text:
    74104.
    STANDARD GUARANTY INSURANCE COMPANY v. GRANGE MUTUAL CASUALTY COMPANY.
    (357 SE2d 295)
   Sognier, Judge.

Standard Guaranty Insurance Company appeals from the trial court’s grant of summary judgment to Grange Mutual Casualty Company and denial of its motion for summary judgment in the declaratory judgment action it filed seeking a determination of which insurance company was obligated to provide primary coverage under OCGA § 33-34-3 (e).

The facts are not disputed. Ronald Cody, insured by appellant, was involved in an automobile accident while driving a 1979 Honda owned by Bing Auto Sales, a used car dealership insured by appellee. Cody was driving the Honda by permission of Otis Bing, Cody’s grandfather and an employee of Bing Auto Sales. The night of the accident, Bing had driven the Honda to the home of his daughter (Cody’s mother) where Bing was residing during the week. Bing asked Cody to run a personal errand for him and authorized him to drive the Honda in order to accomplish the errand. It is uncontroverted that Cody was not an employee of Bing Auto Sales.

Both parties agree that the resolution of this appeal involves the application of OCGA § 33-34-3 (e) which provides: “Each policy of liability insurance issued in this state providing coverage to motor vehicles owned by a person, firm, or corporation engaged in the business of selling at retail new and used motor vehicles shall provide that, when an accident involves the operation of a motor vehicle by a person who is neither the owner of the vehicle involved in the accident nor an employee of the owner and the operator of the motor vehicle is an insured under a complying policy other than the complying policy insuring the motor vehicle involved in the accident, primary coverage as to all coverages provided in the policy under which the operator is an insured shall be afforded by the policy insuring the said operator and any policy under which the owner is an insured shall afford excess coverages.”

Appellant contends the trial court erred in its application of the statute here by ruling that appellant, as the insurer of the operator of the vehicle involved in the accident, was required to provide the primary coverage rather than appellee, the insurer of the vehicle. We note there is no issue before this court as to the nature of the coverage provided by the automobile operator’s insurance policy. Compare Barfield v. Allstate Ins. Co., 172 Ga. App. 882 (324 SE2d 731) (1984); Integon Indem. Corp. v. Canal Ins. Co., 256 Ga. 692 (353 SE2d 186) (1987).

Appellant argues OCGA § 33-34-3 (e) was intended by the legislature to apply solely to “loaners” (temporary substitute vehicles furnished by a dealer) and vehicles being test-driven by prospective purchasers. In statutory construction, “ ‘[i]t is fundamental that the determining factor is the intent of the legislature and we look first to the words of the statute to determine what that intent was and if those words be plain and unambiguous and the intent may be clearly gathered therefrom, we need look no further in determining what that intent was.’ [Cit.] In fact, ‘where the language of an Act is plain and unequivocal, judicial construction is not only unnecessary but is forbidden. [Cit.]’ [Cit.]” Williamson v. Lucas, 171 Ga. App. 695, 697 (320 SE2d 800) (1984).

The language of OCGA § 33-34-3 (e) does not explicitly or expressly limit the application of the statute to situations involving loaners or test-driven vehicles. We do not agree with appellant that Auto-Owners Ins. Co. v. Safeco Ins. Co., 245 Ga. 558 (266 SE2d 175) (1980) supports its argument that OCGA § 33-34-3 (e) is applicable solely to loaners and test-driven vehicles. The fact that these are the two examples given in Auto-Owners does not mean they are the exclusive situations which are covered by the statute. Although situations involving loaners and test-driven vehicles may be the two most common applications of OCGA § 33-34-3 (e) and may arguably have been the specific situations intended to be covered by the statute, the language of the statute was not drafted in such a limited fashion, but contains language expansive enough to cover the variations on the standard factual pattern which were certain to emerge, though impossible to predict.

Decided May 11, 1987.

Warner S. Fox, for appellant.

Robert R. Gunn II, John C. Daniel III, for appellee.

Therefore, in the absence of express statutory language or case law limiting the statute to loaner or test-driven vehicle circumstances, we decline appellant’s invitation to delimit OCGA § 33-34-3 (e) in such a manner. Accordingly, we affirm the trial court’s grant of summary judgment to appellee and denial of summary judgment to appellant.

Judgment affirmed.

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


source: Caselaw Access Project

author: Deen, Presiding Judge.

license: Public Domain

text:
    74575.
    SCOTT v. THE STATE.
    (357 SE2d 297)
   Deen, Presiding Judge.

The appellant, Stephen Scott, was indicted, tried, and convicted of armed robbery, along with his co-defendant, Willie Porter. Scott was sentenced to life imprisonment, and this appeal followed.

1. Scott contends that the trial court erred while instructing the jury by referring to the co-defendants plurally and not making it clear that under the evidence the jury might acquit one defendant though the other was convicted. Scott’s co-defendant successfully raised the same issue in his separate appeal. Porter v. State, 182 Ga. App. 624 (356 SE2d 703) (1987). Accordingly, for the reasons stated in Porter v. State, supra, retrial is necessary.

2. Scott’s remaining enumerations are either rendered moot, concern matters not likely to recur upon retrial, or are without merit.

Judgment reversed.

Birdsong, C. J., and Pope, J., concur.

Decided May 11, 1987.

Clifton O. Bailey III, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Wendy Shoob, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.


text:
    74584.
    In the Interest of C. T. L.
    (357 SE2d 298)
   Deen, Presiding Judge.

This court granted a discretionary appeal to review an order of the Juvenile Court of Gwinnett County which placed temporary custody of C. T. L. in the Gwinnett County Department of Family and Children Services. The natural mother contends that the trial judge erred in using “the best interests of the child” test in placing custody with a third party. Held:

In determining an initial award of custody of a minor child to either of its natural parents, the court can exercise its discretion based upon “the best interests of the child.” Gazaway v. Brackett, 241 Ga. 127 (244 SE2d 238) (1978). Where, however, a third party seeks to obtain custody of a child, the trial court must find by “clear and convincing evidence” that the parent is unfit or otherwise not entitled to custody under OCGA §§ 19-7-1 and 19-7-4. Blackburn v. Blackburn, 249 Ga. 689 (292 SE2d 821) (1982). “[W]here deprivation forms the predicate upon which the third party seeks a temporary transfer of the child’s legal custody, in order to support such disposition the child must first be adjudicated to be a deprived child. By statute, that finding of deprivation must be made by ‘clear and convincing evidence.’ OCGA § 15-11-33 (b) (1) . . . In cases brought by a third party against the natural parent and alleging deprivation, the ‘clear and convincing’ standard of evidence applies with equal force to petitions for temporary custody as well as to any permanent transfer of custody or termination of parental rights.” In re J. C. P., 167 Ga. App. 572, 575 (307 SE2d 1) (1983). Compare In re R. L. Y., 181 Ga. App. 14, 16, 18 (351 SE2d 243) (1986).

In the instant case, the court found “that there have been two different instances of said child receiving severe bruising and blood blisters and the natural mother as permanent legal custodian has failed to provide said child with the proper care and protection; that the best interest of said child would be served by continuing temporary custody with the Gwinnett County Department of Family and Children Services.”

The issue was raised in In re R. L. Y., supra, where the evidence of deprivation was found to be ample, whether this court must remand the case for further determination in the absence of findings of fact and conclusions of law of the required standard of “clear and convincing evidence” of deprivation in order to award temporary custody of the child to a third party. The court held that the case must be remanded. For the reasons set forth in that case, we also find that this case must likewise be remanded for further findings by the trial court which will apply the correct standard.

Decided May 11, 1987.

Michael Greene, for appellant.

Michael J. Bowers, Attorney General, Marion 0. Gordon, First Assistant Attorney General, Carol Atha Cosgrove, Senior Assistant Attorney General, for appellee.

Judgment reversed and case remanded with direction.

Birdsong, C. J., and Pope, J., concur.


author: McMurray, Presiding Judge.

text:
    74164.
    MARKS v. THE STATE.
    (357 SE2d 299)
   McMurray, Presiding Judge.

Defendant appeals his convictions of theft by taking and of entering an automobile or other motor vehicle with intent to commit a theft. The offenses involve separate incidents and separate indictments, but upon defendant’s waiver were tried jointly before the trial court without a jury. Defendant’s sole enumeration of error questions the admission of evidence as to a prior conviction as a similar transaction. Held:

“Once the identity of the defendant is shown to be the same as that of the perpetrator of an independent crime of sufficient similarity that proof of that crime tends to prove the offense charged, evidence of the independent crime may be introduced to show identity, motive, plan, scheme, bent of mind and course of conduct. Williams v. State, 251 Ga. 749 (312 SE2d 40) (1983); Head v. State, 246 Ga. 360 (271 SE2d 452) (1980); Hamilton v. State, 239 Ga. 72 (235 SE2d 515) (1977).” Cunningham v. State, 255 Ga. 35, 37 (4) (334 SE2d 656).

The independent crime at issue in the case sub judice is the defendant’s 1981 conviction for theft by taking. In the 1981 case, the victim’s automobile was taken from his home located about five blocks from the Georgia Tech campus. Shortly thereafter, police found the victim’s automobile in the vicinity of Maddox Park. Defendant was seen going through the victim’s automobile and was seen to begin walking away carrying a battery. Defendant abandoned the battery in the course of making his escape, but was identified by a police officer whom he ran past.

Decided May 12, 1987.

Viveca R. Burns, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, Assistant District Attorneys, for appellee.

The theft by taking conviction being appealed arises from the theft of an automobile from the area of the Georgia Tech campus. Defendant was seen in possession of the stolen automobile. When the stolen automobile was later recovered by police the battery and other items were missing.

Defendant’s conviction for entering an automobile or other motor vehicle with intent to commit a theft arose from an incident in the vicinity of Maddox Park involving a truck parked on the side of a public street. The truck, which was used in a business, was parked across the street from the home of an employee of the owner of the truck. At about 5:15 or 5:20 a.m. the employee observed the hood up, and the doors open to the truck. After the employee yelled, the defendant dropped a briefcase he was carrying which had been under the seat in the truck. After some further shouting the defendant left. An examination of the truck revealed that a number of items under the seat of the truck and in the glove compartment had been disturbed. Also, the battery had been removed from the truck (the battery was not missing, but was found beside the truck and put back in the truck).

Identity of the defendant as the perpetrator of all three incidents is shown. In each incident it is apparent that defendant’s goal was to remove from the motor vehicle and carry away valuable items, the motor vehicle’s battery being removed in each incident. There was a geographical connection in that each crime involved the area of the Georgia Tech campus or Maddox Park or both. Also, in each case some portion, if not all, of defendant’s criminal actions occurred during the early morning hours. The lapse of time between the similar transaction (1981) and the cases sub judice (1984 and 1986) was not so long as to require exclusion of the evidence as to the similar transaction. The State’s evidence shows sufficient similarities between the incidents that the prior incident was admissible as to identity, motive, plan, scheme, bent of mind and course of conduct. Consequently, the trial court did not err in considering the prior transaction evidence for this limited purpose. Cunningham v. State, 255 Ga. 35, 37 (4), supra; Gay v. State, 179 Ga. App. 430, 432 (3) (346 SE2d 877).

Judgment affirmed.

Sognier and Beasley, JJ., concur.


author: Beasley, Judge.

text:
    74195.
    HILL v. ADAMS et al.
    (357 SE2d 300)
   Beasley, Judge.

Hill directly appealed from dismissal of his petition, brought under OCGA § 19-7-22, to legitimate a minor child born to a woman during her marriage to another man. Unfortunately, we cannot reach the merits because he followed the wrong path for appellate review. “A legitimation proceeding is a type of domestic relations case” and an application for permission to appeal must be made in accordance with OCGA § 5-6-35 (a) (2). Brown v. Williams, 174 Ga. App. 604 (332 SE2d 48) (1985); Noggle v. Arnold, 177 Ga. App. 119 (338 SE2d 763) (1985).

This does not necessarily end the matter. Actually, the petition was premature, assuming Hill is the child’s biological father, since the nature of such a proceeding is to legitimate an illegitimate child. In this case, the child had been adjudicated by the court in a divorce action to be the child of the mother’s husband as a matter of law, thus establishing the child’s legitimacy. That court had not permitted the jury to decide the issue but had acted on the motion of the husband for a directed verdict.

A proceeding under OCGA § 19-7-22 only lies with respect to “an illegitimate child,” which in this case is one “who is the issue of adulterous intercourse of the wife during wedlock.” OCGA § 19-7-23 (2). In the divorce action, the court had found as a matter of law that the child was the issue of the husband. It follows that the child was not, at the time Hill filed his petition, “an illegitimate child” in the eyes of the law but rather a legitimate child “born in wedlock.” OCGA § 19-7-20 (a). But paternity and legitimacy are not the same thing.

Hill must first establish his paternity, which he may do by a proceeding pursuant to OCGA § 19-7-43 (a) (5). There he may bring in the HLA blood test results and all the evidence which he urges us establishes conclusively that he is the biological father. And unlike a legitimation proceeding, the child will have a guardian ad litem, by statutory command. OCGA § 19-7-44.

If the result of such a proceeding is “an order designating [Hill] as the father of the child,” OCGA § 19-7-49, and thus establishing him as the biological father in the eyes of the law, the child will perforce be an illegitimate child. It is then that Hill, as the “father of an illegitimate child may render the same legitimate” by proceeding under OCGA § 19-7-22.

Appeal dismissed.

McMurray, P. J., concurs. Sognier, J., con curs in the judgment only.

Decided May 12, 1987.

Richard H. Bishoff, for appellant.

Richard T. Bridges, Bentley C. Adams III, George W. Adams, for appellees.


text:
    74336.
    WILLIAMS v. THE STATE.
    (357 SE2d 301)
    Decided May 12, 1987.

      J. Robert Daniel, for appellant.
   McMurray, Presiding Judge.

Defendant was convicted of four counts of possession of cocaine and one count of distribution of cocaine. He now appeals. Held:

In his sole enumeration of error defendant contends the trial court erred in allowing the State to introduce evidence of similar criminal transactions at trial without complying with Rule 31.3 of the Uniform Rules for the Superior Courts. 253 Ga. 801, 854.

“Our new Uniform Superior Court Rules (effective July 1, 1985) provide that if the prosecution intends to present evidence of similar transactions to those charged it may notify the court prior to trial and request a ruling. Rule 31.3 (A). Such notice shall be served on the defendant’s counsel. Rule 31.3 (B). If prior approval is not obtained, evidence of similar transactions shall be inadmissible. Rule 31.3 (C). However, there is an exception. ‘Nothing in this rule is intended to prohibit the state from introducing evidence of similar transactions or occurrences which are . . . immediately related in time and place to the charge being tried, as part of a single, continuous transaction.’ Rule 31.3 (E).” Presley v. State, 177 Ga. App. 611, 613 (2) (b), 614 (340 SE2d 253).

In the case sub judice, the evidence upon which defendant complains showed that defendant was given illegal drugs, which he consumed, as compensation for his role in the underlying criminal activities which formed the basis of the crimes charged. Under these circumstances, we find that the alleged similar transaction evidence was part of the res gestae of the crimes charged. Consequently, the trial court did not err in allowing the State to introduce this evidence at trial. Presley v. State, 177 Ga. App. 611, 614, supra.

Judgment affirmed.

Sognier and Beasley, JJ., concur.

Willis B. Sparks III, District Attorney, Vernon R. Beinke, Thomas J. Matthews, Assistant District Attorneys, for appellee.


text:
    73601.
    VASQUEZ v. THE STATE.
    (357 SE2d 302)
   Beasley, Judge.

Defendant was convicted of armed robbery (OCGA § 16-8-41 (a)), and complains of the introduction of a similar act and the court’s failure to give certain jury charges.

The victim testified that a lone gunman came into The Winery liquor store on October 30, 1985, at about 10:00 p.m., brandishing a .357, and told her to put her hands up and turn around. He then took the cash drawer from the cash register. She could see him in the reflection of the window while turned around and positively identified him from a photo spread and at trial. She also described him as a Spanish or Cuban male, with a clean shaven face, wiry black hair, and a heavy accent. She saw him drive away in a two tone silver/blue four-door Ford hatchback with the lights off.

Out of the jury’s presence, the court conducted a hearing on the independent crime, which had occurred nine days earlier on October 21 in Marietta. A lone gunman approached a cashier at a convenience food shop while the manager was getting supplies from the adjacent storeroom. The robber demanded the keys to the store and walked the manager there. He then directed him to open the cash drawer, reached in and took the money. The manager, who participated in the preparation of a composite sketch of the robber, described the gun as a .22 and the robber as a clean shaven man with a sort of afro and as Venezuelan. He saw the robber leave in a two-tone hatchback from which he obtained 5 of the 6 digits of the license plate. The car was registered to defendant and was a blue/silver Ford hatchback. The Cobb officers testified that they showed a pictorial spread to the victim, consisting of 5 black males and the defendant. They stated that although they had access to a few other Hispanic males, the features did not match defendant’s so they instead used black males with similar facial features. The victim stated that he did not recall being shown the spread but positively identified defendant at trial. In addition to the visual identification, the victim in the separate incident stated “that’s him” when defense counsel asked the defendant to speak the words used by the robber.

1. The objection voiced there is that the photo spread was impermissibly suggestive so that the earlier victim’s identification of defendant as the perpetrator of the earlier robbery was invalid. This, he urges, eliminates the evidence of the earlier robbery because the identification prerequisite for admissibility is fatally infected. See Johnson v. State, 246 Ga. 654 (1) (272 SE2d 321) (1980), for the test of admissibility.

As acknowledged by defendant on appeal, no motion to suppress was filed concerning the questioned line-up. Neither was any objection voiced at trial to the in-court identification by the earlier victim. The only objection made was during the court’s hearing on the admissibility of the “like act,” during which defendant pointed out that the DeKalb line-up was much better and merely asked the judge “to consider that [i.e., the nature of the photo spread] when you determine the identification of Mr. Pack [the Cobb victim] . . .”

Having made no motion to suppress or objection to the in-court identification, any objection in this regard to the photo spread has been waived. Laidler v. State, 180 Ga. App. 213, 214 (1) (348 SE2d 739) (1986); Davis v. State, 180 Ga. App. 573, 575 (3) (349 SE2d 805) (1986).

Moreover, the question of admissibility of the other act being for the court, Felker v. State, 252 Ga. 351 (314 SE2d 621) (1984), it cannot be said as a matter of law that the photo spread, which we have viewed, was impermissibly suggestive. In addition, the convenience store victim’s identification was sufficiently established. Cawthon v. State, 119 Ga. 395, 409 (46 SE 897) (1904). He had provided information for a composite before seeing the spread, he had no recall of having even seen the spread, he identified the accused in court without hesitation, and he recognized his voice. Positive, direct evidence is not determinative of admissibility; circumstantial evidence may be utilized to establish a prior similar offense. Miller v. State, 179 Ga. App. 100 (1) (345 SE2d 647) (1986); Smith v. State, 154 Ga. App. 497, 499 (1) (268 SE2d 714) (1980). There is no merit to this enumeration.

2. In his second and third enumerations, defendant complains that two of his requested jury instructions were not given. He did object on this basis below. The judge did give, verbatim, his request # 15, and there is therefore no error with regard to the second enumeration.

Defendant also complains of the failure to give the following: “I charge you that the position a witness occupies, such as a police officer, does not in itself give greater weight and credit to his testimony over the testimony of any other witness in the case.” The case cited in support of this proposition, Faust v. State, 222 Ga. 27 (148 SE2d 430) (1966), does not, as urged by defendant, support the giving of the requested charge. Rather, it was reversible error for the judge to charge affirmatively that the jury, in determining credibility, was authorized “to look to . . . the position he [witness] occupies . . . .” The only witness for the state was a police officer.

Here, the trial court gave the Suggested Pattern Jury Instructions charge on the credibility of witnesses. In this case, it was sufficient. We find no authority supporting the requested jury instruction or regarding as reversible error the failure to give it. See Pratt v. State, 180 Ga. App. 389, 391 (2) (348 SE2d 922) (1986).

Decided May 13, 1987.

William T. Hankins III, for appellant.

Robert E. Wilson, District Attorney, Susan Brooks, Michael McDaniel, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


author: Sognier, Judge.

text:
    74210.
    HARGREAVES v. GREATE BAY HOTEL & CASINO.
    (357 SE2d 305)
   Sognier, Judge.

Greate Bay Hotel & Casino (Greate Bay) obtained a valid judgment against George Hargreaves in New Jersey in its suit to collect a gambling debt. Greate Bay then filed suit against Hargreaves in Georgia to domesticate the New Jersey judgment. The trial court granted summary judgment in favor of Greate Bay, and Hargreaves appeals.

Appellant contends the trial court erred by granting judgment to Greate Bay as a matter of law because the underlying debt is a gambling debt, and it is against the public policy , of the State of Georgia to enforce such a debt. OCGA § 13-8-2 (a) (4). Although fully aware that gambling is against the public policy of Georgia, we note this is not a suit on the gambling debt itself, but rather a suit to domesticate a valid judgment of a sister state. It is undisputed that Hargreaves filed an answer and counterclaim in the New Jersey action, thus conferring valid jurisdiction on that court. Both the United States Supreme Court, Fauntleroy v. Lum, 210 U. S. 230 (28 SC 641, 52 LE 1039) (1908), and the Georgia Supreme Court, Cannon v. Cannon, 244 Ga. 299 (260 SE2d 19) (1979), have held that full faith and credit must be accorded the valid judgment of another state, even though such a judgment could not have been obtained in our own courts because the underlying contract is void as against the state’s public policy. “A cause of action on a judgment is different from that upon which the judgment was entered. In a suit upon a money judgment for a civil cause of action the validity of the claim upon which it was founded is not open to inquiry, whatever its genesis.” Milwaukee County v. M. E. White Co., 296 U. S. 268, 275 (56 SC 229, 80 LE 220) (1935). We are therefore bound to affirm the decision of the trial court.

Judgment affirmed.

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

Decided May 13, 1987.

John McGuigan, Jr., for appellant.

Teresa M. Wright, for appellee.


text:
    74495, 74720.
    STROHECKER et al. v. GWINNETT COUNTY POLICE DEPARTMENT et al. (two cases).
    (357 SE2d 305)
   Deen, Presiding Judge.

These appeals had their origins on June 25, 1984, when American Telephone and Telegraph Technologies, Inc. (AT&T), fired Joseph Sun from his position as design engineer, prompting Sun and his wife to file a series of lawsuits against AT&T, Joseph Strohecker and Charles Heard (Sun’s supervisors and the appellants in these cases), and other co-workers. These lawsuits variously alleged civil rights violations, terroristic phone calls, intentional infliction of emotional distress, fraud, breach of contract, slander, and conspiracy to “wrongfully ruin his life.” All of these actions eventually were dismissed.

Sun’s wife, however, also filed a criminal complaint with the Gwinnett County Police Department claiming that Strohecker and Heard were making threatening phone calls to their home. Strohecker and Heard were arrested, fingerprinted, and detained. The charges were dismissed on July 19, 1984, when Sun’s wife failed to appear at the scheduled preliminary hearing.

Strohecker and Heard somewhat wistfully note in their brief that “[t]hey have been shielded from further attack, at least temporarily, by Mr. Sun’s detention by the federal authorities. [Mr. Sun was arrested by the Federal Bureau of Investigation in mid-December 1986. He was indicted for forgery, fraud, and mail fraud as a result of his alleged fraudulent alteration and use of a court order issued by Judge Robert Hall of the United States District Court for the Northern District of Georgia. After a hearing, Mr. Sun was denied bail. At last report, he was still incarcerated pending trial.] But, thanks to this pro se litigant gone berserk, Messrs. Strohecker and Heard now have arrest and fingerprint records besmirching their previously pristine criminal files.”

Decided May 13, 1987.

John F. Wymer III, C. Geoffrey Weirich, for appellants.

Michael J. Bowers, Attorney General, Marion 0. Gordon, First Assistant Attorney General, Daryl A. Robinson, Michael E. Hobbs, Assistant Attorneys General, George G. Dean II, Richard A. Carothers, for appellees.

On March 28, 1986, Strohecker and Heard requested that the Gwinnett County Police Department expunge their criminal records and return their fingerprint records to them, but the Department denied the request, citing a policy requiring a court order before any criminal records would be expunged. Their appeal to the superior court was denied without a hearing, and Strohecker and Heard then filed both this direct appeal (Case No. 74495) and this discretionary appeal (Case No. 74720). Held:

1. OCGA § 35-3-37 (c) provides that in an appeal from an agency decision declining to purge or modify a person’s criminal records, the superior court “shall conduct a de novo hearing and may order such relief as it finds to be required by law.” A hearing is mandatory under the statute, and this case must be remanded to the superior court to conduct one.

2. OCGA § 5-6-35 (a) (1) generally requires applications for discretionary appeal of decisions of superior courts reviewing administrative agency decisions and lower courts by certiorari or de novo proceedings; an appeal from a superior court’s review of a probate court decision, however, is excepted and remains a matter of direct appeal. Apparently because OCGA § 35-3-37 (c) provides that appeals such as in the instant case “shall be entered in the same manner as appeals are entered from the probate court,” the appellants filed both direct and discretionary appeals. This matter involves an appeal of a superior court decision reviewing a decision of an agency, and requires the discretionary appeal procedures. Accordingly, the direct appeal must be dismissed.

Case remanded with direction in Appeal No. 74720; Appeal No. 74495 dismissed.

Birdsong, C. J., and Pope, J., concur.

       As noted by the appellants, “[t]o say Mr. Sun is an active pro se litigant is an understatement. He has had more than forty pending lawsuits in the Atlanta metropolitan area over the last several years. He also has a propensity for ‘repetitive’ litigation, in which he brings multiple or consecutive lawsuits relating to the same nucleus of operative facts, but based upon different legal theories or imagined ‘conspiratorial’ activities. In one case, Mr. Sun actually reached trial but received an adverse verdict. He then sued the judge, jury and opposing counsel, claiming that they ‘conspired to commit the crime of depriving plaintiff of his civil right of access to the Rockdale County Superior Court.’ ”


text:
    74548.
    LADSON v. THE STATE.
    (357 SE2d 307)
   Deen, Presiding Judge.

The appellant, George Ladson, was convicted of burglary, 3 counts of aggravated assault, attempted armed robbery, and possession of a firearm during the commission of a felony. On appeal, his sole contention is that the evidence was insufficient to support the convictions.

Around midnight on October 1, 1984, two men forced their way into the garage apartment of David and Betty Windham, who were in their living room talking with a friend. Both intruders wielded pistols, and both obscured their faces with bandannas. The intruders demanded money, and when the victims indicated that they had none, the taller intruder slapped Betty Windham and the other slapped the guest. The taller intruder then fired 2 shots at David Windham, striking him once in the stomach. Both assailants then departed. David Windham subsequently picked out Ladson and Ladson’s nephew, Jerry McCaster, from a photo line-up, based on his recognition of their eyes; Betty Windham similarly picked out McCaster from a photo line-up.

Shortly after the Windham incident, patrolling police officers observed Ladson and McCaster walking down the street in the Windhams’ neighborhood, drinking a quart of beer, but did not otherwise detain them. A few minutes later, Ladson and McCaster arrived at the residence of Teresa Dent, a girl friend of Ladson. Both men had pistols, and Ladson requested that Dent keep his gun for him for a few days. Dent then gave the two men a ride to their respective homes, and 2 or 3 days later she returned Ladson’s gun to him. Subsequently, during a search of Ladson’s bedroom, police officers found a .22 calibre pistol. David Windham identified it as the weapon used by his assailant, and a firearms examiner with the state crime lab stated that ballistic tests, while not conclusive, indicated that the bullet removed from Windham’s body had been fired from this pistol.

McCaster, who was indicted with Ladson, eventually pleaded guilty to these crimes, as well as a rape and murder that occurred later that night. He testified, however, that a fellow named Melvin Freeman had been his associate in crime, and not his uncle, Ladson. McCaster’s testimony, however, was controverted by the investigating officers, and contradicted in part by the appellant himself. Held:

“We must view the evidence in a light most favorable to the verdict and, in doing so, we conclude that the evidence was sufficient to exclude every reasonable hypothesis save [the appellant’s] guilt and that any rational trier of fact could have found [the appellant] guilty beyond a reasonable doubt.” Castillo v. State, 166 Ga. App. 817, 821 (305 SE2d 629) (1983).

Decided May 13, 1987.

Alan David Tucker, for appellant.

W. Glenn Thomas, Jr., District Attorney, John B. Johnson III, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, C. J., and Pope, J., concur.


text:
    74631.
    GODWIN v. AUTO-OWNERS INSURANCE COMPANY et al.
    (357 SE2d 308)
    Decided May 13, 1987.

      Julius A. Powell, Jr., for appellant.
   Deen, Presiding Judge.

The appellant’s son was injured when a Honda three-wheeler motor vehicle, on which he was a passenger, was struck by a pickup truck. The appellee, Auto-Owners Insurance Company, insured the pickup truck, providing basic no-fault benefits. The appellant commenced this action against Auto-Owners, asserting a claim for her son’s injuries on the basis that he was a pedestrian. The trial court granted summary judgment for Auto-Owners, concluding that the appellant’s son was occupying a motorcycle and thus not entitled to no-fault benefits as a pedestrian. This appeal followed. Held:

OCGA § 33-34-2 (11) defines pedestrian as “any person not occupying a motor vehicle or a motorcycle or any other motor driven vehicle designed primarily for operation upon the public streets, roads, and highways or not in or upon a vehicle operated on stationary rails or tracks or not in or upon any aircraft.” OCGA § 40-1-1 (25) defines motorcycle as “every motor vehicle having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground, but excluding a tractor and moped.” This court has previously classified a recreational “trail bike” as a motorcycle within the meaning of OCGA § 33-34-2 (11). Prince v. Cotton States Mut. Ins. Co., 143 Ga. App. 512 (239 SE2d 198) (1977); Walker v. Leader Nat. Ins. Co., 177 Ga. App. 556 (340 SE2d 231) (1986). We conclude that the recreational Honda three-wheeler likewise must be considered a motorcycle within the meaning of OCGA § 33-34-2 (11), and summary judgment for the appellee was proper.

Judgment affirmed.

Birdsong, C. J., and Pope, J., concur.

John C. Edwards, Frank H. Childs, Jr., for appellees.


text:
    74659.
    NEWBERRY v. THE STATE.
    (357 SE2d 309)
   Deen, Presiding Judge.

The appellant, Earnest Newberry, was convicted of armed robbery, burglary, and possession of a firearm during commission of a felony. We affirm.

At approximately 5:00 a.m. on January 19, 1986, two masked intruders entered through the window of the apartment of Mr. and Mrs. Keith. Awakened by the entry, the two victims struggled, but the intruders eventually subdued them and confiscated over $200. One intruder wielded a pistol, while the other carried a knife, and both repeatedly demanded money. At some point, the pistol-packing intruder went upstairs, and when he returned he had removed his ski mask. Mrs. Keith instantly recognized him as the appellant, whom she knew as a fellow resident in the same apartment complex. Mr. Keith’s head was covered, but he also recognized the voice and manner of speaking of this particular intruder as that of the appellant.

The appellant presented an alibi defense, claiming that he had visited his mother in Hawkinsville that weekend and had not returned to Atlanta until the evening after this incident. Two cohorts corroborated the appellant’s testimony, stating that they had accompanied him to Hawkinsville that weekend. Held:

1. Newberry contends that the evidence was insufficient to support the conviction. However, viewed in the light most favorable to the jury verdict, the evidence authorized a rational trier of fact to find the appellant guilty beyond a reasonable doubt of the offenses as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. After instructing the jury on when a person is a party to a crime, the trial court explained that “[t]his was a robbery in this case as alleged in the indictment and it’s alleged that there were or contended by the state there were two parties involved, their contention that the defendant here played a certain part in it while another person played another part. So that is why I gave you that particular charge.” Relying upon Coleman v. State, 211 Ga. 704 (88 SE2d 381) (1955), Newberry contends that this explanation constituted an impermissible expression of an opinion by the trial court.

Coleman, where the defendant claimed that he purchased the stolen property from the victim and where the trial court charged the jury that “the evidence shows that there was a robbery and a robbery by force,” quite clearly is inapposite here. In this case, Newberry’s defense simply was that he was not a party to the criminal activity, rather than a denial of the fact of the crime, and the trial court’s explanation, considered in context, could hardly be mistaken as an expression of opinion on what the evidence showed.

Decided May 13, 1987.

L. James Weil, Jr., for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Benjamin H. Oehlert III, Harvey W. Moskowitz, Assistant District Attorneys, for appellee.

3. After the defense rested, the trial court allowed the state to recall Newberry for further cross-examination. Most of this subsequent inquiry concerned why Newberry, upon being informed that the Keiths were accusing him of the crime, did not approach them and attempt to clear up the matter. Recalling a witness for further examination lies within the discretion of the trial court, and we find no abuse of that discretion in this case. Dixon v. State, 116 Ga. 186 (5) (42 SE 357) (1902).

4. Newberry also contends that the prosecutor’s reference, during closing argument, to Newberry’s failure to contact the victims to clear up what he claimed was a misidentification, constituted an impermissible comment on his right to remain silent. By not objecting to that argument until now, however, Newberry waived any such objection. Wright v. State, 255 Ga. 109, 112 (4) (335 SE2d 857) (1985).

Judgment affirmed.

Birdsong, C. J., and Pope, J., concur.


text:
    73712.
    WILLIAMS v. BRYANT.
    (357 SE2d 278)
   McMurray, Presiding Judge.

This interlocutory appeal involves review of a denial of a motion to enforce settlement agreement. The original plaintiff in the underlying action for damages arising from a motor vehicle collision was Joseph Bryant. Subsequently, Dora Mae Bryant, wife and guardian of Joseph Bryant, was substituted as plaintiff in her capacity as guardian over the person and property of Joseph Bryant. We note that while the purported settlement agreement occurred prior to the substitution of party plaintiff, the affidavit of Dora Mae Bryant reveals that she, in her capacity as guardian, was directing the litigation on behalf of plaintiff prior to the entry of the order substituting plaintiff.

The defendant’s motion to enforce settlement agreement is supported by the affidavit of defendant’s attorney stating that a former attorney for the plaintiff agreed to settle the case, and that at no time was there ever communicated to him any limitation to the authority of plaintiff’s former attorney to enter into a settlement agreement on behalf of his client. Although the affidavit of Dora Mae Bryant indicates that while acting as guardian she limited plaintiff’s attorney’s authority to settle the case, there is no contradiction of the affidavit of defendant’s attorney insofar as it states that any such limitation was never communicated to him. We also note that plaintiff’s attorney at the time of the purported settlement agreement has withdrawn from the representation of plaintiff in the case sub judice and the record contains no affidavit or testimony of that attorney in regard to the purported settlement agreement. Held:

Decided April 28, 1987

Rehearing denied May 14, 1987

John E. Bumgartner, for appellant.

Amanda F. Williams, Sheryl Jolly, for appellee.

Under Brumbelow v. Northern Propane Gas Co., 251 Ga. 674 (308 SE2d 544), the challenge to the apparent authority of plaintiff’s former attorney to enter into a settlement agreement on behalf of his client fails. However, an issue remains as to the identity of the client. The record contains a release which was sent to plaintiff’s former attorney by defendant’s attorney (along with a draft for $2,500 and a dismissal). This document purports to release, in addition to the claims of Joseph Bryant, any claim of Dora Mae Bryant, individually and as wife of Joseph Bryant. The unsigned release document is the only evidence in the record as to the terms of the purported settlement agreement.

Plaintiff’s action is solely for the personal and property damage to Joseph Bryant and no claim is stated in the case sub judice based on the wife’s injuries, if any. Nor is there any evidence that the former attorney of plaintiff was employed by Dora Mae Bryant other than in her fiduciary capacity as guardian of Joseph Bryant. Consequently, the former attorney of plaintiff lacked apparent authority to compromise any claim of the wife in her individual capacity or as wife of Joseph Bryant. The uncontradicted evidence shows that plaintiff’s former attorney lacked actual authority to settle on the terms suggested by defendant. Therefore, the record fails to show a settlement agreement within the authority, apparent or actual, of plaintiff’s former attorney. The superior court did not err in denying defendant’s motion to enforce settlement agreement.

Judgment affirmed.

Sognier and Beasley, JJ., concur.


text:
    74072.
    THE STATE v. BELL.
    (357 SE2d 596)
   McMurray, Presiding Judge.

Appellee was indicted for the offenses of “operating a motor vehicle after revocation of motor vehicle license as an habitual violator” (Count 1) and “operating a motor vehicle without a valid numbered license plate to operate same for the ensuing year” (Count 2). His motion to quash the indictment was granted by the trial court as to Count 1. The following facts were stipulated at the hearing upon appellee’s motion:

Appellee Timothy Bell was declared an habitual violator by the Department of Public Safety on February 11, 1986, under the provisions of OCGA § 40-5-58, and was served with notice of his status on April 14, 1986. (Appellee only stipulated, as to notice, that the records in possession of the State would show notice but proof remained until trial.) On June 20, 1986, he was arrested and charged with the offenses in this case. Appellee filed a petition for writ of habeas corpus on July 22, 1986. He attacked two of the three convictions upon which his designation as an habitual violator was based on grounds that these convictions did not show that he had made knowing or intelligent waivers of his rights to counsel and/or trial by jury. On August 18, 1986, appellee was indicted by the grand jury and on August 28, 1986, appellee was granted relief pursuant to his writ of habeas corpus on the basis of the grounds alleged. Thus, two of the offenses underlying appellee’s declaration as an habitual violator were stricken.

The State appeals under OCGA § 5-7-1 (1) from the quashing of Count 1 of the indictment by the trial court. Held:

“[I]t is not necessary to prove the defendant’s prior convictions on a prosecution under the habitual violator statute . . . The state is required to prove ‘that the defendant was declared an habitual violator; that his license was revoked; that he received notice that his license was revoked because of his status as an habitual violator; and, that he operated a motor vehicle in this state without having obtained a valid driver’s license.’ [Cit.]” Webster v. State, 170 Ga. App. 102, 103 (316 SE2d 503). That being so, the validity of the prior convictions is not an issue, and a person cannot make it one by defending on the ground that one or more of the convictions have been set aside following the prohibited driving. Smith v. State, 248 Ga. 828, 830 (3) (286 SE2d 709). “The very essence of the crime is driving after being declared to be an habitual violator. Kimbrell v. State, 164 Ga. App. 344, 346 (296 SE2d 206) (1982).” Webster v. State, supra at 103.

It follows that the crucial date, insofar as habitual violator status is concerned, is the date of driving, not the date on which the status is challenged or set aside. If the person is driving despite notification that he may not do so because he has been declared an habitual violator, he is flaunting the law even if one or more of the underlying convictions is voidable. When continuing to drive instead of challenging the convictions upon notification of habitual violator status, as he could do by administrative review (Hardison v. Shepard, 246 Ga. 196 (269 SE2d 458); OCGA § 40-5-66) or by habeas corpus (Hardison v. Martin, 254 Ga. 719 (334 SE2d 161) (1985)), he is then in violation of OCGA § 40-5-58 (c). Of course, the person may petition for habeas corpus after the offense is committed, as appellee did successfully on August 28, 1986. In that way, the person will bring an end to the ongoing habitual violator status. But that will not affect the person’s guilt or innocence with regard to the offense of driving a motor vehicle after being declared to be an habitual violator.

Decided May 1, 1987

Rehearing denied May 14, 1987

Robert E. Wilson, District Attorney, Nelly F. Withers, Assistant District Attorney, for appellant.

Ira G. Brownlow, Jr., for appellee.

Judgment reversed.

Sognier and Beasley, JJ., concur.


text:
    73641.
    ST. JOHN v. THE STATE.
    (357 SE2d 311)
   McMurray, Presiding Judge.

Defendant was charged by six indictments with a total of eight (8) counts of cruelty to children and one count of child molestation. On the trial of the case, seven counts of cruelty to children were dismissed at the conclusion of the State’s case. The jury returned a verdict of not guilty on the remaining count of cruelty to children and a verdict of guilty on the child molestation charge. Defendant appeals his conviction of child molestation. Held:

1. Defendant enumerates as error the admission of testimony “as to alleged acts of child molestation and child abuse by the defendant which allegedly occurred before those acts which were charged in the indictment . . .” The victim, who was 10 years of age at the time of the trial, testified that defendant lived with her, her mother and four brothers in Fayette County and previous to that in Spalding County and Ohio. The victim testified that on occasion defendant would come into her bedroom after she had gone to bed and try to “hump” her, that is, that defendant would try to -take her pants down, that he would get her pants part of the way down, place his penis between her legs and go up and down, sometimes ejaculating. The victim testified that defendant had done this in Fayette County, Spalding County and Ohio and that even though it was in the dark she recognized defendant’s voice and was certain that it was defendant doing that.

The State’s evidence clearly satisfies the two conditions precedent for the admission of similar transactions for limited purposes, such as showing identity, motive, plan, scheme, bent of mind and course of conduct. The State’s evidence shows, first, that the defendant was in fact the perpetrator of the independent crime and, second, there was sufficient similarity or connection between the independent crime and the offense charged, so that proof of the former tends to prove the latter. See Miller v. State, 179 Ga. App. 100 (1) (345 SE2d 647); Munn v. State, 179 Ga. App. 357 (2) (346 SE2d 128); Williams v. State, 180 Ga. App. 227 (348 SE2d 747); Davis v. State, 180 Ga. App. 190, 191 (2) (348 SE2d 730); Cunningham v. State, 255 Ga. 35, 37 (4) (334 SE2d 656). This enumeration of error is without merit.

2. Defendant enumerates as error the denial of his motion to sever the offenses, arguing that the offenses of child molestation and cruelty to children were unrelated. “Offenses may be joined for trial when they are based on a series of acts connected together or on a series of acts constituting part of a single scheme or plan. Quick v. State, 166 Ga. App. 492, 494 (3) (304 SE2d 916) (1983). If the offenses are joined for either reason the defendant does not have an automatic right of severance. Id. The trial judge has discretion concerning the severance of a trial when there is evidence of two or more offenses based on a series of connected acts or constituting [parts] of a single scheme or plan. Johnson v. State, 158 Ga. App. 398, 399 (4)(280 SE2d 419) (1981).” Mathis v. State, 172 Ga. App. 314 (2) (323 SE2d 227). Pretermitting any issue presented by the absence from the record of any ruling on defendant’s motion to sever, we note that in the case sub judice the victim under each count of the indictment was a minor child of the woman with whom defendant had been (at least intermittently) living, and the offense involved some physical abuse of the child. There was sufficient evidence of a series of acts connected together or of a series of acts constituting a single scheme or plan. Mathis v. State, 172 Ga. App. 314 (2), supra; Gober v. State, 247 Ga. 652, 653 (278 SE2d 386).

3. Defendant contends the trial court erred in denying his general demurrers to the indictment. Defendant contends that the indictment was vague and covered a period of time so lengthy that it did not enable defendant to adequately prepare a defense. Defendant was charged with child molestation in that between October 1st and October 30th, 1984 defendant, “did an indecent act, to wit: placed his penis between the legs of [the victim], a child under 14 years of age, with intent to satisfy the sexual desires of said accused . . .” The language of the indictment properly alleged the offense of child molestation. “[A]n indictment sufficient to state a crime in violation of an appropriate statute (which we find to be true in this case) will not be stricken on a demurrer generally asserting that the indictment is vague, uncertain and indefinite. Jones v. State, 115 Ga. 814 (42 SE 271).” Lush v. State, 168 Ga. App. 740, 742 (3) (310 SE2d 287). Nor do we find any indication that the period of time covered by the indictment impaired defendant’s ability to adequately prepare a proper defense. See in this regard Keri v. State, 179 Ga. App. 664, 668 (4) (347 SE2d 236). “[T]he true test of the sufficiency of the indictment is not ‘whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, “and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.” ’ Walker v. State, 146 Ga. App. 237, 241 (246 SE2d 206) and cits.” State v. Black, 149 Ga. App. 389, 390 (2) (254 SE2d 506). The indictment in the case sub judice satisfies this test. See also Fletcher v. State, 157 Ga. App. 707 (2) (278 SE2d 444).

4. Defendant contends that the trial court erred in not granting his motion for new trial when after a period in excess of one year elapsed and the trial transcript of the defendant’s trial was not prepared and submitted, so that defendant could proceed with his appeal. The jury returned its verdict on March 20, 1985, and defendant was sentenced on March 27, 1985. Defendant’s motion for new trial, raising the general grounds, was filed on April 9, 1985, and amended on May 13, 1986, to raise the issue of the delay in preparation of the transcript. The motion for new trial was amended a second time on July 11, 1986, to raise additional issues. The trial transcript was, filed on June 13, 1986. The motion for new trial was denied July 22, 1986, and the notice of appeal filed August 8, 1986.

The effect of such delays in transcript preparation is governed by the balancing test set forth in Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) and adopted in Graham v. State, 171 Ga. App. 242, 250 (7) (319 SE2d 484). Applying the four factors of that test to the case sub judice, we find although there was a delay in excess of one year “ ‘(t)he mere passage of time is not enough, without more, to constitute a denial of due process.’ Hughes v. State, 228 Ga. 593 (1a) (187 SE2d 135) (1972).” Graham v. State, 171 Ga. App. 242, 250 (7), supra. The reason for delay is not shown in the record. The defendant attempted to assert his right by amendment to his motion for new trial and by letter to the court reporter dated October 10, 1985. Finally, we find no indication of any prejudice to defendant. “ ‘Unless it clearly appears that the delay in filing the transcript prevented the presentation of an adequate appeal or impaired a defense which would otherwise be available to an appellant where a new trial is ordered due to trial error, an appellant has not suffered the prejudice which turns a transcript delay into a violation of due process of law. . . . Since (defendant) did not make the requisite showing, the delay in filing the transcript is not adequate grounds on which a new trial should be granted.’ Graham v. State, 171 Ga. App. 242, 250 (7), supra. This enumeration of error is without merit.” Proffitt v. State, 181 Ga. App. 564, 566 (3) (353 SE2d 61).

Decided May 14, 1987.

Joseph J. Saia, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, James E. Sherrill, J. David Fowler, Assistant District Attorneys, for appellee.

Additionally, while defendant argues that the transcript shows an absence of sufficient evidence to authorize a conviction for child molestation, we do not find this assertion to be correct. Any rational trier of fact would be authorized to find from the evidence adduced at trial that defendant was guilty beyond a reasonable doubt of the offense of child molestation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Sognier and Beasley, JJ., concur.


text:
    73826.
    BURBRIDGE v. THE STATE.
    (357 SE2d 279)
   Sognier, Judge.

Appellant was convicted of giving a false name to a police officer and he appeals.

1. Appellant contends the trial court erred by denying his motion for a new trial based on the general grounds. However, there is no transcript of trial and in the absence of a transcript, we cannot consider an enumeration of error based on the evidence or proceedings at trial. Brown v. State, 223 Ga. 540, 541 (2) (156 SE2d 454) (1967); Tauber v. State, 168 Ga. App. 53 (308 SE2d 419) (1983).

2. Appellant contends the trial court erred by refusing to hear evidence at the hearing on his motion for a new trial in connection with an alleged violation of appellant’s right not to incriminate himself and denial of his right to effective assistance of counsel. Appellant’s motion for a new trial and the amendments thereto make no allegation of ineffective assistance of counsel, nor was this issue raised at the hearing on appellant’s motion. This court will not consider questions raised for the first time on appeal. Bowen v. State, 173 Ga. App. 361, 362 (4) (326 SE2d 525) (1985).

Decided April 28, 1987

Rehearing denied May 15, 1987

Frank B. Hester, for appellant.

John C. Carbo III, Solicitor, for appellee.

In regard to the alleged violation of appellant’s right against selfincrimination, appellant contends he was not warned of his Miranda rights (Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694)) before he was asked to produce identification. Miranda warnings are not required when a person responds to an officer’s initial inquiry at an on-the-scene investigation which has not become accusatory, Collins v. State, 154 Ga. App. 651, 653 (3) (269 SE2d 509) (1980), as was the case here. Appellant also argues that there was no proof that the deputy sheriff who stopped him at the airport was a certified law enforcement officer or deputy sheriff. These are issues which should have been raised at trial, and to hold an evidentiary hearing on such issues at a hearing on a motion for a new trial would be, in effect, a retrial of appellant’s case. There is nothing to indicate that any evidence on such issues was newly discovered or was not available prior to appellant’s trial. Further, as stated in Division 1, in the absence of a transcript enabling us to determine whether objections were made to the testimony of State witnesses on these issues, or what rulings, if any, were made by the trial court, we cannot consider an enumeration of error based on evidence or proceedings at trial. Brown, Tauber, supra. See also Maroney v. State, 173 Ga. App. 434 (327 SE2d 231) (1985).

Judgment affirmed.

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


author: Carley, Judge.

text:
    73942.
    HOPSON et al. v. HICKMAN.
    (357 SE2d 280)
   Carley, Judge.

Appellee-employee suffered an on-the-job injury to his spinal cord which resulted in quadriplegia. Appellant employer and insurer have never controverted appellee’s entitlement to receive workers’ compensation income benefits as the result of his injury. What appellants do contest is the extent to which OCGA § 34-9-200 entitles appellee to receive workers’ compensation medical benefits.

The issue of the extent of appellee’s entitlement to medical benefits arises from the following facts: After appellee’s hospitalization, he moved into his parents’ home. At appellants’ considerable expense, the home had been renovated to accommodate a quadriplegic resident. Appellee’s mother initially served as appellee’s around-the-clock attendant. However, appellants subsequently agreed that appellee’s at-home attendant care should be provided, at least partially, by compensated third parties. Accordingly, at their expense, appellants authorized the Medical Personnel Pool, a private agency, to provide attendant care to appellee from 9 a.m. to 11 p.m. on a daily basis. From 9 a.m. to 1 p.m., appellee’s attendant was a licensed practical nurse. From 1 p.m. to 11 p.m., appellee’s attendant was an aide. Appellee’s mother continued to provide attendant care for the remaining 10 hours of each day. This arrangement proved to be physically and mentally exhausting for appellee’s mother. Appellee and his parents agreed ampng themselves that he could have their renovated house and that they would move elsewhere. As the result of this intra-family agreement, appellee filed a workers’ compensation claim for medical benefits based upon 24-hour attendant care to be provided entirely by licensed practical nurses.

Appellee’s claim came on for a hearing before an administrative law judge (ALJ). After hearing the evidence, the ALJ found that appellee’s physical condition warranted 24-hour attendant care and that the appropriate level of that continuous care would be that such as licensed practical nurses were trained to provide. The award of the ALJ “directed [appellants] to authorize Medical Personnel Pool to furnish round-the-clock continuous care to [appellee] by Licensed Practical Nurses at [appellants’] expense. . . .” Upon its de novo review, the Full Board adopted the award of the ALJ as its own. On appeal to the superior court, the award of the Full Board was affirmed. This court granted appellants’ application for a discretionary appeal from the superior court’s affirmance of the award.

1. Appellants urge that no award for in-home attendant care is authorized under our Workers’ Compensation Act and they rely upon Insurance Co. of N. A. v. Money, 152 Ga. App. 72 (262 SE2d 240) (1979) for this proposition. In Money, “[t]he claimant was awarded $450 for the payment of the services of her daughter who cared for her for some time after her confinement to the hospital. Her doctor had advised her that she should have someone to assist her in her home during her period of recovery. While it would seem that this was an expense which was the direct result of her illness [, this court held that it could find] no authorization for the payment of the services for non-medical personnel in the Workers’ Compensation Act.” Insurance Co. of N. A. v. Money, supra at 72 (2). “The only portion of [former OCGA § 34-9-200] that might reasonably be interpreted to include the type services rendered by the claimant’s daughter is that which states ‘medical, surgical, hospital and other treatment. ’ While it may have been necessary for the claimant to have someone to assist her in her home during her period of recovery, it cannot be said that such services was ‘treatment’ of the claimant.” (Emphasis in original.) Insurance Co. of N. A. v. Money, supra at 73 (2).

It would appear that the decision in Insurance Co. of N. A. v. Money does not constitute applicable authority for the resolution of the case sub judice. Money was decided under former OCGA § 34-9-200. Ga. L. 1985, pp. 727, 730 struck former OCGA § 34-9-200 in its entirety and enacted existing OCGA § 34-9-200 in its stead. Although appellee was injured in 1983, the 1985 enactment was in effect at the times relevant to this appeal. It has been held that the 1985 enactment is to be retroactively applied in those cases which involve preexisting compensable on-the-job injuries, since to do so “would not render compensable an injury which would not otherwise be compensable but would, at most, merely expand the scope of treatment required to be provided for an injury the compensability of which is not in question.” (Emphasis supplied.) Thompson v. Wilbert Vault Co., 178 Ga. App. 489, 491 (343 SE2d 515) (1986). If former OCGA § 34-9-200 is inapplicable authority, the holding of Money, supra, is likewise inapplicable. The provisions of existing OCGA § 34-9-200 (a) are: “The employer shall furnish the employee entitled to benefits under this chapter compensation for costs of such medical, surgical, and hospital care and other treatment, items, and services which are prescribed by a licensed physician, . . . which in the judgment of the State Board of Workers’ Compensation shall be reasonably required and appear likely to effect a cure, give relief, or restore the employee to suitable employment.” (Emphasis supplied.) This provision clearly is statutory authorization for an award such as that which was made to appellee in the case sub judice. Regardless of whether 24-hour in-home attendant care by licensed practical nurses is ultimately considered to be “other” medical “treatment” or “other” medical “services,” there was evidence of record that licensed physicians have actually prescribed just such a high level of attendant care for appellee so long as he maintains his independent living arrangement.

Moreover, even assuming the inapplicability of existing OCGA § 34-9-200 in this case, Insurance Co. of N. A. v. Money, supra, would nevertheless be distinguishable on its facts. Here, the contemplated in-home attendant care is to be provided by trained medical personnel. The care to be provided does not consist merely of assisting one through his in-home convalescence. Appellee’s attendants are to perform services of a medical nature which must of necessity be performed for one who suffers from quadriplegia and who is no longer receiving institutionalized hospital care. Under these circumstances, we hold that the recovery of the cost of at-home attendant care by licensed practical nurses would be authorized even under former OCGA § 34-9-200 (a), as constituting “other treatment” for a quadriplegic who is not receiving institutional care. Cf. Anderson v. Martin, 107 Ga. App. 309 (130 SE2d 174) (1963). Compare Bituminous Cas. Corp. v. Wilbanks, 60 Ga. App. 620 (4 SE2d 916) (1939); Insurance Co. of N. A. v. Money, supra.

Notwithstanding the medical evidence adduced by appellants to the effect that continuous in-home attendant care by licensed practical nurses was not warranted, the award to appellee of the medical benefits based upon 24-hour at-home attendant care to be provided by licensed practical nurses was supported by sufficient evidence. There was also sufficient evidence to support the finding that “the most reliable and most appropriate [provider of that] attendant care would be ... an agency which is set up to provide that care.” “Because we do not read the prior version of OCGA § 34-9-200 (a) as imposing an arbitrary limit on the amount of treatment the board might deem necessary to afford full relief to an injured employee, and because, even if we did, the [1985] amendment would [be applicable insofar as it] affect[s] only the extent of the employee’s remedy, we hold that the superior court [did not err] in [affirming] the board’s award” of 24-hour in-home attendant care to appellee to be provided by licensed practical nurses. Thompson v. Wilbert Vault Co., supra at 492.

2. Appellants urge that the award is erroneous insofar as it names a specific entity as the provider of appellee’s in-home attendant care. Appellants rely upon Georgia Power Co. v. Brown, 169 Ga. App. 45, 50 (3) (311 SE2d 236) (1983) as authority for the proposition that the Board was not authorized to name the provider of appellee’s in-home attendant care.

The issue in Brown, supra, was whether the Board was authorized to make an ex parte change as to claimant’s health care provider. Prior to the hearing in this case, however, appellee was already receiving partial in-home attendant care from the Medical Personnel Pool, an agency that appellants had themselves selected to provide appellee with that care. “An employee may accept the services of a physician selected by the employer from the panel. . . .” OCGA § 34-9-201 (c). Thereafter, appellee requested that a change be made as to the in-home attendant care that he was then receiving, so that the level of that care would be expanded to provide him with licensed practical nurses on a 24-hour basis. Appellee was authorized to make such a request and the Board was authorized to consider it. “Upon the request of an employee, or an employer, the board may order a change of . . . treatment. . . .” OCGA § 34-9-201 (d). The Board granted appellee’s request that he be provided more extensive in-home attendant care than he had been receiving. As we have stated above, the Board was authorized to find that the higher level of attendant care was, under the circumstances, “reasonably required and appeared] likely to . . . give relief. ...” OCGA § 34-9-200 (a). Thus, in granting appellee’s request, the Board did not undertake to effect a change in the health care provider that had been furnishing in-home attendant care to appellee. The Board merely directed that the provider of appellee’s more extensive treatment would continue to be the same provider that appellants had themselves initially selected to provide that treatment on a more limited basis.

Under the circumstances, there was no ex parte change by the Board in appellee’s health care provider such as occurred in Brown, supra. There was only a change in the level of treatment that appellee’s current health care provider was to provide to him. The Board was authorized to make this change in treatment pursuant to OCGA § 34-9-201 (d). There was no error. When the Medical Personnel Pool submits its bills for appellee’s treatment, appellants will, at that time, be free to contest the reasonableness of those charges if it wishes. See OCGA § 34-9-203; Bibb Mfg. Co. v. Darsey, 122 Ga. App. 420 (177 SE2d 165) (1970).

3. Appellants themselves have never requested that a change be made in the provision of attendant care to appellee. To date, appellants’ only concern has been to contest the extent to which they are obligated under the Workers’ Compensation Act to provide appellee with 24-hour in-home attendant care by licensed practical nurses. As discussed in Division 1 of this opinion, the Workers’ Compensation Act authorizes some forms of in-home attendant care and the evidence in this case authorized the finding that appellee is entitled to be provided with that care by licensed practical nurses on a continuous basis. However, we are aware of nothing which would preclude appellants from requesting, if circumstances warrant, a change in either the level of attendant care that is to be provided to appellee or the provider thereof. Pursuant to OCGA § 34-9-201 (d), it would appear that appellants can request a change from an in-home to an institutional attendant care provider for appellee or request a change in the level of attendant care that will be provided to appellee if he continues to remain in his parents’ former home. We do not hold in this case that the attendant care to which appellee is entitled under the Workers’ Compensation Act must always be provided in his home or must always be provided by licensed practical nurses. All we hold is that the cost of in-home attendant care by licensed practical nurses is compensable under former and existing OCGA § 34-9-200, and that the evidence in this case authorized the award to appellee of medical benefits covering that care.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.

Decided May 4, 1987

Rehearing denied May 15, 1987

John M. Williams, Benjamin H. Terry, for appellants.

Alan Nicholson, Gray D. L. Smith, Gregory A. Griffin, for appellee.


text:
    74141.
    CHARVIN v. THE STATE.
    (357 SE2d 284)
    Decided May 4, 1987
    Rehearing denied May 15, 1987

      Ike A. Hudson, for appellant.

      Arthur E. Mallory III, District Attorney, Anita S. Brochstein, Assistant District Attorney, for appellee.
   Carley, Judge.

Appellant was tried before a jury on an accusation charging him with abandonment of a child, a violation of OCGA § 19-10-1. The jury found that appellant was the father of the child and that he was guilty of abandonment. He appeals from the judgment of conviction and sentence entered on the jury’s verdict.

The trial court granted the State’s motion in limine, limiting inquiry into the topic of the past sexual activities of the child’s mother to such conduct as had occurred within the one-year period of time prior to the birth of the child. On appeal, the granting of the State’s motion in limine is the sole enumeration of error. The contention is that the trial court’s ruling erroneously restricted appellant’s right to a thorough and sifting cross-examination of the child’s mother. “Under the circumstances disclosed in the present case we think the trial court properly excluded any probe into the sexual relations of the mother, if any, with any other man at a time completely remote to the time of conception of the child born on [May 5, 1986]. Conduct of this nature was not admissible on the issue of paternity or for the purposes of impeachment.” Travis v. State, 122 Ga. App. 800, 801 (2) (178 SE2d 741) (1970). There was no error.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


text:
    74169.
    JONES v. CLARK et al.
    (357 SE2d 285)
    Decided May 4, 1987
    Rehearing denied May 15, 1987
    Pauline E. Jones, pro se.

      Michael T. Bennett, Arnold E. Gardner, Robert G. Tanner, for appellees.
   Carley, Judge.

Appellant-plaintiff filed a pro se action, alleging that appelleedefendants had committed acts of medical malpractice and had also wrongfully caused her involuntary commitment to a mental health facility. Appellees answered, denying the material allegations of appellant’s complaint. Appellees subsequently moved for summary judgment, supporting their motion with evidence demonstrating that, as a matter of law, they were entitled to a judgment in their favor as to appellant’s claims. See generally Williams v. Smith, 179 Ga. App. 712 (348 SE2d 50) (1986). In opposition, appellant submitted nothing which would show the existence of a genuine issue of any material facts relevant to her claims. The trial court conducted a hearing on appellees’ motion and granted summary judgment in their favor. Appellant appeals.

Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . .” OCGA § 9-11-56 (c). Having reviewed the evidence of record in this case, we hold that appellees met their evidentiary burden and that the trial court correctly granted their motion for summary judgment. See generally Williams v. Smith, supra.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


text:
    74064.
    STATE OF GEORGIA v. MOZLEY et al.
    (357 SE2d 313)
   McMurray, Presiding Judge.

This is the second appearance of this case in which the sole issue on appeal is whether a financing statement filed by appellees (the Mozleys) against John Jacobson in Cobb County is valid and takes precedence over the State’s tax lien. When the case was tried in the superior court, the court, sitting without a jury, held that the Mozleys’ financing statement took priority over the State’s tax lien. On the first appeal, the case was remanded to the trial court for further findings of fact and conclusions of law. State of Ga. v. Mozley, 171 Ga. App. 1, 3 (3) (318 SE2d 647) (1984).

Briefly stated, the controversy centers on whether the financing statement properly named as debtor Jacobson, a Cobb County resident to whom the Mozleys sold two package stores and contents, or if the actual debtor was a subsequently formed corporation. A complete statement of the facts giving rise to the litigation may be found in the prior opinion. After reviewing these facts, this court determined that under OCGA § 11-9-310, a perfected security interest takes priority over all liens found in OCGA § 44-14-320; that the case was not controlled by OCGA §§ 48-5-28 or 48-2-56 because those provisions are not applicable to sales taxes; and that the issue of whether the financing statement was properly filed in Cobb County was not raised in the court below and therefore could not be addressed.

Concluding that the sole question remaining was whether the financing statement was valid and took priority over the State’s tax lien under OCGA § 11-9-310, this court was unable to reach a decision because the findings of fact and conclusions of law were inadequate. The case was remanded with direction that the trial court determine “[t]he issue of whether a corporation was formed ... in order to decide the remaining issues in the case[,] especially whether it was formed prior to the filing of the Mozleys’ financing statement on December 12, 1980. In finding that the Mozleys had no knowledge of the formation of the corporation ‘constructive or otherwise,’ the court overlooks the U.C.C. requirement of good faith, and the implications flowing from that requirement, as to whether they were required either to file a corrected financing statement as provided under OCGA § 11-9-402 (2) (d) . . . , or to file originally under the corporation’s name in Fulton County. [Cit.]

“A second factual determination must be made as to whether any assets were transferred to the corporation. . . . This determination would have to include a construction of, and the effect of, the security agreement which anticipated such a transfer. If no [secured] assets were transferred, then the court would have to determine [what] assets were actually transferred, because the evidence showed that the corporation purchased certain replacement inventory with funds [from] the corporate bank account. It must be further determined whether this inventory would be considered to be an ‘accession’ under the security agreement.” State of Ga. v. Mozley, 171 Ga. App. 1, supra at 3.

Upon remand, a hearing was held by the same trial court judge who, after considering all the evidence presented in addition to supplemental briefs filed by both parties, made the following findings of fact and conclusions of law:

“FINDINGS OF FACT

“The plaintiffs entered into an agreement dated October 14, 1980, whereby they would transfer to John L. Jacobson their interest in the businesses known as General Package Store and North Fulton Package Store. That the agreement expressly contemplated the formation of a corporation wherein John L. Jacobson would own ninety-eight (98%) percent of the stock and the Mozleys would own two (2%) percent of the stock. That the agreement also provided that Jacobson would furnish to the Mozleys evidence and proof of the actual formation of the corporation and that he would cause the issuance of two (2) shares of stock to the Mozleys, in compliance with the agreement. That on December 4, 1980, Articles of Incorporation were issued for Fulton County Spirit Shop, Ltd. by the Secretary of State.

“That Jacobson never informed the Mozleys of the formation of the corporation, nor furnished them with any evidence or proof of such formation, nor issued any stock to them. That since the Mozleys had not been notified by Jacobson of the formation of the corporation pursuant to the agreement, and since the contemplated name of the corporation, that is Fulton County Spirit Shop, Ltd. had been used by Jacobson from the beginning, that is before December 4, 1980, the Mozleys had no actual or constructive knowledge that such businesses were being operated by the corporation rather than the individual, Jacobson. That there is no documentation concerning the transfer of assets by John L. Jacobson to Fulton County Spirit Shop, Ltd. That there is no evidence of any actual transfer of assets to Fulton County Spirit Shop, Ltd.

“That on December 12, 1980, the Mozleys filed a UCC financing statement in Cobb County under the name of John L. Jacobson. That the plaintiffs acted in good faith in filing said financing statement against John L. Jacobson in Cobb County. That there is evidence that Fulton County Spirit Shop, Ltd. purchased certain replacement inventory; however, there is no evidence of what inventory was or was not replaced. That the parties contemplated in their agreement and the bill of sale security agreement contemplated that the after-acquired inventory would be security for the note.

“That the Mozleys sued John L. Jacobson in Cobb County, which litigation was settled by a settlement agreement dated January 22, 1982, wherein Jacobson stated that he operated businesses known as General Package Store and North Fulton Package Store and that he would continue to operate said businesses. That on February 18,1982, the State Tax Executions were recorded in Fulton County. That the financing statement filed December 12, 1980, was filed prior to the docketing of the tax lien February 18, 1982.

“CONCLUSIONS OF LAW

“That the plaintiffs had a perfected security interest in the inventory and assets of the liquor store. That the plaintiffs perfected security interest takes priority over the State’s tax lien. That the perfected security interest includes after-acquired property.”

The State’s enumerations of error on this appeal all pertain to the trial court’s findings of fact and the conclusions of law based thereupon. “The sole purpose of vacating the trial court’s judgment was to enable the trial court to enter findings of fact and conclusions of law . . . and to reenter a proper judgment based thereon, from which an appeal would then lie. When an appellate court vacates a trial court’s judgment and remands for findings of fact and conclusions of law on a specific issue, this does not permit the trial court to reopen the case for other purposes. Instead, the scope of the trial court’s authority to act on remand is limited to the specific purpose of making the applicable findings and conclusions.” Marsh v. Way, 255 Ga. 284, 285 (336 SE2d 795) (1985). In view of the remand of this case for the determination of specified questions of fact, the State’s arguments that there was no evidence to support the trial court’s findings are unavailing.

We likewise find no merit in the State’s contention that the Mozleys’ testimony was contradictory and thus must be construed against them. “In each case, whether on motion for summary judgment or at trial, it must be decided if the testimony of a party-witness is contradictory. ... We point out that even where the testimony is contradictory, if a reasonable explanation is offered for the contradiction, the testimony will not be construed against the party-witness. The burden rests upon the party giving the contradictory testimony to offer a reasonable explanation, and whether this has been done is an issue of law for the trial judge.” Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986). It seems apparent that the trial judge, who heard the evidence and arguments offered by the parties, concluded that the Mozleys’ attempts to maintain the lease for Mr. Jacobson, which were separate and apart from the transactions of the sale of the business, presented a reasonable explanation for the contradictions challenged by the State.

“Findings of fact of a court sitting without a jury are not to be disturbed on appeal unless clearly erroneous. OCGA § 9-11-52 (a). The ‘clearly erroneous’ standard requires reversal of a trial court’s findings of fact if there is no evidence to support them. [Cit.]” Richmond County Hosp. Auth. v. Richmond County, 255 Ga. 183, 191 (2) (336 SE2d 562) (1985). It is implicit from the remand of this case to decide the unresolved issue that the evidence was in conflict, but there was evidence to support the trial court’s findings and conclusions. Consequently, they were not clearly erroneous and reversal is not demanded.

Decided May 15, 1987.

Michael J. Bowers, Attorney General, H. Perry Michael, First Assistant Attorney General, Verley J. Spivey, Senior Assistant Attorney General, Grace E. Evans, Assistant Attorney General, for appellant.

James W. Friedewald, for appellees.

Judgment affirmed.

Sognier and Beasley, JJ., concur.


text:
    74201.
    SMITH v. GWINNETT COUNTY.
    (357 SE2d 316)
   Sognier, Judge.

Macklyn Smith, Sr., an attorney, represented Randolph Simpson, the Gwinnett County Coroner, in an action to expunge certain portions of the General Presentments of the March Term, 1985, Gwinnett County Grand Jury. In re Gwinnett County Grand Jury Proceedings, 180 Ga. App. 241 (348 SE2d 757) (1986). After disposition of that case, Smith sought payment from the county of his fee. When the county refused payment, Smith filed this action. The trial court denied Smith’s motion for summary judgment and granted the county’s motion to dismiss; Smith appeals.

Appellant contends the trial court erred by granting appellee’s motion to dismiss and denying appellant’s motion for summary judgment because Simpson was exercising his right as an elected official to bring the expungement action, and thus was constitutionally entitled to have his attorney paid by the county. The appeal was originally filed in the Supreme Court, and transferred to us without opinion. Whatever the merits of appellant’s argument concerning Simpson’s constitutional right, it need not be addressed here, as the right asserted is personal to Simpson, who is not a party to this action. See generally Ragsdale v. New England Land &c. Corp., 250 Ga. 233, 234 (1) (297 SE2d 31) (1982).

OCGA § 36-10-1 provides that “[a]ll contracts entered into by the county governing authority with other persons in behalf of the county shall be in writing and entered on its minutes.” It is well established law that even where such a contract exists, if the requirements of the statute have not been met it will not be enforced. Hatcher v. Hancock County Commrs., 239 Ga. 229, 230 (2) (236 SE2d 577) (1977); PMS Constr. Co. v. DeKalb County, 243 Ga. 870, 871 (1) (257 SE2d 285) (1979). It is uncontroverted that appellant not only did not meet the requirements of the statute, but that he had no contract with the county. The trial court therefore properly granted appellee’s motion to dismiss and denied appellant’s motion for summary judgment.

Decided May 15, 1987.

Macklyn A. Smith, Sr., pro se.

Phillip T. Schley, Jr., for appellee.

Judgment affirmed.

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


text:
    74234.
    HERROD v. THE STATE.
    (357 SE2d 317)
   McMurray, Presiding Judge.

Defendant appeals his conviction of hunting at night with the aid of a light, hunting from a motor vehicle and hunting from a public road. Held:

1. The State’s evidence shows that on the night of October 28, 1985, at approximately 9:05 p.m., Chief Clark of the Dawson Police Department was at his home on a sparsely settled rural road when he observed a “vehicle going down the road at a very slow rate with a spotlight shining on both sides of the field from one field to the other, back and forth.” Chief Clark watched the vehicle “until they went over a little rise approximately a quarter of a mile down the road from my house, then I heard a shot that sounded like it came from a high powered rifle.” Chief Clark got in his jeep and followed the vehicle, found the vehicle with the spotlight still shining into the fields alongside the road, obtained a tag number and description of the vehicle, observed the driver of the vehicle whom he later identified as defendant, saw that there were two passengers in the vehicle, but Chief Clark did not succeed in his attempts to stop the vehicle.

Defendant contends the trial court erred in admitting evidence of a similar violation of the game laws. The similar incident occurred on November 3, 1985 (or six days after the incident at issue), and resulted in defendant’s plea of guilty to the oifense of hunting on the lands of another without permission. In the similar incident defendant and other individuals had shot from a public road and killed a deer on private property in Lee County. The identity of defendant as the perpetrator of both incidents was shown. The incidents were sufficiently similar that proof of the independent crime tends to prove the offense charged in that both involve defendant hunting from a public road. Consequently, the trial court did not err in admitting the similar transaction evidence to show identity, motive, plan, scheme, bent of mind and course of conduct. Cunningham v. State, 255 Ga. 35, 37 (4) (334 SE2d 656).

Decided May 15, 1987.

Charles R. Hunt, for appellant.

Charles M. Ferguson, District Attorney, for appellee.

2. Defendant enumerates as error the trial court’s refusal to give in a charge to the jury to-wit: “I charge you that there is a presumption that no crime has been committed and the burden is on the State to prove beyond a reasonable doubt that a crime was, in fact, committed.” Defendant cites Burge v. State, 103 Ga. App. 682, 683 (2) (120 SE2d 200) as authority for this requested charge.

“It is not necessary to include the exact language of written requests to charge when the same principles are given in the general charge. Shirley v. State, 245 Ga. 616, 619 (3) (266 SE2d 218).” Pennyman v. State, 175 Ga. App. 405, 407 (1) (333 SE2d 659). In the case sub judice, the substance of defendant’s requested charge was contained in the trial court’s general charge on the State’s burden of proof. The trial court charged as to the presumption of defendant’s innocence and that “this presumption surrounds him and protects him until it is overcome by the State with evidence which is sufficient to convince you beyond a reasonable doubt as to the guilt of the accused. No person shall be convicted of any crime unless and until each element of the crime is proven beyond a reasonable doubt and to a moral and reasonable certainty.” See also Rowell v. State, 176 Ga. App. 309, 310 (3) (335 SE2d 689); and Johnston v. State, 178 Ga. App. 219, 221 (3) (342 SE2d 706). This enumeration of error is without merit.

Judgment affirmed.

Sognier and Beasley, JJ., concur.


author:
McMurray, Presiding Judge.
      Beasley, Judge,

text:
    74262.
    HIGGINBOTHAM et al. v. HOLLIDAY CONSTRUCTION COMPANY.
    (357 SE2d 319)
   McMurray, Presiding Judge.

Plaintiff is a partnership engaged in the business of paving contractor. The defendants are various tax officials of Elbert County. Named as defendants are Higginbotham, Tax Collector; Bond, Chairman of the County Board of Tax Assessors; the County Board of Equalizers; and Sanders, Tax Appraiser.

Plaintiff’s complaint alleges that it has only one place of business which is located in Meriwether County, that plaintiff owns and operates machinery and equipment which is kept and used wherever required by job locations and is subject to removal at any time according to the exigencies of plaintiff’s business; that plaintiff returned all of its machinery and equipment and was taxed thereon in Meriwether County; that one of plaintiff’s projects is roadwork on the Richard Russell Dam Project involving construction work by plaintiff in both Elbert County and in the State of South Carolina; and that notwithstanding the proper return of taxes being made by plaintiff in Meriwether County, defendants have caused an assessment made and a tax bill rendered to plaintiff on the same machinery and equipment as taxed by Meriwether County. Plaintiff’s complaint seeks a judgment declaring that plaintiff has no tax liability for the year 1981 to Elbert County and a judgment ordering defendants to refund the amount paid to the defendant tax collector of Elbert County in compliance with Code Ann. § 91A-1029 (now OCGA § 48-5-29) as a condition precedent to jurisdiction of the superior court. Defendants’ answer, as amended, raises several defenses including the failure to join proper parties defendant and that the action is an effort to sue Elbert County, and therefore, barred by sovereign immunity.

Plaintiff filed its motion for judgment on the pleadings and attached affidavits supporting its position that Meriwether County was the proper taxing authority in regard to the machinery and equipment at issue, that plaintiff had made a proper tax return on its machinery and equipment in Meriwether County, and that the Elbert County assessment was improper.

The superior court considered plaintiff’s evidence and treated plaintiff’s motion for judgment on the pleadings as one for summary judgment. The court granted a motion for summary judgment in favor of plaintiff and against defendants. Defendants appeal. Held:

To prevail on motion for summary judgment, the movant has the burden to produce evidence which conclusively eliminates all genuine issues of material fact in the case. In the case sub judice, plaintiff presented no evidence to overcome defendants’ above-mentioned defenses. Therefore, defendants were under no duty to present counter evidence in opposition to the plaintiff’s motion. Genuine issues of material fact remain for determination and the superior court erred in granting summary judgment in favor of plaintiff and against defendants. Gary v. E. Frank Miller Constr., 175 Ga. App. 443 (333 SE2d 392); Walker v. Modnar Corp., 178 Ga. App. 374, 375 (1) (343 SE2d 148).

Judgment reversed.

Sognier, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I agree that the judgment must be reversed, but for a different reason. While there may be disputed issues of fact in this case, they are not material to the heart of the problem here. Thus I would not reverse and require the fuller development of the evidence and the determination of a factfinder, because to do so would be an exercise in futility.

Plaintiff brought a suit for declaratory judgment under OCGA § 9-4-2, contending that its property was not subject to ad valorem taxation in Elbert County because it was already being taxed in Meriwether County, where it was a resident and domiciliary. Plaintiff sought a declaration to this effect so as to avoid double taxation, and a refund of the 1981 taxes it had paid to Elbert County.

The legislature has provided an orderly administrative procedure for taxpayers to obtain refunds when they claim that the tax is erroneously or illegally assessed and collected. OCGA § 48-5-380. Subsection (c) provides that if the refund is denied by the governing authority (or is not acted on within a specified time), the taxpayer “shall have the right to bring an action for a refund in the superior court of the county in which the claim arises.” As this Court twice said in Marconi Avionics v. DeKalb County, 165 Ga. App. 628, 629, 630 (302 SE2d 384) (1983), the statute “clearly” sets forth a procedure for obtaining tax refunds. The county governing authority has the power to hear and determine applications seeking refund, “to the extent of the interest of the county in the matter.” OCGA § 48-5-241 (a).

Here there is no allegation that the taxpayer has exhausted the administrative remedy which keeps such a question out of the court system in the first instance and relegates it first to the taxing authority. That is, it has not been denied a refund by the governing authority or by the defendants. A declaratory judgment action is not an available remedy in these circumstances.

As in Moss v. Cen. State Hosp., 176 Ga. App. 116, 118 (335 SE2d 456) (1985), “[t]here being available a special statutory remedy which provides sufficient protection for the rights of the parties . . ., a declaratory judgment is not authorized.” There is no showing that the administrative remedy would not afford as complete protection as would a declaratory judgment. See also George v. Dept. of Natural Resources, 250 Ga. 491 (299 SE2d 556) (1983); Ledford v. Dept. of Transp., 253 Ga. 717 (324 SE2d 470) (1985).

I recognize that in those two cases the administrative procedure was pending, raising the additional problem of interference with the administrative agency. But even if the present suit is pre-pendency, declaratory judgment is foreclosed. As restated in Moss, supra at 118, “this rule applies not only when the other statutory remedy is in progress or is pending, but also when it is available but has not yet been instituted. Benton v. Gwinnett County Bd. of Education, 168 Ga. App. 533 (309 SE2d 680) (1983).” To allow otherwise would constitute another kind of interference, that being interference “with the rights of the parties under the special statutory remedy.” Moss, supra at 118, and cases cited therein.

Decided May 15, 1987.

E. Freeman Leverett, Cynthia G. Weaver, for appellants.

Robert L. Richards, for appellee.