author: Miller, Judge.

text:
    A01A0091.
    BRAGG v. THE STATE.
    (548 SE2d 121)
   Miller, Judge.

Executing a search warrant, police found in Stephen Bragg’s residence and car 28.5 grams of cocaine, 172 MDMA (“Ecstasy”) tablets, ten pounds of marijuana, a rifle, and more than $19,000 in cash. Following an evidentiary hearing the court denied his motion to suppress, and following a bench trial it convicted him of trafficking in cocaine, possession of marijuana with intent to distribute, possession of MDMA with intent to distribute, and possession of a firearm during the commission of the above crimes. He appeals, citing as the sole error the denial of his motion to suppress. He argues that the underlying affidavit for the search warrant failed to show probable cause and that the officer omitted key information in making the affidavit. We disagree and affirm.

1. With regard to the facts, appellate review of a trial court’s order denying a motion to suppress follows three principles:

First, the trial judge sits as the trier of facts, and his findings are analogous to a jury verdict and should not be disturbed if there is any evidence to support the findings. Second, the trial court’s decisions on the credibility of witnesses and questions of fact must be accepted unless clearly erroneous. Third, the appellate court must construe the evidence most favorably to the upholding of the trial court’s findings and judgments.

So construed, the officer’s warrant affidavit and his oral testimony authorized the following:

Confidential informant No. 1 told police that illegal drugs (specifically cocaine) were being sold from Johnson Mobile Home Park, lot no. 44. Although the affiant told the magistrate that this informant was a reliable source, he did not inform the magistrate why the informant was considered reliable or his prior history in giving information to police. Police attempted to set up a controlled purchase by providing No. 1 with county funds for the purchase of drugs from lot no. 44 and by setting up surveillance of No. l’s residence and of lot no. 44. No. 1 knew someone who could buy drugs from lot no. 44 and arranged to have that person come and pick up the money from No. l’s residence.

Police observed an unknown man (unnamed informant No. 2) arrive at No. l’s residence in a vehicle and then leave and drive to lot no. 44. No. 1 informed police via phone that No. 2 had come to No. l’s residence, picked up the cash, and was driving a particular vehicle to purchase drugs from lot no. 44. Police observed No. 2 exit his vehicle at lot no. 44, go into the residence for a few minutes, and then leave. His route was the way back to No. l’s residence.

Police stopped No. 2’s car and, obtaining his consent, searched the vehicle, finding cocaine just outside the car in a plastic bag. They arrested No. 2 for possession of cocaine and took him to the police station. No. 2 confessed that he had just purchased the cocaine found near his vehicle from Bragg at lot no. 44 and that he had purchased cocaine from Bragg at this location at least 100 times.

No. 1 informed police that Bragg drove a white Mustang car, which police observed at lot no. 44 and which they confirmed was registered to Bragg’s girlfriend. Based on the totality of this sworn information, the magistrate found probable cause and issued a search warrant for lot no. 44, which led to the discovery of the evidence at issue.

2. The question on appeal is whether the sworn testimony given to the magistrate, both oral and written, provided him a substantial basis for concluding probable cause existed to issue the search warrant. In determining probable cause, the magistrate’s task is “simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Because of the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant, substantial deference is accorded the magistrate’s finding of probable cause, and doubtful or marginal cases should be largely determined in favor of finding the warrant valid.

Beyond the vague and conclusory reference to No. 1 being “reliable,” the testimony here gave the magistrate little basis for independently determining the veracity of the informants. Even though some statements of the informants may have been against their penal interest, the “statement against interest” rule does not give credence to statements made by unnamed informants, i.e., informants whose identities are not disclosed to the magistrate, as here. But “[e]ven if an officer cannot provide information regarding the veracity of an informant or the basis of his knowledge, a tip may be proved reliable if portions of the tip are sufficiently corroborated.” Meaningful corroboration requires the information to include a range of details relating to future actions of third parties not easily predicted.

Here the information from the two informants was sufficiently corroborated and showed in part the basis of their knowledge. No. 1 predicted that No. 2, then an unknown third party, would come to his residence, pick up the money, and go and buy cocaine from lot no. 44. The police observed No. 2 arrive at No. l’s residence, meet with No. 1, drive to lot no. 44, stay a few minutes, and then leave. The police then stopped No. 2 and found him with cocaine. No. 2 then corroborated No. l’s statements, confirming he had just purchased the cocaine from Bragg at lot no. 44 and that he had purchased cocaine there at least 100 times before. No. 2’s statements about the recent purchase were consistent with police observations and the physical evidence. Police also confirmed No. l’s statement that Bragg drove a white Mustang car, which they saw at lot no. 44 and which they determined was registered to Bragg’s girlfriend.

3. Citing Robertson v. State, Bragg contends that the failure of the affiant officer to inform the magistrate of a promise made to No. 2 regarding receiving favorable treatment if he cooperated deprived the magistrate of the opportunity to independently determine the reliability of that informant. This argument is without merit for two reasons.

First, as found by the trial court, the only omitted information was that the officers told No. 2 they could make no promises, but that they would nevertheless make his cooperation known to the district attorney and that he might receive favorable treatment thereby. This is a far cry from the information omitted in Robertson, in which police failed to inform the magistrate of the informant’s criminal background, his pending DUI charge and the possible revocation of his probation or parole, his approaching police about giving information if they would help him with the DUI charge, their response that they would make the judge aware of his cooperation and assistance, and the informant’s personal animosity toward the defendant. The information omitted in Robertson was highly material because it revealed the informant’s motivation to lie or exaggerate to protect himself. Here, however, the police expressly informed the magistrate of the pending charges against No. 2.

Decided April 30, 2001

Lee Sexton, for appellant.

? R. Joseph Martin III, District Attorney, J. Barclay Black, Assistant District Attorney, for appellee.

Second, even if the omitted information were material and were included in the affidavit, it was more than offset by the independent corroboration of criminal activity. Thus, the magistrate still had sufficient information to find that probable cause existed.

The trial court did not err in denying the motion to suppress.

Judgment affirmed.

Andrews, R J, and Eldridge, J., concur.

       OCGA § 16-13-31 (a) (1).

       OCGA § 16-13-30 (b), (j) (1).

       OCGA § 16-13-30 (b).

       OCGA § 16-11-106 (b) (4).

        Mitchell v. State, 239 Ga. App. 735 (1) (521 SE2d 873) (1999), citing Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

        Pettus v. State, 237 Ga. App. 143, 144 (2) (514 SE2d 901) (1999) (“It is well established that the trial court may consider oral testimony presented to a magistrate in support of the issuance of a warrant. [Cit.]”).

        DeYoung v. State, 268 Ga. 780, 787 (7) (493 SE2d 157) (1997).

       (Citation and punctuation omitted.) Id.; see Mitchell, supra, 239 Ga. App. at 736 (1).

        State v. Henderson, 271 Ga. 264, 269-270 (4) (517 SE2d 61) (1999); DeYoung, supra, 268 Ga. at 787 (7); accord State v. Towe, 246 Ga. App. 808, 811 (1) (541 SE2d 423) (2000); Mincey v. State, 180 Ga. App. 898, 900 (1) (350 SE2d 852) (1986).

        State v. Wesson, 237 Ga. App. 789, 791 (516 SE2d 826) (1999); see Bellamy v. State, 243 Ga. App. 575, 578 (1) (b) (530 SE2d 243) (2000); compare Tomlinson v. State, 242 Ga. App. 117, 119 (527 SE2d 626) (2000) (applying the “statement against interest” rule to a statement by a named informant, court distinguishes cases involving unnamed informants).

       (Citations omitted.) Wesson, supra, 237 Ga. App. at 791; accord Bellamy, supra, 243 Ga. App. at 578 (1) (b); Burgess v. State, 232 Ga. App. 441, 444 (1) (502 SE2d 303) (1998); see Munson v. State, 211 Ga. App. 80, 82 (438 SE2d 123) (1993).

       Wesson, supra, 237 Ga. App. at 791.

       236 Ga. App. 68, 70 (510 SE2d 914) (1999).

       Id. at 69-70.

        Brown v. State, 244 Ga. App. 440, 441-442 (1) (535 SE2d 785) (2000).


source: Caselaw Access Project

license: Public Domain

text:
    A01A0157.
    BRAVO v. THE STATE.
    (548 SE2d 129)
   Miller, Judge.

Convicted of DUI and speeding, William James Bravo appeals on two grounds: (1) the court erred in admitting his refusal to take field sobriety tests, and (2) the court erred in failing to give his requested charge that his refusal to take a chemical test was not alone sufficient to convict him of DUI. Since Bravo was not in custody at the time the officer requested the field sobriety tests, no Miranda warnings were required, and thus his refusal was admissible. And since the court’s overall charge on the permissive inference arising from his refusal to take a chemical test was substantially accurate and complete, the requested charge, which was inapt, was unnecessary. Thus, we affirm.

An officer observed Bravo going 70 mph in a 55-mph zone and pulled him over. When he spoke to Bravo, the officer smelled a strong odor of an alcoholic beverage on Bravo’s breath, saw Bravo’s bloodshot, watery eyes and Bravo’s unsteadiness on his feet, and heard Bravo slur his speech and become argumentative. The officer requested Bravo take some field sobriety tests, which Bravo refused. Concluding that Bravo was intoxicated to the extent that he was a less safe driver, the officer arrested Bravo and, after reading him the applicable implied consent warning set forth in OCGA § 40-5-67.1 (b), asked Bravo to take a chemical breath test, which he refused.

Bravo moved in limine to exclude the testimony about his refusing to take the field sobriety tests, which the court denied. Based on the above evidence as well as the testimony of two additional witnesses who observed Bravo exhibit distinct signs of intoxication at the police station that day, the jury found Bravo guilty of DUI and speeding.

1. Evidence that an accused, who was not in custody at the time, refused to take field sobriety tests is admissible in a trial for DUI. Bravo’s challenges to this evidence as violative of his right to remain silent as set forth in the Fifth Amendment, the Georgia Constitution, or OCGA § 24-9-20 (a) are ineffectual since he was not under arrest and therefore the protections afforded by these provisions did not attach.

2. The court charged the jury that a defendant’s refusal to take a requested chemical test “may be considered as positive evidence creating an inference that the test would show the presence of alcohol. However, such an inference may be rebutted.” Bravo claims error in the trial court’s failing to give his requested charge that his refusal to take the requested breath test could not alone serve as the basis for a DUI conviction. Bravo contends that because the court gave the jury a mandatory inference, the absence of the requested charge improperly shifted the burden of proof to him.

Bravo’s premise is faulty. The charge given by the court involved a permissive, not a mandatory, inference. Instructing a jury that they “may” infer the presence of alcohol is far different from an instruction that such fact “shall” be inferred. Such permissive language does not impermissibly shift the burden of proof. The court here also instructed the jury that the burden of proof rested upon the State to prove every material element of the charged crimes and that not only did the defendant bear no burden of proof but that the burden never shifted to the defendant to prove his innocence. “Accordingly, we disagree with appellant’s assertion that the contested charge shifted the burden of proof to him.”

Decided April 30, 2001

Michael E. Bergin, for appellant.

Carmen Smith, Solicitor-General, Jody L. Peskin, Fay I. McCormack, Assistant Solicitors-General, for appellee.

Moreover, Bravo’s requested charge contained a reference to “legal consequences of a civil nature against a person for the refusal,” which was inapplicable to the present case. “A requested charge must be legal, apt, and precisely adjusted to some principle involved in the case and be authorized by the evidence. If any portion of the request to charge fails in these requirements, denial of the request is proper.”

In view of the court’s overall charge, the court did not err in refusing to give the requested charge.

Judgment affirmed.

Andrews, P. J, and Eldridge, J., concur.

       OCGA § 40-6-391 (a) (1).

       OCGA § 40-6-181 (b) (5).

       OCGA § 40-6-392 (d); Forsman v. State, 239 Ga. App. 612, 613 (3) (521 SE2d 410) (1999); Turner v. State, 233 Ga. App. 413, 416-417 (1) (b) (504 SE2d 229) (1998); compare Mackey v. State, 234 Ga. App. 554, 556 (507 SE2d 482) (1998) (refusal to consent to a warrantless search of defendant’s vehicle is quite different and is not admissible to show guilty knowledge).

        Keenan v. State, 263 Ga. 569, 571-572 (2) (436 SE2d 475) (1993); see Forsman, supra, 239 Ga. App. at 613 (3); Turner, supra, 233 Ga. App. 416 (1) (b); see generally Lyons v. State, 244 Ga. App. 658, 662 (2) (535 SE2d 841) (2000) (generally “no Miranda warnings are required while the investigating officer conducts preliminary questioning or field sobriety tests. . . .”) (citations and punctuation omitted).

       Cf. Brinson v. State, 232 Ga. App. 706, 707 (503 SE2d 599) (1998) (physical precedent only) (refusal to submit to urine test was alone insufficient to sustain conviction for driving under the influence of drugs).

        Ellerbee v. State, 215 Ga. App. 102, 104-105 (5) (449 SE2d 874) (1994).

       Id.; see Parks v. State, 180 Ga. App. 31, 32 (3) (348 SE2d 481) (1986).

        Drake v. State, 272 Ga. 797, 799 (2) (537 SE2d 336) (2000).

       (Punctuation and footnotes omitted; emphasis in original.) Lane v. State, 268 Ga. 678, 680 (2) (492 SE2d 230) (1997).

       See White v. State, 233 Ga. App. 276, 279 (4) (503 SE2d 891) (1998).


author: Ruffin, Judge.

text:
    A01A0311.
    In the Interest of M. L. C., a child.
    (548 SE2d 137)
   Ruffin, Judge.

The father of M. L. C. appeals the juvenile court’s order finding the child deprived and awarding temporary custody to the Georgia Department of Human Resources, acting through the Worth County Department of Family & Children Services (“DFACS”). Because we agree with the father that there is insufficient evidence supporting the juvenile court’s order, we reverse.

1. As a threshold matter, the father asserts that the juvenile court’s order should be vacated because it failed to recite sufficient facts necessary to confer personal and subject matter jurisdiction upon the court. We disagree.

In support of his assertion, the father relies on the general rule that “a juvenile court is a court of special and limited jurisdiction, and its judgments must show on their face such facts as are necessary to give it jurisdiction of the person and subject matter.”

In this case, the court’s order reflects on its face that it was addressing the alleged deprivation of M. L. C., and juvenile courts clearly have subject matter jurisdiction over deprivation petitions. As for personal jurisdiction, this is an issue that can be waived, and because the father has not shown that he raised the matter below, we deem it waived on appeal.

2. We do agree with the father, however, that there is insufficient evidence supporting the juvenile court’s conclusion that M. L. C. is deprived. Under Georgia law, a child is deprived if the child “[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals.” On appeal from a juvenile court’s order finding deprivation, we review the evidence “in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the (child was) deprived.” The “clear and convincing” standard should not be discounted.

This standard of review safeguards the high value society places on the integrity of the family unit and helps eliminate the risk that a factfinder might base his determination on a few isolated instances of unusual conduct or idiosyncratic behavior. Only under compelling circumstances found to exist by clear and convincing proof may a court sever the parent-child custodial relationship.

In this case, DFACS contended that M. L. C. was deprived because of alleged “substance abuse problem [s] suffered by [the mother and father] . . . which fuel domestic violence.” The evidence presented at the deprivation hearing established that the mother has a history of abusing prescribed medications. In fact, DFACS first became involved with M. L. C.’s family in August 1999, when police found the mother on a roadside, “apparently incoherent” from some form of drug. In October 1999, the mother and father were involved in an automobile accident. The mother broke numerous bones and was prescribed medication for her pain. The mother admitted to a family therapist that she “had a problem with prescription pain killers,” and her physician drastically reduced the amount of prescribed medication after learning that she was abusing the medication. The mother further acknowledged in court that she had been hospitalized once for her drug use and four times for depression, the last time being around 1997.

Evidence of the father’s drug use showed that he was 42 years old at the time of the hearing, and he admitted that he started smoking marijuana when he was 16, but claimed that he had now quit. DFACS first became concerned about the father’s drug use following the August 1999 incident when police found the mother incoherent on the roadside. At the time, the mother and father were separated, and the mother informed DFACS that she was worried about M. L. C. being with her father because he used cocaine and marijuana. Based on the mother’s allegation, DFACS established a safety plan for M. L. C. that placed the child with another family until the father could be tested for drug use. The father agreed to the plan, and after he tested negative for drugs, DFACS returned M. L. C. to him. As part of the safety plan, the father agreed to continue being tested for drug use. From August 1999 until February 2000, the father was screened for drug use at least once per month, and each time the results were negative. In March 2000, however, the father tested positive for using marijuana. From that point until the deprivation hearing in July 2000, the drug screens yielded negative results.

In addition, the evidence showed that the father, who is disabled due to a degenerative bone disease, takes large quantities of prescription pain medication for his condition. And, as a consequence of the October 1999 automobile accident, the father broke three bones in his neck, and his physician prescribed additional medication.

There is little evidence of record indicating how the parents’ drug use affected M. L. C. A therapist testified that M. L. C. told him that “she would like to see her father stop taking drugs and her mother stop taking so many pills.” The father acknowledged that he had talked to M. L. C. about marijuana, informing her that he had used it and that it was “a bad habit and it was not something that [he] wanted her to do.” The father farther testified that he had never used marijuana around M. L. C. According to the father, when he told M. L. C. that he failed the drug test in March 2000, “it hurt her feelings.”

Evidence of domestic violence revealed that on March 15, 2000, the mother and father had a violent altercation in the family’s home. That morning, after M. L. C. left for school, the mother told the father she was leaving him, and he responded that if she left, he was going to sell her wedding band to “catch the house payments up.” When the mother started “raking everything off the dressers and turning over stuff,” the father attempted to call a DFACS caseworker. Because the mother repeatedly tried to take the phone away from him, the father grabbed “her by the arm trying to hold her back,” apparently leaving “marks” on her arm. The caseworker testified that she received a message on her telephone answering machine indicating that the mother and father were having a violent verbal altercation and that another caseworker who went to the house found “marks” on the mother’s arm. Based on this incident, the juvenile court found that M. L. C. was in “imminent risk,” and DFACS removed the child from the home that day.

The only other evidence of family violence showed that at some point in the past the father had called the police after the mother threw a glass of tea in his face. The father also testified that they have “had about three [fights] in these last 15 years.”

Finally, the evidence showed that at the time of the deprivation hearing, M. L. C. was ten years old and in the fifth grade. The mother testified that M. L. C. had been on the honor role at school since kindergarten, that she missed school only when she was sick, and that she never had any discipline problems at school. M. L. C. stated that she wanted her mother to get her life together and stop taking so many pills and that she wanted her father to tell the truth, “like that drug test where he said he didn’t use any but he did.”

A neighbor, whose child played with M. L. C. before M. L. C. was removed from the family home, testified that the mother and father are “great parents.” Likewise, a former neighbor who also had a child that played with M. L. C. testified that the mother and father were “wonderful” parents and that she was unaware of any domestic violence in the home.

Based on this evidence, the juvenile court found that M. L. C. was deprived. Several of the court’s factual findings appear to be without support in the record and need to be addressed. The court found that the March 2000 altercation between the mother and father “started when [M. L. C.] was present in the home, but concluded after [M. L. C.] left for school.” The evidence does not support this finding. Instead, the evidence clearly shows that although the mother was upset with the father during the morning hours before M. L. C. went to school, they did not begin fighting until after M. L. C. left the house. There is no evidence that M. L. C. was present during this or any other altercation between the mother and father. Second, the court found that the father “admitted he smokes [marijuana] on a regular basis.” Although the father admitted that he pre viously smoked marijuana, at the hearing he testified that he had smoked marijuana only once in the preceding ten months, and the evidence showed that he was tested at least monthly from August 1999 until July 2000 and failed only one of these tests. Finally, the court found in its order that the “father has a problem with abuse of prescription drugs.” The judge’s comments at trial reflected a similar concern:

I don’t care whether you got them from the doctor or whether you got them from your friendly drug salesman down the street. That child sees folks abusing drugs. And I’m sorry for your medical condition, but I’m going to see how much you want to change. I’m going to give the Department custody. You say you want to get her back. . . . You’re going to have to give up those drugs.

Though it cannot be disputed that the father takes large quantities of prescription pain medication, there is no evidence that he abuses that medication, and we are troubled that the juvenile court so quickly dismissed the fact that these medications were prescribed by the father’s physician for what is obviously a painful and debilitating condition. Moreover, there was no evidence that the father’s use of this medication rendered him unfit to provide for the needs of M. L. C.

Although we do not condone the mother’s abuse of prescription drugs or the father’s use of marijuana, the evidence does not clearly and convincingly establish that M. L. C. is deprived. Rather, it is uncontroverted that the parents, despite their problems, have taken care of M. L. C. The most that can be said is that M. L. C., like the juvenile court judge, wishes her mother would stop abusing prescription drugs and that her father would tell the truth about using marijuana. Evidence showing that M. L. C. is a good student and a well-adjusted child who recognizes the pitfalls of drug use attests to the fact that her basic physical, mental, and emotional needs have been met. Furthermore, although the parents have had three relatively violent confrontations in fifteen years, there is no evidence that M. L. C. was present during the altercations or that she was otherwise affected by them. Under these circumstances, the trial court erred in finding M. L. C. deprived and in awarding temporary custody to DFACS.

Judgment reversed.

Johnson, P. J., and Ellington, J., concur.

Decided April 30, 2001.

Farkas & Ledford, Leonard Farkas, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, Simpson & Cross, Melanie B. Cross, for appellee.

       (Punctuation omitted.) In the Interest of S. K. L., 199 Ga. App. 731, 734 (2) (c) (405 SE2d 903) (1991).

       See OCGA § 15-11-28 (a) (1) (C).

       See S. K. L., supra at 734 (2) (b).

       OCGA § 15-11-2 (8) (A).

        In the Interest ofB. M. B., 241 Ga. App. 609 (527 SE2d 250) (1999).

        In the Interest ofC. D. K, 248 Ga. App. 756, 761 (1) (546 SE2d 837) (2001).

       See id.

       See In the Interest of D. E. K., 236 Ga. App. 574, 577-578 (512 SE2d 690) (1999).


text:
    A01A0373.
    SPARAGON v. STATE OF GEORGIA.
    (548 SE2d 118)
   Miller, Judge.

In March 2000, Judd A. Sparagon commenced this contract action, seeking to recover on a Uniform Series Gold Bond approved on October 17, 1870, whereby the State of Georgia acknowledged itself indebted to the bearer in the sum of $1,000, which sum it promised to repay on demand, on the first day of December 1894, with interest payable at seven percent. The State admitted that it refused Sparagon’s 1995 demand for payment and moved to dismiss solely upon the statute of limitation applicable to bonds and other instruments under seal. The trial court concluded that any right of action to recover the debt represented by the bond accrued on December 2, 1894, and granted the State’s motion to dismiss.

On appeal, Sparagon argues the applicable statute of limitation was not triggered until he made his 1995 demand for payment as the bearer and so the instant action is timely. We affirm the dismissal because the claim is untimely.

1. In Georgia, “[a]ctions upon bonds or other instruments under seal shall be brought within 20 years after the right of action has accrued. No instrument shall be considered under seal unless so recited in the body of the instrument.” The gold bond at issue recites that it is attested to under the Seal of the State of Georgia, and so the trial court correctly concluded that the applicable limitation period is that for instruments under seal, namely, 20 years “after the right of action has accrued,” under OCGA § 9-3-23.

2. Relying on Smith v. Early, Sparagon urges that, unlike with ordinary promissory notes governed by OCGA § 11-3-118 (b), an actual demand for payment and subsequent refusal to pay are necessary to start the limitation period against the State bond payable “on demand.” He reasons that no right of action accrues until a breach of the contractual obligation occurs and argues that no breach occurred until the State refused his demand in 1995. We disagree.

Smith v. Early involved an unwritten agreement whereby money was advanced and invested in a business, and it was not contemplated by the parties that the money “would be repaid at any specific time, or that a demand for repayment. . . would be made until some indefinite time in the future. . . ” Thus, because of those two factors evincing the intent of the parties (ho express maturity date and the mutual expectation that any demand for repayment would be deferred indefinitely), this Court ruled that the limitation period did not run until an actual demand for payment was made. Whatever continuing vitality exists for the rule applied in Smith v. Early that rule is not applicable here.

This gold bond is a written debt instrument with an express maturity date of December 1, 1894. “The Statute of Limitation [ ] was not enacted to protect persons from claims, fictitious in their origin, but from ancient claims, whether well or ill founded. . . ” The applicable statute of limitation begins to run on any given claim on the date the claim accrues — in other words, on the date that suit on the claim can first be brought to a successful result. As to when the right accrues, we discern no meaningful distinction between a bond on the one hand and a promissory note under seal on the other hand. A “bond” is a sealed writing containing an obligation to “pay a fixed sum of money, at a definite time, with a stated interest. . . ” A “promissory note” is the maker’s unconditional written promise to pay a sum certain to the bearer or a designated person.

The Supreme Court of Georgia has previously used the maturity date of debt instruments under seal as the commencing point for when a right of action accrues for purposes of the 20-year statute of limitation. This is because the promise to repay the debt was enforceable either by suit or demand after the maturity date. In our view, no actual demand and subsequent refusal were required in order to accrue the right of action on a matured debt instrument. To hold otherwise would only reward the lassitude of the bearer. Thus, all other things being equal, the bearer of this gold bond could have successfully sued for repayment starting on the day after maturity. The trial court correctly concluded that the OCGA § 9-3-23 twenty-year limitation period started to run on December 2, 1894, and so ended no later than December 2, 1914. It follows that Sparagon’s claim initiated in March 2000 is untimely and that the trial court correctly dismissed the action.

Decided April 30, 2001.

Robert H. Putnam, Jr., for appellant.

Thurbert E. Baker, Attorney General, Daniel M. Formby, Deputy Attorney General, Warren R. Calvert, Senior Assistant Attorney General, Anthony J. Musto, Assistant Attorney General, for appellee.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

       “This type of bond existed until 1933, when the U. S. monetary system abandoned the gold standard.” Black’s Law Dictionary (7th ed. 1999), p. 173.

       OCGA § 9-3-23.

       See Hixon v. Woodall, 246 Ga. 758, 759 (272 SE2d 727) (1980).

       60 Ga. App. 506, 511 (3 SE2d 913) (1939) (where parties do not stipulate a fixed time for payment but agree that money is payable only upon a demand in fact therefor, the statute of limitation does not begin to ran until an actual demand).

       (Punctuation omitted.) Id. at 507.

       Id. at 511 (on motion for rehearing).

       See Johnson v. Hodge, 223 Ga. App. 227, 229 (1) (477 SE2d 385) (1996).

       (Citation and punctuation omitted.) Dickinson v. McCamy, 5 Ga. 486, 488 (2) (1848).

        Hoffman v. Ins. Co. of North America, 241 Ga. 328, 329 (245 SE2d 287) (1978).

       Black’s Law Dictionary, supra, p. 169 (1).

       (Citation and punctuation omitted.) Id. at 169 (2).

       Id. at 1086.

        Bonner v. Metcalf, 58 Ga. 236, hn. 1 (1877) (promissory note); Stansell v. Corley, 81 Ga. 453, 457 (2) (8 SE 868) (1888) (acknowledgment of debt under seal); Elrod v. Bagley, 150 Ga. 329, 332 (3) (103 SE 841) (1920) (promissory note). Compare Persons v. Dallas, 178 Ga. 778, hn. 1 (174 SE 699) (1934) (in deed under seal where grantee acknowledged debt, grantor’s rights in action accrued upon delivery and acceptance of deed).

        Harris a Stribling, 66 Ga. App. 321, 323-324 (17 SE2d 766) (1941). Accord Blitch v. Brewer, 83 Ga. 333, 335 (9 SE 837) (1889).

       We express no opinion whether the General Assembly’s legislative repudiation of these Reconstruction Era bonds through Ga. L. 1875, pp. 24-28 and Ga. L. 1877, p. 24, codified into the Ga. Const, of 1877, Art. VII, Sec. XI, Par. I, is enforceable in light of Art. I, Sec. 10, Clause I of the U. S. Constitution (“No State shall. . . pass any . . . Law impairing the Obligation of Contracts.”), but only note that such an anticipatory breach would establish a cause of action. McLeod v. McLatcher, 201 Ga. App. 17, 19 (410 SE2d 144) (1991). In our view, that breach would start the running of the limitation period as early as 1877.


author: Johnson, Presiding Judge.

text:
    A01A0378, A01A0379.
    TRONITEC, INC. v. SHEALY et al.; and vice versa.
    (547 SE2d 749)
   Johnson, Presiding Judge.

On January 5, 1998, Tony Shealy, Jarrett Black and Rodney Smith resigned their positions with Tronitec, Inc. and started a competing business, Freedom Electronics, Inc. (“FEI”). Tronitec and FEI repair and sell circuit boards used in gas station fuel pumps. On November 20, 1998, Shealy, Black, Smith and FEI sued Tronitec and one of its salesmen, Timothy Arrington, for tortious interference with contract and slander, among other things. Tronitec counterclaimed for misappropriation of trade secrets, injunctive relief, breach of duty of loyalty, conversion, theft and violation of the Georgia Racketeer Influenced & Corrupt Organizations (RICO) Act.

In its September 16, 1999 order, the trial court denied Tronitec’s motion for summary judgment on Shealy, Black, Smith and FEI’s slander claim. In its October 29,1999 order, the trial court ruled that Tronitec’s counterclaims were compulsory. The trial court also granted Shealy, Black, Smith and FEI partial summary judgment on Tronitec’s misappropriation counterclaim and granted summary judgment to Shealy, Black, Smith and FEI on Tronitec’s claims for injunctive relief, conversion, theft and violation of the Georgia RICO Act. In Case No. A01A0378, Tronitec appeals the October 29, 1999 order, including in its enumeration of errors the trial court’s September 16, 1999 denial of its motion for summary judgment on Shealy, Black, Smith and FEI’s slander claim. Shealy, Black, Smith and FEI cross-appeal in Case No. A01A0379.

To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law.

Case No. A01A0378

1. Tronitec claims the trial court erred in denying its motion for partial summary judgment on Shealy, Black, Smith and FEI’s slander claim. We agree.

(a) In a threshold issue, Shealy, Black, Smith and FEI challenge Tronitec’s right to appeal because Tronitec was denied a certificate of immediate review for the September 16, 1999 order. But because Tronitec makes a direct appeal of the trial court’s October 29, 1999 order, it may appeal other orders in the case which may affect the proceeding below, including the earlier order denying summary judgment.

(b) Evidence shows that Arrington told an FEI customer, “something to the effect that Rodney Smith and the other Tronitec employees who formed [FEI] had, in effect, stolen customer lists from Tronitec prior to their resignation from Tronitec. . . .” Arrington “implied that other items of Tronitec property may also have been stolen. . . .”

Tronitec claims that Arrington’s statements do not constitute slander per se, as contended by Shealy, Black, Smith and FEI, because his comments were ambiguous and criminal activity was only inferred. Tronitec correctly notes that, “where the plain import of the words spoken impute no criminal offense, they cannot have their meaning enlarged by innuendo.” But the statements here are specific and do plainly impute a criminal offense. Theft of trade secrets, which may include customer lists, is a crime. Arrington’s alleged statements do not require innuendo or inference to amount to an accusation of a crime. Such an accusation constitutes slander under OCGA § 51-5-4 (a) (1).

(c) Tronitec argues that even if Arrington’s statements constituted slander, the evidence would not authorize a jury to find that it slandered Shealy, Black, Smith and FEI. We agree. An employer is not liable for the slanderous utterances of an employee acting within the scope of employment, unless it affirmatively appears the employer ordered or authorized the employee to make the statements.

Shealy, Black, Smith and FEI argue that Tronitec ordered or authorized Arrington to make the slanderous statements because Tronitec told Arrington that Shealy, Black, Smith and FEI had stolen the customer lists and because the statements made by Tronitec in its pleadings would be defamatory if not privileged. We fail to see how this reasoning demonstrates that Arrington made the slanderous statements on Tronitec’s order or authorization, as opposed to his independent volition. Shealy, Black, Smith and FEI can point to no evidence which would support their contention that Tronitec ordered or authorized Arrington to make the slanderous statements.

Although Shealy, Black, Smith and FEI urge us to follow Elder v. Cardoso, it appears that in Elder we failed to apply the holding in the then recent Lau’s Corp., when we required the movant to affirmatively show, in order to prevail in its motion for summary judgment, that it did not order its employee to make slanderous statements.

A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

In this case, Shealy, Black, Smith and FEI failed to present any evidence that Tronitec ordered or authorized Arrington’s statements. Thus, the trial court erred in not granting summary judgment to Tronitec on their slander claim.

2. Tronitec requested a ruling that its counterclaims were not compulsory; it maintains that it could dismiss without prejudice and then refile permissive counterclaims in another jurisdiction. Tronitec claims that the trial court erred by ruling that its counterclaims were compulsory. We disagree and affirm.

A counterclaim is compulsory “if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.”

Shealy, Black, Smith and FEI claimed that Arrington and Tronitec made slanderous accusations of theft. Tronitec’s counterclaims are based on allegations that Shealy, Black, Smith and FEI misappropriated Tronitec’s property. “The broad test to be applied in determining whether a counterclaim is compulsory is whether a logical relationship exists between the respective claims asserted by the opposing parties.” The logical connection between the claim and counterclaim is that both concern whether Shealy, Black and Smith improperly took Tronitec’s property when they left to form FEI.

Tronitec’s reliance on Bigley v. Mosser is misplaced. In Bigley, we found two slander claims unrelated because different factual inquiries were required in determining the truth or falsity of the statements. Here, there are common facts in determining the acts underlying the slander claim and Tronitec’s counterclaims.

3. In its counterclaim, Tronitec alleged that Shealy, Black, Smith and FEI had misappropriated Tronitec’s proprietary information and trade secrets, including customer lists. The trial court granted partial summary judgment to Shealy, Black, Smith and FEI with respect to the misappropriation of customer lists, finding that “there is no evidence that FEI’s customer list was derived from a tangible customer list of Tronitec.” Tronitec claims the trial court erred in its finding of partial summary judgment. We disagree and affirm.

The Trade Secrets Act maintains the common law distinction that while an employer’s customer lists were considered to be the employer’s property, a former employee’s knowledge of customer information was not. To prevail on its claim, Tronitec needs to show evidence that Shealy, Black and Smith left with tangible customer lists. This it cannot do.

Tronitec’s president testified that “[F] El’s prospect list. . . is the same style and organization as the Tronitec prospect list, and is a virtual duplicate of the Tronitec prospect list.” Other evidence shows that Smith had access to Tronitec’s prospect and customer computer database. But the inferences to be drawn from similarities in Tronitec’s and FEI’s prospect lists, or Smith’s access to the customer database, do not necessarily indicate a misappropriation of Tronitec’s customer list. Smith’s prior access does not imply a physical taking, and a similarity in the two lists would be expected if Shealy, Black and Smith compiled FEI’s prospect list using their knowledge of Tronitec’s customer base. The trial court correctly granted partial summary judgment to Shealy, Black, Smith and FEI with respect to Tronitec’s counterclaim of misappropriation of customer lists.

4. Tronitec claims the trial court erred in dismissing its claims for interlocutory and permanent injunctive relief. The trial court denied relief because it found (1) that Tronitec’s claim for injunctive relief had been heard and decided in an action in Cobb County and (2) because Tronitec waited 13 months after FEI had commenced business before bringing a claim for injunctive relief.

Tronitec argues that the trial court could not properly base its denial of injunctive relief on the Cobb County litigation because no certified copies of the pleadings or orders from the Cobb County court were filed. Accordingly, Tronitec argues, the trial court had no basis for recognizing the Cobb County proceeding. “In order to prove res judicata or collateral estoppel, a litigant must introduce those portions of the prior proceeding, duly certified, which are necessary to prove the defense.” Shealy, Black, Smith and FEI argue that Tronitec referenced the Cobb County proceeding in court filings and so waived the right to object to the failure to establish the Cobb County proceeding through certified documentation. Shealy, Black, Smith and FEI also claim that Tronitec cannot argue a failure to file certified copies of the Cobb County litigation for the first time on appeal. We agree.

Our review of the record shows the following. In a motion for summary judgment, Shealy, Black, Smith and FEI argued that a Cobb County proceeding filed February 25, 1999, was res judicata as to Tronitec’s demand for injunctive relief. In its response, Tronitec refers to a February 25, 1999 Cobb County action, which it describes as “essentially, involving the same claims” as this action. But Tronitec does not address Shealy, Black, Smith and FEI’s res judicata argument. Then, in their motion for partial reconsideration, which was granted by the trial court, Shealy, Black, Smith and FEI again make the argument that the Cobb County proceeding was res judicata to Tronitec’s injunction request and this time refer to an attached exhibit “C.” However, the appellate record shows no attachment to that motion.

We find that Shealy, Black, Smith and FEI presented an argument to the trial court based on a February 25, 1999 Cobb County action, but did not support the argument with certified copies of the action. However, Tronitec cannot fail to object to this defect before the trial court and then raise it now. By waiting to make this argument for the first time on appeal, Tronitec has waived it. Accordingly, we must affirm the trial court’s denial of Tronitec’s claims for injunctive relief.

5. Tronitec claims that the trial court erred in granting summary judgment in favor of Shealy, Black, Smith and FEI on Tronitec’s counterclaims for conversion and theft. The Trade Secrets Act generally supersedes conflicting tort, restitutionary or other laws providing civil remedies for misappropriation of trade secrets. The trial court found that Tronitec’s counterclaims for conversion and theft were superseded by the Trade Secrets Act. The trial court ruled correctly to the extent Tronitec’s counterclaims of conversion and theft were limited to trade secrets. However, the trial court erred in granting Shealy, Black, Smith and FEI summary judgment with respect to Tronitec’s counterclaim for conversion and theft of a personal computer by Smith. The computer is personal property and not a trade secret. Questions of fact remain as to its ownership.

6. Tronitec claims that the trial court erred in granting summary judgment on its RICO claim. In order to prevail on this claim, Tronitec is required to present clear and convincing evidence of a pattern of “racketeering activity” directed against it by Shealy, Black, Smith and FEI. Including the evidence regarding the computer theft and the evidence authorizing a jury to conclude that Shealy, Black, Smith and FEI misappropriated Tronitec’s trade secrets, as discussed in Division 7, Tronitec presented evidence of at least two instances of theft, which constitutes a racketeering activity.

The trial court found that Tronitec had failed to set forth clear and convincing evidence that Shealy, Black, Smith and FEI violated the Georgia RICO Act, as required by Simpson Consulting v. Bar-clays Bank.’But the question of whether evidence is clear and convincing is usually for the jury. We cannot say that, while there is evidence sufficient to allow a jury to find the predicate acts by a preponderance of the evidence, it is not clear and convincing evidence. The weight of the evidence will largely depend on witness credibility. “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, when he is ruling on a motion for summary judgment.” The trial court erred in granting Shealy, Black, Smith and FEI’s motion for summary judgment on Tronitec’s RICO claim.

Case No. A01A0379

In the cross-appeal, Shealy, Black, Smith and FEI claim the trial court erred in (1) partially denying their motion for summary judgment on Tronitec’s counterclaim for misappropriation of trade secrets, (2) denying their motion for summary judgment on Tronitec’s counterclaim for breach of loyalty and fraud, and (3) denying their claim for attorney fees under OCGA § 10-1-764.

7. The trial court found sufficient evidence to deny Shealy, Black, Smith and FEI’s motion for summary judgment on Tronitec’s counterclaim for misappropriation of trade secrets. Construed in favor of Tronitec as the nonmovant, the record shows that Tronitec developed a digital test station (“DTS”) and a digital station interface box (“DSIB”) for use in testing and repair of circuit boards. The DTS/ DSIB connects a personal computer to a malfunctioning electronic circuit board. Through Tronitec’s internally produced software, the computer assists in analyzing a circuit board, resulting in time and cost savings in its repair. Although the DTS/DSIB is assembled from commercially available parts,, it is uniquely wired and adapted, cost over $25,000 in development, and required 2,000 hours of research and engineering work to produce.

Shealy, Black, Smith and FEI maintain that Tronitec’s data, programs, devices, methods or techniques for repairing circuit boards, including the DTS/DSIB, are not trade secrets and that there is no evidence that any of Tronitec’s data, programs, devices, methods or techniques, including the DTS/DSIB, was misappropriated by Shealy, Black, Smith and FEI.

A trade secret is information, without regard to form, including “a compilation, a program, a device . . . which is not commonly known by or available to the public,” and which: “(A) [d]erives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (B) [i]s the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”

(a) Shealy, Black, Smith and FEI contend Tronitec’s DTS/DSIB is not a trade secret because it is composed of matters known by or available to the public. We disagree. The record indicates that there are functionally equivalent interface devices used by others in the circuit board repair industry and that the DTS/DSIB’s function could be reproduced through reverse engineering. But even if the function of Tronitec’s DTS/DSIB can be reproduced with a combination of commercially available components and reverse engineering, evidence shows that the actual system is unique to Tronitec. Evidence also shows that such testing systems are not generally available for purchase. Shealy, Black, Smith and FEI were not entitled to summary judgment on the grounds that the DTS/DSIB was publicly available.

(b) Shealy, Black, Smith and FEI contend Tronitec cannot show that it derives economic value by the DTS/DSIB not being generally known to other persons who can obtain economic value from its disclosure or use. They argue that there are hundreds of interface systems in the circuit board repair industry, that they all do the same thing and even if Tronitec’s DTS/DSIB is unique, the difference is not economically important. We again disagree.

The evidence shows that the industry is highly competitive and secretive and that its DTS/DSIB gives Tronitec a competitive advantage. A jury could conclude that Tronitec maintained this competitive advantage through keeping the information regarding its DTS/DSIB confidential. Shealy, Black, Smith and FEI were not entitled to summary judgment on the grounds that Tronitec derived no economic benefit from its circuit board diagnostic system not being generally known to other persons.

(c) Shealy, Black, Smith and FEI argue that Tronitec cannot show that it took reasonable efforts to maintain the secrecy of its DTS/DSIB. They point out that Tronitec allowed public tours of its facilities in which the DTS/DSIBs were on the shop floor in plain view. Shealy, Black, Smith and FEI also note that Tronitec had no confidentiality agreements protecting its purported trade secrets and that no more than locked doors protected the majority of company information.,

Tronitec points to evidence that access to its production floor and schematics was controlled and its DTS/DSIBs were covered in the presence of strangers. Testimony also indicates that even a skilled technician, upon viewing Tronitec’s testing equipment, could not duplicate its operation absent inspection of the internal circuitry. This would indicate that a casual viewing would not compromise the information’s secrecy. Evidence would support a jury finding that Tronitec took reasonable steps under the circumstances to protect the secrecy of its information.

Authority relied upon by Shealy, Black, Smith and FEI can be distinguished. In Stargate Software Intl. for instance, the employer ordered its employees to work for a competitor, thus necessarily divulging trade secrets. In addition, Equifax Svcs. v. Examination Mgmt. Svcs. is distinguishable because the information which had allegedly been misappropriated was in the form of a written list of foreign correspondents, and it was protected only by an unenforceable confidentiality agreement.

(d) Shealy, Black, Smith and FEI also argue that the record in this case, which was subject to a protective order at the trial court level, was originally transmitted by the trial court to this court unsealed, resulting in public disclosure destroying any trade secret status the information may have enjoyed. It appears that the appellate record was placed under seal at Tronitec’s request a few weeks after the appeal was filed.

The general view is that absolute secrecy is not required for information to retain trade secret status. Filing a trade secret with a governmental entity is not equivalent to its publication. And while court records may be available to the public, there is no general dissemination of such information. We decline to find that Tronitec’s information lost its trade secret status merely because it was left unsealed in a court file for a few weeks.

(e) Shealy, Black, Smith and FEI claim that Tronitec cannot show that they misappropriated Tronitec’s trade secrets or otherwise obtained Tronitec’s information by improper means. They argue that reverse engineering or other independent development is not considered improper means and that FEI’s systems, devices, methods and other information used in its circuit board repair business were fairly acquired.

We find, however, that theré is sufficient circumstantial evidence that Shealy, Black, Smith and FEI misappropriated Tronitec’s trade secrets to withstand their motion for summary judgment. Tronitec’s expert testified that he reviewed FEI’s and Tronitec’s DSIBs and concluded that they were virtually identical. A Tronitec officer testified that based upon his observation of FEI’s DSIB and his knowledge of Tronitec’s DSIB, that FEI’s DSIB was a copy of Tronitec’s DSIB. This evidence would authorize a jury to conclude that Shealy, Black, Smith and FEI had misappropriated Tronitec’s DSIB.

Evidence shows that from its first day of operation, FEI offered to repair over 100 circuit boards, although there is testimony that over 2,000 hours of technical work would be required to independently develop the testing procedures and schematics to repair those circuit boards. Evidence also shows that, within 90 days of commencing business, FEI was able to repair and ship “vapor-vac motors,” a repair ability that had taken Tronitec a year of research to accomplish. There is evidence that FEI acquired the ability to perform commercially competitive circuit board repairs faster than was reasonably possible by independent effort, and a jury could infer from circumstantial evidence that FEI acquired the ability to make the repairs from Tronitec information.

Circumstantial evidence may be sufficient to defeat a motion for summary judgment. In the face of direct evidence, “if the other fact is circumstantial evidence, it must be inconsistent with the defendant’s evidence, or if consistent, it must demand a finding of fact on the issue in favor of the plaintiff.” Testimony by Shealy, Black and Smith that they did not take Tronitec information is not direct evidence sufficient to avoid the inference of misappropriation. The trial court correctly denied partial summary judgment to Shealy, Black, Smith and FEI on Tronitec’s counterclaim for misappropriation of its trade secrets.

8. Shealy, Black, Smith and FEI argue that the trial court erred in denying their motion for summary judgment on Tronitec’s claim for breach of duty. They maintain that Physician Specialists in Anesthesia v. Wil'dmon establishes that an employer has no claim for breach of duty against an at-will employee. But an employee who may bind his employer does have a fiduciary duty to his employer. There is evidence that, while employed by Tronitec, Smith held a managerial position and had the power to bind Tronitec in purchase agreements. Evidence shows that Smith identified 50 component parts available from a vendor at a favorable price while acting as a Tronitec purchasing agent and purchased 50 of them on his own account. A jury could conclude that Smith used his position with Tronitec for his personal gain to Tronitec’s injury. The trial court did not err in denying Shealy, Black, Smith and FEI’s motion for summary judgment on Tronitec’s counterclaim for breach of the duty of loyalty with respect to Smith. However, Tronitec has not come forward with evidence that Shealy, Black or FEI has breached a duty of loyalty, and the trial court erred by not granting summary judgment to Shealy, Black and FEI on this counterclaim.

9. Shealy, Black, Smith and FEI argue that the trial court erred in denying their claim for attorney fees under OCGA § 10-1-764. In denying their claim, the trial court noted that Shealy, Black, Smith and FEI had not prevailed, in part, in their motion for summary judgment on Tronitec’s claim for misappropriation. Under OCGA § 10-1-764: “If a claim of misappropriation is made in bad faith, a motion to terminate an injunction is made or resisted in bad faith, or willful and malicious misappropriation exists, the court may award reasonable attorneys’ fees to the prevailing party.”

Although we have found evidence of misappropriation sufficient to avoid summary judgment, a jury could still rule in favor of Shealy, Black, Smith and FEI on Tronitec’s claim for misappropriation and thus they may yet be the “prevailing party” within the meaning of the statute. Furthermore, upon hearing the testimony, the trial court could determine that there was bad faith on Tronitec’s part in making its claims for misappropriation and thus be authorized to award attorney fees to Shealy, Black, Smith and FEI under OCGA § 10-1-764. The trial court erred in granting summary judgment to Tronitec on Shealy, Black, Smith and FEI’s claim for attorney fees.

Decided April 11, 2001

Reconsideration denied May 1,2001

Mabry & McClelland, James T. Budd, Richard C. Freeman III, for appellant.

Lawrence E. Newlin, Frank R. Olson, for appellees.

Judgments affirmed in part and reversed in part.

Eldridge and Miller, JJ, concur.

       OCGA § 16-14-1 et seq.

       OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

        Southeast Ceramics v. EJem, 246 Ga. 294, 295 (1) (271 SE2d 199) (1980).

       (Citation omitted.) Parks v. Multimedia Technologies, 239 Ga. App. 282, 294 (520 SE2d 517) (1999).

       OCGA § 16-8-13.

       See Gillis v. American Gen. Life &c. Ins. Co., 222 Ga. App. 891, 892 (476 SE2d 648) (1996).

        Smith v. Trust Co. Bank, 215 Ga. App. 413, 416 (2) (450 SE2d 866) (1994). See also Desmond v. Troncalli Mitsubishi, 243 Ga. App. 71, 75 (3) (532 SE2d 463) (2000).

       See Desmond, supra.

       205 Ga. App. 144, 147 (421 SE2d 753) (1992).

       See Lau’s Corp., supra at 491.

       OCGA § 9-11-13 (a).

       (Citations omitted.) See Schoen v. Home Fed. Sav. &c., 167 Ga. App. 644, 645 (1) (307 SE2d 72) (1983).

       235 Ga. App. 583 (509 SE2d 406) (1998) (physical precedent only).

       Id. at 587.

       OCGA § 10-1-760 et seq.

        Avnet, Inc. v. Wyle Labs., 263 Ga. 615, 619 (2) (437 SE2d 302) (1993).

       See Bigley v. Mosser, supra.

       (Citations and punctuation omitted.) Bradley v. British Fitting Group, 221 Ga. App. 621, 622 (2) (472 SE2d 146) (1996).

        See Angelí v. Hart, 232 Ga. App. 222, 223 (2) (501 SE2d 594) (1998).

       OCGA § 10-1-767 (a).

       OCGA § 16-14-6 (c).

       OCGA §§ 16-14-4; 16-14-3 (8), (9) (A).

       See OCGA § 16-8-13.

       OCGA § 16-14-3 (9) (A) (ix).

       227 Ga. App. 648 (490 SE2d 184) (1997) (physical precedent only).

        Freeman v. Saxton, 240 Ga. 309, 310 (1) (240 SE2d 708) (1977).

       (Punctuation omitted.) Barber v. Perdue, 194 Ga. App. 287 (390 SE2d 234) (1989).

       OCGA § 10-1-761 (4).

       See Essex Group v. Southwire Co., 269 Ga. 553, 554-555 (1) (a) (501 SE2d 501) (1998).

       See Stargate Software Intl. v. Rumph, 224 Ga. App. 873, 876-877 (2) (482 SE2d 498) (1997).

        SeeAvnet, Inc. v. Wyle Labs., supra.

       Supra.

       216 Ga. App. 35, 39-40 (2) (453 SE2d 488) (1995).

       See, e.g., Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F3d 411, 418 (III) (A) (1999) (“While a number of cases have dealt with the disclosure of trade secrets in public court files, none holds that such disclosure, when unaccompanied by evidence of farther publication, automatically destroys the ‘secrecy of that secret.”).

       See Theragenics Corp. v. Dept. of Natural Resources, 244 Ga. App. 829 (536 SE2d 613) (2000) (filing of trade secret information with government agency, and thus malting it available to the public, does not cause loss of trade secret status).

       OCGA § 10-1-761 (1).

        Furlong v. Dyal, 246 Ga. App. 122, 123 (1) (539 SE2d 836) (2000).

        Michelin Tire Corp. v. Irving, 185 Ga. App. 783, 784 (1) (366 SE2d 156) (1988).

       See Quill v. Newberry, 238 Ga. App. 184, 188-190 (518 SE2d 189) (1999) (a defendant cannot simply deny his fraudulent conduct under oath and ask that any contrary circumstantial evidence simply disappear in the face of a sworn denial).

       238 Ga. App. 730 (521 SE2d 358) (1999).

        Physician Specialists has been distinguished on its facts. See Tom’s Amusement Co. v. Total Vending Svcs., 243 Ga. App. 294, 295-296 (2) (a) (533 SE2d 413) (2000) (physical precedent only).

       See Jennette v. Nat. Community Dev. Svcs., 239 Ga. App. 221, 223-224 (2) (520 SE2d 231) (1999).


author: Phipps, Judge.

text:
    A01A0627.
    HARPER v. COPELCO CAPITAL, INC.
    (548 SE2d 53)
   Phipps, Judge.

Copelco Capital, Inc. leased medical equipment to Men’s Focus Health Centers of Georgia, Inc. Dr. William Harper guaranteed rental payments under an amendment to the lease executed contemporaneously with the lease (the first amendment).

Copelco sued Men’s Focus and Harper for breach of their payment obligations. After obtaining a default judgment against Men’s Focus, Copelco moved for summary judgment against Harper. Harper opposed Copelco’s motion, on the ground that he had been released from his guaranty under an amendment to the lease entered into after the lease was executed (the second amendment). As proof, he submitted a photostatic copy of the second amendment.

Copelco responded by pointing to portions of Harper’s deposition in which he had testified that he did not specifically remember signing any of the lease documents and could not account for the original. The trial court refused to consider the photostatic copy based on lack of authentication and granted Copelco’s motion for summary judgment.

On appeal from a grant of summary judgment, we conduct a de novo review of the record. Because our de novo review reveals deposition testimony in which Harper provided his explanation of the circumstances surrounding execution of both amendments to the lease, made a showing of how he had obtained the copy of the second amendment, and gave a reason for his inability to produce the original, we reverse the grant of summary judgment to Copelco. The real issue in this case concerns the credibility of Harper’s evidence, and that is a matter for jury determination.

The 36-month lease is dated October 31, 1996. It bears signatures of Harper as the representative of Men’s Focus (and as guarantor of the lease) and of Donald Flassing as Copelco’s representative. The first amendment to the lease is also dated October 31, 1996. On both the lease and first amendment, Harper’s signature is dated October 31, 1996, and Flassing’s is dated November 25, 1996. The parties agree that in this amendment, Harper gave a $50,000 personal guaranty to continue in effect throughout the term of the lease. Copelco’s complaint charged Men’s Focus and Harper with defaulting in monthly rental payments beginning with the payment due in the twenty-fourth month of the lease.

Under the second amendment to the lease, Harper’s $50,000 personal guaranty terminated after the first 12 months of the lease. The second amendment bears signatures of Harper and Flassing which match the signatures on the earlier lease documents. Flassing’s signature is dated November 25, 1996, and Harper’s is dated December 7, 1996. By affidavit, a Copelco employee testified that the only amendment to the lease prepared and authorized by Copelco was the first amendment.

In parts of his deposition, Harper acknowledged that he did not recall details surrounding his execution of any of the lease documents or actually signing any of the lease documents. But he testified that he had refused to go forward with the transaction unless limitations were imposed on his personal liability in accordance with discussions of the parties, that the limitation contained in the first amendment was “the first shot back at it but to me that was not specific enough,” and that the parties later agreed to the terms set forth in the second amendment. Harper averred that he obtained the photostatic copy of the second amendment from Men’s Focus after this suit was brought and that he did not have the original because all of the original lease documents were in Copelco’s possession. Copelco acknowledges that its practice is to retain the original of all lease agreements and amendments.

1. (a) Copelco maintains that the photostatic copy Harper claims to be the second lease amendment is in fact a spurious document created by photocopying parts of the original while substituting other portions. In support of this claim, Copelco asserts that a comparison of the purported second amendment with the first amendment shows that the two documents were faxed at the same time, on the same date, and to the same telephone number. Our review of the documents in the record does not, however, substantiate this assertion.

(b) Relying on Durben v. American Materials, Copelco argues that Harper failed to authenticate the purported second lease amendment. Durben holds that pleadings from other cases must be certified to be admissible in evidence and that, until the foundation required by Georgia statute has been laid, documents purporting to be business records are inadmissible hearsay. Copelco’s reliance on Durben is misplaced. Georgia law does not require any particular foundation to be laid before contracts become admissible in evidence, and there are no certification requirements pertaining to contracts.

(c) The trial court in effect determined that the photostatic copy submitted by Harper is inadmissible under the best evidence rule and that there is inadequate proof of execution.

Although proof of execution of a writing is necessary, this may be done by circumstantial evidence. The best evidence rule generally requires production of the original of a writing, as primary evidence, rather than a photostatic copy, as secondary evidence, unless the original is shown to be unavailable for some reason other than the serious fault of the proponent. Stated another way, secondary evidence may not be admitted unless “it shall appear that the primary evidence for some sufficient cause is not accessible to the diligence of the party.” Although the questions of inaccessibility of primary evidence and diligence of the party are determinations within the discretion of the trial court, it is not the function of the court to determine the worthiness or credibility of the secondary evidence.

Decided April 19, 2001

Reconsideration denied May 2,2001

Walker, Hulbert, Gray, Byrd & Christy, Charles W. Byrd, for appellant.

Conoscienti, Storm & Kendall, Timothy W. Storm, Lisa A. Frank, for appellee.

It is undisputed that the photostatic copy of the document Harper claims to be the second lease amendment bears signatures which match those of the parties who signed the lease and first amendment. There are no telltale signs showing the photostatic copy to be a fabricated document. Through his deposition testimony, Harper has provided circumstantial evidence through which a jury could find that the parties in fact executed the second amendment to the lease. In addition, Harper has satisfactorily explained his inability to produce an original. The credit to be given to his testimony and to the document he has tendered are material issues of fact for a jury to determine.

2. There is no merit in Copelco’s argument that Harper’s failure to include a transcript of the summary judgment hearing precludes our review of the issues presented in this appeal.

As no evidence was presented at the hearing, and because there is no dispute concerning the basis of the trial court’s ruling and the legal positions advanced by the parties, the absence of the transcript does not hamper appellate review of the trial court’s decision.

3. There is no merit in Copelco’s argument that the document Harper claims to be the second lease amendment is not part of the record. It is in the record as an exhibit to Harper’s deposition. As there has been no trial, it was not necessary that it be tendered into evidence.

Judgment reversed.

Smith, P. J., and Barnes, J., concur.

        Maddox v. Southern Engineering Co., 231 Ga. App. 802, 803 (500 SE2d 591) (1998).

       At oral argument in this case, Harper’s attorney pointed out another part of Harper’s deposition in which he later testified that he signed the second amendment. Because Harper has thus given self-contradictory testimony without providing an adequate explanation, that portion of his testimony favorable to him must be eliminated. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28-30 (1), (2) (343 SE2d 680) (1986).

       232 Ga. App. 750 (503 SE2d 618) (1998).

       Id. at 752 (1).

        See Hall v. Simmons, 50 Ga. App. 634 (179 SE 272) (1935); see generally Davis v. First Healthcare Corp., 234 Ga. App. 744, 746 (1) (507 SE2d 563) (1998).

       See Bellamy v. State, 243 Ga. App. 575, 580 (3) (530 SE2d 243) (2000); All Risk Ins. Agency v. Southern Bell Tel. &c. Co., 182 Ga. App. 190, 193-194 (5) (355 SE2d 465) (1987).
      OCGA § 24-5-26 authorizes admission of a photostatic copy of a writing without accounting for the original if the photostatic copy is made in the regular course of business to preserve the writing. In a supplemental brief filed after oral argument, Harper has invoked OCGA § 24-5-26. His reliance on this Code section is unavailing. It has not been shown by the record that Copelco would have made a photostatic copy of the second lease amendment in the regular course of its business.

       OCGA § 24-5-2.

        Mulkey v. State, 155 Ga. App. 304, 307 (270 SE2d 816) (1980).

       See Miller v. Steelmaster Material Handling Corp., 223 Ga. App. 532, 534-535 (2) (478 SE2d 601) (1996).

       Compare Barber v. H & H Muller Enterprises, 197 Ga. App. 126, 129 (1) (397 SE2d 563) (1990).

        Everett v. Norfolk Southern R. Co., 218 Ga. App. 862, 863, n. 1 (464 SE2d 385) (1995).

        Luedtke v. Nat. Stor-All, 150 Ga. App. 93, 94 (2) (256 SE2d 672) (1979).


text:
    A01A0319.
    In the Interest of J. M. D. et al., children.
    (548 SE2d 454)
   Phipps, Judge.

The mother of J. M. D. and J. A. D. appeals the juvenile court’s order terminating her parental rights. She argues that the evidence was insufficient to show that the children’s deprivation likely would continue if her parental rights were not terminated. We disagree and affirm.

Before terminating parental rights, a juvenile court must find that there is present clear and convincing evidence of parental misconduct or inability and that termination would be in the child’s best interest. Parental misconduct or inability is present if (1) the child is deprived; (2) the deprivation is caused by the parent’s lack of proper parental care or control; (3) the deprivation is likely to continue or will not be remedied; and (4) continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child.

One factor relevant to determining whether a child is without proper parental care or control is whether the parent has “[a] medically verifiable deficiency of . . . physical, mental, or emotional health of such duration or nature as to render the parent unable to provide adequately for the physical, mental, emotional, or moral condition and needs of the child.” If the child does not live with the parent, the juvenile court also shall consider, among other things, whether the parent without justifiable cause has failed for one year or more to develop and maintain a meaningful, supportive parental bond with the child.

We review the juvenile court’s decision to determine whether, viewing the evidence in the light most favorable to the decision, any rational trier of fact could have found by clear and convincing evidence that the parent’s right to custody should be terminated.

So viewed, the record shows that the Department of Family & Children Services (DFACS) took custody of J. M. D. and J. A. D. in 1993 because their mother was “having a mental breakdown,” had nowhere to live, and had left the children on a street comer. In October 1993, the juvenile court found that the children, then age five and three, were deprived and granted temporary custody of them to DFACS. The court also ordered the mother to receive a psychological evaluation, undergo counseling, and complete a parenting class. The mother stipulated to DFACS’s custody petition and did not appeal the court’s order.

In two orders dated May 1995 and March 1997, the juvenile court extended DFACS’s custody of the children. The court found that the conditions of the children’s deprivation had not been alleviated, that the mother had a history of mental problems and was incapable of parenting, that she had failed to obtain treatment for her problems, that she had no home of her own, and that she had failed to provide support for the children. The mother did not appeal either order.

After a hearing in September 1998, the juvenile court entered a third order extending its original custody order and finding that the mother had made no progress in remedying the causes of her children’s deprivation. The order noted that the mother was not present at the hearing, that her whereabouts were unknown, and that she had failed to maintain regular contact with DFACS. The mother did not appeal this order.

After a hearing in April 1999, the juvenile court entered a fourth order extending custody. Although the court found that “the mother now has a home and a job,” it also found that she had failed to provide verification that she was receiving treatment for her mental health condition, that she had made no effort to be reunited with her children, that she had failed to visit or communicate with them on a regular basis, that she had not contacted or cooperated with DFACS, and that she had “abandoned the children.” The mother did not attend the hearing or appeal the order.

In January 2000, DFACS filed a petition to terminate the mother’s parental rights. In July 2000, the juvenile court heard the petition.

Dr. Hilary Slavin, a clinical psychologist, testified that he had evaluated the mother in 1993, 1995, 1999, and May 2000. He concluded that she suffered from a personality disorder with antisocial features. According to Dr. Slavin, such an individual

has long-standing chronic coping problems, does not learn well from experience, does not learn well from mistakes from the past, . . . can become overwhelmed by stress!,] . . . has limited frustration tolerance, poor impulse control, . . . tendency to be oppositional. Has trouble forming close relationships with other people. Behavior may be unpredictable and erratic and such.

He testified that someone with this diagnosis would not improve without receiving weekly psychotherapy over a period of years.

Dr. Slavin stated that during his May 2000 evaluation of the mother, she told him she had not received any treatment during the previous year and did not “feel as if she really had any problems.” He testified that there had been little change in the mother’s personality disorder since 1993 and that she had shown no capacity to improve her parenting skills. Due to her lack of motivation in pursuing treatment, Dr. Slavin opined that her prognosis was “quite guarded.”

Dr. Slavin also testified that he had evaluated the children and that they suffered from depression that was related, in part, to the mother’s inability to care for them. Dr. Kenneth Parker, a psychologist who treated the children, testified that the children’s behavioral problems were exacerbated by visits with the mother.

Irene Neely, the DFACS caseworker assigned to the family, testified that after the mother got a job and an apartment in 1999, DFACS tried to increase her visitations with the children. The children were scheduled to spend their Thanksgiving break with their mother, but, according to Neely, she failed to plan for the children’s arrival, said that she did not want to keep them for five days, and complained that DFACS had “dumped them on her.” After the visit, the children’s behavior deteriorated, and the mother did not try to arrange another visit for approximately three months. Neely also testified that she had asked the mother to shift her work schedule so that she could be home with her children in the evenings, but the mother had not done so. In addition, Neely stated that the mother had not paid any court-ordered child support since 1997.

With respect to the mother’s personality disorder, Neely testified:

I suggested she needed to get re-involved with mental health counseling. And her response to me was that they told her she didn’t have to go anymore. And my suggestion to her was that she, you know, really did need to go because that was part of the plan that was with the panel review and had been ordered by the court, and that she really did need to be involved in mental health counseling.

Neely testified that she was aware of no change in the mother’s mental health condition during the seven years the children had been in DFACS’s custody. Nevertheless, the mother told Neely that she had no problems.

The mother’s sister, with whom the children were placed for nearly five years, testified that she solicited the mother’s help in caring for the children, but the mother “just couldn’t get herself together to pitch in.” The mother never initiated any contact with her children, but the sister tried to arrange visitations. Once, the sister brought the children to their mother for the weekend, but the mother apparently “got overwhelmed” and took the children to DFACS. According to her sister, the mother is not capable of caring for the children without substantial help.

Finally, the children’s current foster mother testified that they are doing well in her home and that she would adopt them if given the opportunity.

The mother neither testified nor presented any witnesses on her behalf.

On appeal, the mother argues that the evidence failed to show any continuing parental inability. She points out that she has had a job and an apartment for the past three years. However, there was abundant evidence that she also has a medically verifiable mental health problem that makes her unable to parent adequately and that requires regular, long-term treatment. According to Dr. Slavin, the mother’s condition will not improve without treatment, yet she discontinued her treatment more than a year before the termination hearing and denied having any problem. Although she claims that her mental health counselor told her she did not need regular treatment, the fact remains that regular treatment had been recommended by the court-appointed psychologist, requested by the DFACS caseworker, and ordered by the court.

Moreover, the evidence failed to show any improvement in her parenting skills during the seven years that her children have been in the custody of DFACS. For the five years that the children lived with her sister, the mother failed to help with their care, did not initiate visits, and returned the children to DFACS during a weekend visit because she became overwhelmed. More recently, the mother has failed to prepare for visits and has scheduled them only erratically. In addition, she has not paid court-ordered child support for more than three years. In the words of her caseworker, the mother has taken no steps “to act like she really wants to provide for these children.”

Taking steps toward stability is not sufficient to avoid termination of parental rights if there is clear and convincing evidence of continuing parental inability. As there was such evidence here, the juvenile court was authorized to conclude that the children’s deprivation likely would continue if they were reunited with their mother, and that termination of her parental rights was in their best interests.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

Decided May 2, 2001.

Saunders P. Jones TV, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Laura W Hyman, Assistant Attorneys General, John C. Shelton, for appellee.

        In the Interest of J. M. M„ 244 Ga. App. 171 (534 SE2d 892) (2000).

       Id.; OCGA § 15-11-94 (b) (4) (A).

       OCGA § 15-11-94 (b) (4) (B) (i).

       OCGA § 15-11-94 (b) (4) (C) (i).

        In the Interest ofC. K, 245 Ga. App. 697 (538 SE2d 776) (2000).

       See In the Interest of J. W. H., 245 Ga. App. 468, 472-473 (5) (a) (538 SE2d 112) (2000) (testimony that father’s debilitating mental disorder was likely to continue supported finding that cause of child’s deprivation likely would continue).

       See In the Interest of J S. G., 242 Ga. App. 387, 389 (1) (529 SE2d 141) (2000) (termination was justified even though mother “made some progress on [the] goals” of reunification case plan because evidence showed she had personality disorder that rendered her unable to care properly for her children).


author: Ellington, Judge.

text:
    A01A0644.
    BIGGS et al. v. HERIOT et al.
    (549 SE2d 131)
   Ellington, Judge.

Kathryn and Ben Biggs d/b/a K. B. Construction, Inc. appeal the trial court’s order granting the application for final judgment filed by Kirk and Janet Heriot. The Heriots purchased a home built by the Biggses and later filed a demand for arbitration seeking damages for alleged construction defects. The arbitrator found in favor of the Heriots, and the award allowed the Biggses to pay the damages in monthly installments. The court confirmed the award by entering a consent order submitted by the parties which incorporated the arbitrator’s award. In their application for final judgment, the Heriots asserted the Biggses were in default of the award as confirmed in the consent order and sought a judgment on the remaining balance plus interest. The Biggses contend the trial court erred in granting the Heriots’ ex parte application for final judgment (1) without affording the Biggses notice and an opportunity to be heard; (2) based on an erroneous finding that the Biggses were in default; and (3) in an amount which allowed the collection of interest on the costs of the arbitration, in addition to interest on the principal amount of damages. Because the trial court erred in granting ex parte the Heriots’ application for final judgment, we reverse.

The Heriots contend the Biggses were not entitled to notice of their application for final judgment and a hearing because the arbitrator’s award provided that upon default and failure to cure default within the time allowed, “then the entire principal amount remaining shall be immediately due.” The Heriots further rely on language in the consent order confirming the arbitration award, as follows:

In the event [the Biggses] fail to fully comply with the [a]ward, then upon application by [the Heriots] and a showing that [the Biggses] have failed to so comply, a final judgment shall be entered in this matter in favor of [the Heriots] and against [the Biggses] for the full amount of the [arbitration] [a]ward left unpaid at that time.

The Heriots contend that “no hearing was required” by the terms of the award and the order. This court, however, does not sanction

the holding of ex parte hearings, except in the case of extraordinary matters such as temporary restraining orders and temporary injunctions. In other judicial hearings, both parties should be notified of the hearing with an opportunity of attending and voicing any objection that may be properly registered.

(Citation and punctuation omitted.) Anderson v. Fulton Nat. Bank, 146 Ga. App. 155, 156 (245 SE2d 860) (1978). See OCGA §§ 9-11-40 (b) (on reasonable notice to the parties, a trial court may try and determine issues for which a jury trial is not required or has been waived); 9-11-60 (f) (“Reasonable notice shall be afforded the parties on all motions.”).

In this case, the trial court accepted the Heriots’ averment that the Biggses violated the award and consent order by making payments after the first of the month without adding “accrued interest” to cure the default. The Biggses contend they complied with the provision in the award allowing them to cure a default by tendering payment by the fifteenth of the month. Even assuming default, the Biggses contend the Heriots calculated the award incorrectly by including interest not just on the principal amount of the award but also on the portion of the award representing costs of the arbitration proceedings. See OCGA § 9-12-10 (“No part of the judgment shall bear interest except the principal which is due on the original debt.”).

Due process requires a mechanism by which the court, rather than a litigant, determines based on objective information whether the litigant is entitled to the relief requested. See Killmaster v. Killmaster, 208 Ga. App. 449, 452 (2) (a) (430 SE2d 817) (1993). We hold the trial court erred in accelerating the debt and entering judgment without giving the Biggses an opportunity to object to the Heriots’ application and to present evidence and legal argument in support of their position. On this incomplete record, it is inappropriate for this court to consider whether the consent order, incorporating the arbitrator’s award, is ambiguous as to the method for curing a default and, if so, whether the Heriots correctly construed the agreement in declaring a default. Accordingly, we reverse the judgment and remand for further proceedings consistent with this opinion.

Judgment reversed and case remanded.

Johnson, P. J., and Ruffin, J., concur.

Decided May 2, 2001.

Wilson, Brock & Irby, James S. Teague, Jr., for appellants.

Carey, Jarrará & Walker, Theodore W Robinson, for appellees.


author: Smith, Presiding Judge.

text:
    A01A0072.
    FRAZIER v. THE STATE.
    (549 SE2d 133)
   Smith, Presiding Judge.

Shaun Frazier, alias Shaun Brown, Shun, and Anthony Green, and Bobby Spradley were indicted by a Chatham County grand jury on numerous charges arising out of an armed robbery on the streets of Savannah. The underlying facts may be found in co-defendant Spradley’s earlier appeal. Spradley v. State, 242 Ga. App. 340 (529 SE2d 647) (2000). Frazier was charged with two counts of armed robbery, possession of a firearm during the commission of a felony, criminal use of an article with an altered identification number (a bulletproof vest), and obstruction of a police officer. A jury convicted Frazier and Spradley on all counts. After filing and withdrawing one appeal, Frazier filed a motion for new trial, which was denied. He appeals, and we affirm.

1. Frazier contends the trial court erred in denying his Brady motion on the morning of trial. In his oral motion, Frazier requested that the trial court order the State to “check with” state “agencies” to see if witnesses for the State had any “drug involvement.” The prosecutor stated that she had questioned the witnesses regarding “any criminal history or any drug involvement and they have told me no repeatedly.”

While Frazier alleges that “several assistant district attorneys are housed in the CNT’s main office,” he has presented no evidence that any particular CNT member was “an integral part of the prosecution team” in this case or that the prosecutor had authority over him or her. Zant v. Moon, 264 Ga. 93, 100 (3) (440 SE2d 657) (1994). ‘Brady does not impose an affirmative obligation on the prosecution to seek out information for the defense, even if such information is more easily accessible to the prosecution than to the defense.” (Citations and punctuation omitted.) Ferguson v. State, 226 Ga. App. 681, 685 (3) (487 SE2d 467) (1997). We find no error in the trial court’s denial of Frazier’s motion.

2. Frazier next complains that the trial court erred in failing to grant his motion for mistrial following a portion of the prosecutor’s opening statement, contending that it placed his character in evidence. Referring to the bulletproof vest Frazier was wearing when he was apprehended, the prosecutor stated: “ [I]t was clearly a Savannah Police Department vest, but all of the labels had been ripped out of it so that you — it didn’t say Savannah Police Department anymore. And Detective Best will probably testify that they had a lot of problems with guys like him stealing their vests.” At this point, Frazier interposed his objection and motion for mistrial.

Frazier does not support this contention by citation of authority or argument as required by Court of Appeals Rule 27 (c). And his only argument addresses evidence of two prior convictions that are not in this record and appear to be unconnected with this case. It seems likely that a portion of an appellate brief in some other case was supercopied and reused for this appeal without making appropriate changes in the facts. This argument is unsupported by the record, and we will not consider it.

But even if Frazier had properly raised his appellate argument, his contention is without merit. Even if an opening statement by the State departs from “an outline of what the State expects admissible evidence will prove at trial ... a conviction will not be reversed if the State acted in good faith and if the trial court instructed the jury that the State’s opening statement is not evidence and has no probative value.” Bellamy v. State, 272 Ga. 157, 160 (5) (527 SE2d 867) (2000). Evidence was presented that all the labels and identification numbers had been “ripped off” the vest Frazier was wearing when he was arrested. A police officer testified that the purpose of doing so was to make it impossible to trace the vest and that there would be no “legitimate reason” to possess a vest in this condition. The trial court instructed the jury immediately before opening statements that the attorneys would “tell you what they think the evidence will be” and that “what the lawyers say is not evidence.” In view of the evidence tending to show that the vest was stolen, the assertion that the police “had a lot of problems” with “guys like” Frazier stealing their vests, while not strictly supported by the evidence, was an inference that could be drawn from Frazier’s possession of stolen property. Nothing in the record indicates that the State acted in bad faith in making the statement, and the trial court clearly instructed the jury that the opening statements were not evidence. We therefore find no reversible error.

3. Frazier’s double jeopardy claim is foreclosed by our decision in Spradley, supra, on the double jeopardy claim of his co-defendant. In that case, we found that evidence existed that the prosecutor did not intend to cause a mistrial in order to gain a delay and was prepared to try the case. The trial court’s finding of fact was authorized by the record, and the trial court properly denied the plea in bar. Id. at 343 (1).

4. Frazier next enumerates as error the trial court’s failure to grant his motion for mistrial after a question directed by the prosecutor to a police witness that referred to Frazier’s right to remain silent. As part of a lengthy series of questions eliciting the police arrest and booking procedure, the prosecutor asked, “Did they agree to talk?” The officer responded, “No.”

First, Frazier failed to object or move for a mistrial in timely fashion. The prosecutor continued questioning the officer about the booking process and had moved on to identifying the cocaine seized from Frazier’s co-defendant before Frazier interposed an objection. “The motion for mistrial came too late. Objection should have been made immediately upon the asking of the question. Absent timely objection or motion, there was no error. [Cits.]” Thomas v. State, 256 Ga. 616, 617 (4) (351 SE2d 453) (1987). See also Willis v. State, 241 Ga. App. 813, 815 (2) (527 SE2d 895) (2000).

Moreover, even if Frazier had preserved this error for appeal, he has failed to show that the trial court abused its discretion in denying his motion for mistrial.

Improper reference to a defendant’s silence does not automatically require reversal. Here, the trial court promptly gave curative instructions on the right of the accused to remain silent and unambiguously instructed the jury to disregard the comments and not to draw any adverse inference from the fact that the accused has asserted his right to remain silent.

(Citation and punctuation omitted.) Ledford v. State, 221 Ga. App. 238, 242 (4) (470 SE2d 796) (1996). As soon as Frazier raised his objection, the trial court explicitly instructed the jury regarding the “absolute right” of every citizen to remain silent and that jurors were to draw no inference or conclusion because the defendants did not make a statement. The trial court did not manifestly abuse its discretion in giving immediate and clear cautionary instructions to the jury, and we will not disturb its decision denying a motion for mistrial. See Mosier v. State, 218 Ga. App. 586, 589-590 (4) (462 SE2d 643) (1995).

5. Frazier contends the trial court erred in denying his motion to sever his trial from that of co-defendant Spradley. But while Frazier cites the established law on the criteria for severance, he makes no effort to show how this law applies to the evidence in this case by citation to the record or otherwise. Frazier’s merely conclusory statement in his brief that “the requirements . . . have been met” is not sufficient to comply with Court of Appeals Rule 27 (c).

Moreover, the record does not support Frazier’s contention.

In a noncapital case, whether to sever defendants’ trials lies within the trial court’s discretion, which will not be disturbed unless it is abused. In exercising its discretion, the court must consider three factors: (1) whether a joint trial will create confusion of evidence and law; (2) whether there is danger that evidence implicating one defendant will be considered against the other, despite cautionary instructions to the contrary; and (3) whether the co-defendants will press antagonistic defenses.

(Citations and punctuation omitted.) Nanthabouthdy v. State, 245 Ga. App. 456, 457-458 (1) (538 SE2d 101) (2000). Frazier and Spradley acted in concert in perpetrating the armed robbery, and all the charges against them arose from the robbery and subsequent high speed chase. The possibility for confusion of evidence or law was slight, if it existed at all. While Spradley was charged with drug possession and Frazier was not, Frazier took the stand and testified that he and Spradley were in business together “distributing cocaine.” Far from requesting a cautionary instruction against considering this evidence against him, Frazier raised the issue himself in an attempt to support his contention that his and Spradley’s only contact with the victims was a drug transaction, not a robbery. While Spradley did not testify, his attorney made the same contentions in closing argument. Redding v. State, 239 Ga. App. 718, 721-722 (4) (521 SE2d 840) (1999). There was no showing that either defendant presented an antagonistic defense. Nanthabouthdy, supra. Frazier has not demonstrated that the trial court abused its discretion in denying his motion to sever.

6. Finally, Frazier contends the trial court should have “dismissed” Count 4 of the indictment charging him with criminal use of an article with an altered identification number, the bulletproof vest he was wearing when arrested. He appears to be asserting a sufficiency of the evidence argument, contending that the State failed to present “testimony or evidence . . . concerning the manufacturer’s serial number.” But, as noted in Division 2, a police officer testified that the same or similar vests used by the Savannah Police Department had multiple labels and identification numbers and that all of them had been “ripped off” the vest worn by Frazier. Moreover, he testified that such numbers were removed in order to prevent tracing the vest and that there would be no “legitimate reason” to possess a vest in this condition.

Decided May 3, 2001.

Orin L. Alexis, for appellant.

Spencer Lawton, Jr., District Attorney, Lori E. Loncon, Assistant District Attorney, for appellee.

Both the existence of a manufacturer’s serial number and a defendant’s knowledge of its existence “may be proved by circumstantial evidence or inferred from circumstances which would excite the suspicions of an ordinarily prudent man.” (Citations and punctuation omitted.) Lane v. State, 169 Ga. App. 63, 64 (1) (311 SE2d 240) (1983). The trial court did not err in denying Frazier’s motion for directed verdict on this issue.

Judgment affirmed.

Barnes and Phipps, JJ, concur.

       In his brief on appeal, Frazier refers to only one agency and only by its initials, “CNT.” While never identified on the record, the initials appear to represent the Chatham Narcotics Team, even though Frazier refers to it as a “State investigatory agency.” See Bryant v. State, 245 Ga. App. 892, 893 (539 SE2d 523) (2000).

       The jury was instructed on circumstantial evidence.