequential damages and cost to cure. “[I]n considering a ruling on a motion for directed verdict, the evidence must be construed most favorably to the party opposing the motion. The standard for review of a directed verdict and a judgment n.o.v. are the same: Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed. . . . [T]he standard of appellate review of the trial court’s denial of a motion for a directed verdict is the ‘any evidence’ standard.” (Citations and punctuation omitted.) Mattox v. MARTA, 200 Ga. App. 697, 698 (409 SE2d 267) (1991).

Again, the DOT cites to no case law in support of its proposition that the court erred in not directing a verdict on these facts. However, in their supplemental brief, the DOT contends that the condemnees’ evidence relating to the probable future use of the land was improper because only the present diminution in value is relevant. It cites to Colonial Pipeline Co. v. Williams, 206 Ga. App. 303 (425 SE2d 380) (1992), and DOT v. Benton, 214 Ga. App. 221 (447 SE2d 159) (1994), for the proposition that the future sale price of condemnees’ land is not at issue because only the present value is relevant. However, the cases cited by the DOT involve condemnees who claimed that the land could have been used for a better purpose in the future if not for the taking. Unlike the case at hand, these cases do not involve condemnees who claim that their land could not be purchased for the same purpose for which it is being used presently. Here, the condemnees claimed that the land was no longer saleable as a wholesale grocery distribution facility, the use for which it is presently used. Thus, the evidence presented as to the future sale price of the land after the taking was not “wholly speculative or conjectural” as suggested by the DOT. Further, this Court in Benton stated, “[ejven where a different use is probable, the jury cannot evaluate the property as though the new use were an accomplished fact; the jury can only consider the new use to the extent that it affects the market value on the date of taking.” (Citations omitted; emphasis in original.) Id. at 222. Thus, the jury in this case was certainly allowed to consider evidence of the fact that the market value as of the date of taking was affected because the property was no longer suitable for its present use.

In addition, as discussed previously, in support of a claim for consequential damages and cost to cure, this court has approved the use of evidence that condemnees were precluded from expanding and had to buy additional land in order not to lose future growth. See Old National Inn, supra at 161 (“Obviously, the consequential damage would be greater if that land, which would adequately serve the purpose intended for the taken land, was not available and the condemnee was left with either having to build a parking deck or being precluded from expanding and so losing future growth.”).

In light of the above, we find there was sufficient evidence of consequential damages, including cost of cure, to go to the jury. Accordingly, the trial court did not err in denying the DOT’s motion for a directed verdict.

3. Next, the DOT objects to the jury charge on the cost to cure. The charge was as follows: “If you do find that consequential damages have resulted, then in determining the measure of any consequential damages you may consider the value of any substituted land which you determine the condemnees have reasonably acquired in curing any such damages. I further charge you that if you do not find consequential damages have resulted, then you should not consider any evidence having anything to do with any substituted property or cost of cure.” The DOT cites to no authority in support of its claim that the charge is erroneous, but merely complains that the charge implies that the condemnees were entitled to recover the cost of the purchase of the 8.25 acres and thereby gave the court’s “stamp of approval on the condemnees’ purchase of additional property.” This argument is meritless. The charge is clear that if the jury does not find that condemnees have suffered any consequential damage, they are not to consider any cost of the substituted land. However, if they do find consequential damage, then they may consider the value of the substituted land. The trial court did not err in charging the jury on cost to cure.

4. Lastly, the DOT complains of the jury charges on “uniqueness” and business losses. Their argument is confusing because the DOT claims that without any evidence of loss of profits or interference with the business, condemnees could not contend that the property was unique and were not entitled to additional compensation for business loss. The DOT cites Dept. of Transp. v. Dixie Hwy. Bottle Shop, 245 Ga. 314 (265 SE2d 10) (1980), as authority for this proposition. This is clearly erroneous. The case actually states the inverse of this statement, i.e., “business losses are recoverable as a separate item only if the property is ‘unique.’ ” Id. at 315. In any event, the charge complained of was not a charge on additional claims for business losses to unique property, but rather, a charge on damage to the business as it affected the market value of the property. This evidence of damage to the business does not depend on the uniqueness of the property and is offered to help determine the market value of the property taken. “Furthermore, in the absence of a showing of a special or unique value to the owner, mere business losses caused by a partial taking of the land on which the business is located are not a separate element for compensation. Evidence of such losses may be submitted to the jury only to help establish the market value of the property taken.” (Emphasis supplied.) Southwire Co. v. Dept. of Transp., 147 Ga. App. 606, 610 (249 SE2d 650) (1978) (quoting Dept. of Transp. v. Dent, 142 Ga. App. 94, 95 (3) (235 SE2d 610) (1977)).

Decided October 26, 1995

Reconsideration denied November 8, 1995

Michael J. Bowers, Attorney General, Newton, Smith, Durden, Kaufold & Rice, Wilson R. Smith, for appellant.

Roach & Bradley, Hal Roach, Jr., for appellees.

The court’s charge was as follows: “I further charge you that the damage to a business by the taking of a part of the land where it is conducted may be considered in determining its effect upon the market value of the business property, but it is not a separate item of damage.” It is not clear what the DOT specifically claims is erroneous about the charge. The condemnees presented evidence at trial as to the decline in the market value of their property because of the taking, and the charge is a correct statement of the law on this issue. Dent, supra at 95.

The DOT’s objection to the charge on uniqueness is also without merit. There was ample evidence submitted as to the uniqueness of the property. The property was highly specialized, with improvements such as cold-storage facilities which were of value only to this business and would not be needed by other companies requiring only general warehouse space. Further, the DOT’s appraiser agreed there were no other facilities comparable to this one in the area, and therefore, it would have been difficult and expensive to re-locate. The DOT’s appraiser also agreed that this is not a property which is generally bought and sold in the open market. Thus, the court did not err in instructing the jury on uniqueness, especially since only slight evidence is necessary to authorize a jury charge on this issue. Dept. of Transp. v. 2.734 Acres of Land, 168 Ga. App. 541, 543 (3) (309 SE2d 816) (1983). Accordingly, this enumeration of error is without merit.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.