text:
    A01A1693.
    PARK PLACE CAFÉ, INC. et al. v. METROPOLITAN LIFE INSURANCE COMPANY et al.
    (563 SE2d 463)
   Smith, Presiding Judge.

As lessees or former lessees of shopping center space, Park Place Café, Inc. d/b/a Park Place Café, McKendrick’s, LLC d/b/a McKen-drick’s Steakhouse, Claudia Enterprises, Inc. d/b/a Mi Spia, and McKendrick Enterprises, Inc. d/b/a Elan of Atlanta brought this action for fraud and conversion against Metropolitan Life Insurance Company (MetLife) and Taylor & Mathis IV, L.P. In addition to compensatory damages, the plaintiffs sought punitive damages and attorney fees. During the time period relevant to this lawsuit, Met-Life was either the sole or joint venture owner and landlord, and Taylor & Mathis managed the property. All four plaintiffs were either wholly or principally owned and managed by Douglas McKendrick. They claimed that throughout the terms of the leases, the defendants deceitfully charged them “over and above what was believed to be the actual cost of the electricity.” Defendants moved for summary judgment on several grounds. Among other things, they argued that no viable fraud claim was raised. The trial court granted the motion, and this appeal ensued. Because we conclude that appellants failed to meet the standard for maintaining a fraud claim and also that an action for conversion was not authorized under the facts of this case, we affirm.

The relevant facts are largely undisputed. Between 1979 and 1995, plaintiffs entered into lease agreements with appellees regarding space for four restaurant or bar establishments at Park Place Shopping Center. The lease provisions concerning billing and payment for electricity form the basis of this lawsuit. The first lease, executed in April 1979 by McKendrick Enterprises, concerned space for the operation of a nightclub named “Elan of Atlanta,” which operated until April 1989 (“Elan” lease). Second, Park Place Café, Inc. entered into a lease in June 1989 (“Park Place” lease). This lease was amended and renewed in July 1994. Third, also in July 1994, appellant Claudia Enterprises, through a predecessor in interest, executed a lease for the operation of a restaurant called Mi Spia (“Mi Spia” lease). The prior lease executed by the predecessor of Claudia Enterprises was entered into in June 1990. Finally, appellant McKen-drick’s, LLC entered into a lease in April 1995 for the operation of McKendrick’s Steakhouse (“Steakhouse” lease). It appears that the latter three leases remained in effect at the time this appeal was filed.

Section 4.8 of the Elan, Park Place, and Steakhouse leases provides in relevant part as follows:

If Landlord elects to supply water, gas, electricity, sewer or scavenger service, or any other similar service, tenant agrees to purchase its requirements for the same from landlord, (or from an independent contractor designated by landlord) and to pay as additional rent the charges therefor [ ] when bills are rendered at applicable rates.

With the exception of minor spelling changes, the Mi Spia lease contains language identical to that quoted above, except that it is followed by the words “comparable to those charged by public utilities as if tenant were a direct customer thereof.”

The shopping center was sold in February 1996 to Beacon Properties, and Taylor & Mathis continued to manage the property for several months. Following this transaction, McKendrick discovered that plaintiffs had not been billed for electricity “at cost,” contrary to his assumption, from the inception of the Elan lease in 1979 but that, according to McKendrick, the defendants “had been billing plaintiffs [for electricity] at a substantial profit.” A Georgia Power “rate calculator,” was used by Taylor & Mathis to calculate plaintiffs’ monthly power bills. Under this formula, the monthly electricity statement sent to each plaintiff from Taylor & Mathis reflected a “fuel adjustment” added to the base electricity bill. According to McKendrick, he learned that the resulting bill from Taylor & Mathis “usually came out to be not double but somewhat greater than what the actual Georgia Power bill was divided by the kilowatt hours used for that period of time.” In their brief on appeal, appellees acknowledge that use of the rate calculator resulted in a “sum-of-the-parts-greater-than-the-whole result” but argue that this result was “obvious to Mr. McKendrick as he looked at multiple electricity bills each month for” the businesses. It is undisputed that the method of computing the bills was provided by Taylor & Mathis to plaintiffs with each monthly electricity statement. McKendrick acknowledged that the billing statements showed “exactly how the number was computed.”

1. We agree with appellees that they were entitled to summary judgment on the fraud claim. To prevail on such a claim, a plaintiff must show, among other things, that the defendant made a false representation with the intent to induce the plaintiff to act or refrain from acting. Johnson v. Rodier, 242 Ga. App. 496, 498 (2) (529 SE2d 442) (2000). Here, the record contains no evidence showing that appellees made any wilful misrepresentations concerning the billing of electricity. McKendrick admitted that he did not recall any conversations with Taylor & Mathis during the negotiation of the leases concerning the method of utility billing. He also acknowledged that appellees never lied to him about the method of computing electricity charges, nor did any representative tell him that they were not profiting on the rebilling of electricity.

Of course, “[suppression of a material fact which a party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.” OCGA § 23-2-53. Appellants argue that under the particular circumstances of this case, appellees were under the duty to disclose that appellants would not be billed “at cost” for electricity. According to appellants, the crux of their fraud claim is “[ajppellees’ intentional failure to disclose their intent to seize upon the deliberate ambiguity of the term ‘applicable rates’ in the various leases as justification for calculating appellants’ electricity bills in a manner that left appellees with a gigantic concealed profit on its rebillings to appellants for electrical service.” They maintain that this fraud began with the negotiation and execution of the leases and continued with monthly rebillings “that failed to reveal the huge markup that accompanied the bill.”

We find no “particular circumstances” in this case imposing a “duty to communicate” on appellees. First, as discussed above, contrary to appellants’ argument, the monthly rebillings did indicate that the electricity charges were adjusted upward, and McKendrick acknowledged that the statements he received over a period of several years reflected exactly how the charges were calculated. Second, nothing in the record shows that the parties were involved in a confidential relationship. Rather, the leases negotiated between the parties reflected arm’s length transactions between a landlord and its tenants owned in whole or part by McKendrick, who had a master’s degree in business administration and was a former CPA. These leases did not state that electricity bills would be billed to the tenants at the cost to the landlord but instead clearly stated that utilities would be billed at “applicable rates.” And in fact, the leases contained at least two provisions, concerning taxes and common area maintenance, in which the landlord’s costs were to be passed to the tenants on a pro rata basis. Furthermore, with respect to taxes, the Park Place, Mi Spia, and Steakhouse leases provided that the tenants were entitled, upon request, to a copy of the underlying tax bill. Although McKendrick argues that he once asked to see the Georgia Power bill and was told it was not his “business,” no such actual cost language or access to bills language appears in the section of leases addressing utility charges. Regardless of the fact that other utilities such as water and sewage may have been billed to appellees at the cost to the landlord, the fact that electricity might not be billed to appellants at the landlord’s actual cost was a matter specifically addressed by the leases.

One cannot claim to be defrauded about a matter equally open to the observation of all parties where no special relationship or trust or confidence exists. . . . Further, in the absence of special circumstances one must exercise ordinary diligence in making an independent verification of contractual terms and representations, failure to do which will bar an action based on fraud.

(Citations and punctuation omitted.) Life Ins. Co. of Virginia v. Conley, 181 Ga. App. 152, 153 (351 SE2d 498) (1986). The lease provision concerning utility billing was “a matter equally open to the observation of all parties” at the time the leases were negotiated, 'and McKendrick has pointed to no evidence showing that he in any manner made “an independent verification of” of his “assumptions” concerning this provision.

Relying on Reeves v. Williams & Co., 160 Ga. 15 (127 SE 293) (1925), appellants seem to argue that “particular circumstances” imposing a duty to disclose on appellees arose because appellees failed to speak when they had knowledge that McKendrick had a differing contract interpretation from that held by appellees. In Reeves, the Supreme Court of Georgia did state that when a party to a contract “knows that the other understands the contract in a different sense from that in which he himself construes it, and remains silent, the former is held bound by the meaning which he knew was entertained by the opposite party.” Id. at 21.

But here, the record does not show that appellees knew appellants held a different interpretation concerning the rebilling of electricity. McKendrick himself testified that he did not know what his understanding was of the term “applicable rates” at the time the leases were negotiated. He can hardly show that appellees knew his understanding, when he did not. Appellants argue that appellees defrauded them because appellees intended to calculate the utility charges in a manner that they knew or should have known would be contrary to the ordinary and reasonable interpretation the appellants were “most likely to apply.” (Emphasis supplied.) But as discussed above, no evidence was presented that appellees had any knowledge of the interpretation placed on the contract by appellants, and the argument that they “should have known” of appellants’ interpretation is not supported by Reeves, for that case requires the allegedly defrauding defendant to know that the other party harbors a different interpretation. Appellants simply have not shown an intentional misrepresentation by silence with regard to the phrase, “applicable rates,” and summary judgment in appellees’ favor on the fraud claim was authorized.

This conclusion applies to the Mi Spia lease as well, even though that lease contains language stating that the restaurant is to pay electricity charges “when bills are rendered at applicable rates comparable to those charged by public utilities as if the tenant were a direct customer thereof.” Appellants presented no evidence in the trial court as to the amount Mi Spia would have paid if it had been a direct customer of Georgia Power. In fact, some evidence was presented that if small users of electricity were billed as if they were direct customers, their utility costs would be high, as small users did not receive the advantage of being billed like large ones.

We note other circumstances on which appellants rely in support of their contention that their fraud action is viable. They point out that after Beacon purchased the shopping center from MetLife in 1996, Beacon undertook a review of the utility billing practices used by appellees and ultimately refunded $35,000 to the three remaining restaurants operated by appellants. Taylor & Mathis had continued managing the property for several months after the purchase by Beacon. This refund apparently represented the difference between the actual amount billed by Taylor & Mathis and the amount Beacon would have billed if Beacon had been responsible for billing from the date of acquisition. We do not find these facts controlling on the issue of whether “particular circumstances” imposed a duty to disclose on appellees. Appellees should not be held accountable for the choices of Beacon, a wholly separate business entity. Furthermore, Dudley Pryor, vice president and regional controller for Beacon, testified that the decision to issue the refund was made before the review of billing practices was completed, and Beacon ultimately decided that the electricity rebilling had been done in accordance with the lease agreements and that if they had waited, they would not have refunded any money to McKendrick. In fact, with respect to other tenants, Beacon continued to use the rebilling method used by appel-lees.

Appellants also rely on alleged statements by a Georgia Power representative at a meeting attended by representatives from Beacon and Taylor & Mathis that the rate calculator was to be used as a budgeting tool and was never intended to be used for rebilling tenants. But this statement was clearly hearsay having no probative value whatsoever. See, e.g., In re Burton, 271 Ga. 491, 494 (3) (521 SE2d 568) (1999).

2. We also agree with appellees that summary judgment was warranted on appellants’ conversion claim. We have stated that “[a]t common law actions for trover for conversion related only to tangible things so that an action for conversion as to money would lie only as to ‘withholding specific bills or coins. . . .’ [Cits.]” Kerr v. Cohen, 249 Ga. App. 392, 394 (1) (a) (548 SE2d 17) (2001). But we have also found money to “be the subject of a conversion claim as long as the allegedly converted money is specific and identifiable.” (Punctuation omitted.) Hudspeth v. A & H Constr., 230 Ga. App. 70, 71 (2) (495 SE2d 322) (1997). In Hudspeth, plaintiff gave defendant a sum certain, $13,000, which was “specifically earmarked to purchase” certain interest in real property on plaintiff’s behalf. Defendant converted this money to his own use by purchasing the interest himself. Id. We found the money at issue to be “sufficiently identifiable to support a claim in conversion. [Cit.]” Id. See also Adler v. Hertling, 215 Ga. App. 769, 773-774 (2) (451 SE2d 91) (1994) (conversion claim regarding money in account appropriate where money constituted specific identifiable funds). Here, however, the damages sought by appellants do not represent a specific, identifiable amount of money owned by them or “earmarked” for a particular purpose, which appellees have appropriated for themselves. Summary judgment on the conversion claim was therefore authorized.

Decided March 18, 2002

Reconsideration denied April 8, 2002

Winkler, DuBose & Davis, H. James Winkler, C. Wilson DuBose, Jeffrey R. Davis, for appellants.

Powell, Goldstein, Frazer & Murphy, Simon H. Bloom, Jeffrey W. Kelley, for appellees.

Judgment affirmed.

Barnes and Phipps, JJ., concur.

       McKendrick admitted that Elan breached this lease.


source: Caselaw Access Project

author: Smith, Presiding Judge. Barnes, Judge,

license: Public Domain

text:
    A01A1864.
    CROSS et al. v. TOKIO MARINE & FIRE INSURANCE COMPANY, LTD. et al.
    (563 SE2d 437)
   Smith, Presiding Judge.

Michael and Jacquelyn Cross filed suit against Tokio Marine & Fire Insurance Company, Ltd., Tokio Marine Management, Inc., and Tokio’s former attorneys (collectively Tokio), alleging they had misrepresented by several million dollars the limits of coverage of Tokio’s insured in a suit for damages filed by the Crosses against the insured after an automobile collision. The trial court granted summary judgment in favor of Tokio and denied the Crosses’ motion for partial summary judgment, and the Crosses appeal. They contend that the trial court erred in concluding that no cause of action existed under Georgia law for their claims and that no material issue of fact remained as to whether they suffered harm as a result of Tokio’s failure to disclose the policy limits accurately. They also challenge the trial court’s denial of their motion for partial summary judgment on the issue of liability, which they claim was admitted. We conclude that the trial court properly denied the Crosses’ motion for partial summary judgment because Tokio’s failure to respond to a settlement offer was not an admission of liability. We also find that the trial court properly granted summary judgment to Tokio because, although Tokio did indeed misrepresent the limits of coverage, the Crosses suffered no cognizable harm. We therefore affirm the judgment below.

The record shows that in June 1997, Tokio’s insured, Patricia Williams, and Michael Cross were involved in a vehicular accident and Cross was injured. The Crosses’ attorney sent a letter to Tokio in October 1997, citing OCGA § 33-3-28 (a) (1) and (2), and requesting the name of each insurer and the limits of coverage. Kathy Adams, a claims examiner for Tokio, responded to the letter, enclosing a copy of the declarations page of a contract of insurance issued to American Honda. That page disclosed a liability coverage limit of $1,000,000. In July 1998, the Crosses’ attorney made a demand upon Tokio to settle the Crosses’ claims for $750,000 based upon “the specials, nature of injuries and past, present and future pain and suffering.” At that time, Cross had sustained medical damages of more than $88,000 and lost wages of more than $15,000.

Shortly thereafter, Cross and his wife filed suit against Williams. A jury awarded the Crosses $1,204,000 in damages, and judgment was entered on the verdict. Approximately one month later, Tokio’s counsel first informed the Crosses’ counsel that its insured had coverage of $2,000,000, rather than the $1,000,000 that had been disclosed before suit was filed, and then informed the Crosses’ counsel that the coverage was actually $7,000,000. The judgment in the underlying lawsuit was not appealed.

This lawsuit was filed in March 2000, alleging violation of OCGA § 33-3-28 (d), false swearing under OCGA § 16-10-71, fraud and misrepresentation, and Racketeer Influenced & Corrupt Organizations Act violations and seeking pre-judgment interest under OCGA § 51-12-14 (b). The Crosses claim that because of Tokio’s misrepresentation of the coverage limits, they recovered substantially less in their original lawsuit than the full value of their claim. Tokio moved for summary judgment, alleging that no private right of action exists under OCGA § 33-3-28, that the Crosses did not make a proper demand under that statute, and that notwithstanding any misrepresentation, the Crosses received the full value of their claim in the judgment, and they accepted this in satisfaction of their claim and did not move to set aside the judgment even after they became aware of the misrepresentation. The Crosses’ motion for partial summary judgment was based upon their contention that Tokio admitted liability when it failed to respond to a letter including statements that Tokio had misrepresented coverage.

1. OCGA § 33-3-28 provides:

(a) (1) Every insurer providing liability or casualty insurance coverage in this state and which is or may be liable to pay all or a part of any claim shall provide, within 60 days of receiving a written request from the claimant, a statement, under oath, of a corporate officer or the insurer’s claims manager stating with regard to each known policy of insurance issued by it, including excess or umbrella insurance, the name of the insurer, the name of each insured, and the limits of coverage. Such insurer may provide a copy of the declaration page of each such policy in lieu of providing such information. The claimant’s request shall set forth under oath the specific nature of the claim asserted and shall be mailed to the insurer by certified mail or statutory overnight delivery. . . . (d) The information provided to a claimant or his attorney as required by subsection (a) of this Code section shall be amended upon the discovery of facts inconsistent with or in addition to the information provided.

This court has held that subsection (d) of this statute does not create a private right of action against an insurer that breaches it because the statute does not specifically include such a right and failure to comply with the statute comes within the conduct subject to sanctions by the Insurance Commissioner as the exclusive regulatory remedy. Generali—U. S. Branch v. Southeastern Security Ins. Co., 229 Ga. App. 277, 280 (2) (a) (493 SE2d 731) (1997). In Parris v. State Farm &c. Ins. Co., 229 Ga. App. 522 (494 SE2d 244) (1997), this court held that the absence of language in OCGA § 33-3-28 creating a private right of action “strongly indicates the legislature’s intention that no such cause of action be created by said statute.” Id. at 524. Here, as in Parris, “[t]he trial court did not err in its ruling in this regard.” Id.

We held in Parris that no recovery could be had for fraud or false swearing because the plaintiffs settled their claims after the insurer corrected its original misrepresentation, and they therefore settled “with full knowledge of all insurance coverage” and could show no actual damages. Id. at 525. But this court was careful to indicate that its opinion turned

on the issue of damages and does not stand for the proposition that an insurance company will be protected from liability as long as full disclosure of insurance coverage precedes a settlement. Such a rule would emasculate any duties created by OCGA § 33-3-28, the laws of fraud, and the laws of false swearing. . . . Improper insurance reporting may result in liability under a proper factual scenario.

Id. at 525-526. The Crosses contend that this is such a “proper factual scenario.” We do not agree.

In Merritt v. State Farm &c. Ins. Co., 247 Ga. App. 442 (544 SE2d 180) (2000), which was decided after the final judgment was entered in this case, this court noted that it had a “proper factual scenario” before it. Id. at 446. Merritt brought suit against State Farm for fraud, misrepresentation, false swearing, and RICO violations, claiming the insurer failed to disclose the existence of a $1,000,000 umbrella policy until after she had settled for the previously disclosed policy limits of $250,000. Guided by Parris, we reversed the trial court’s grant of summary judgment to State Farm. The record showed that State Farm’s adjuster initially concluded “without any further investigation” that the claim was valued in excess of the disclosed policy limits of $250,000. Id. at 448 (3). Almost two years after swearing that the policy limit was $250,000, State Farm reached a “regional office decision” that Merritt’s claim was worth $500,000. We concluded, therefore, that Merritt presented “some evidence from which a jury could conclude that she lost at least the use of $250,000 for some period of time” and that such damages were cognizable. Id.

In contrast, the Crosses did not settle their claims against Tokio’s insured. Their claims were fully and fairly tried before a jury, which returned a verdict based on the evidence presented of the Crosses’ damages. Insurance coverage usually is not disclosed to a jury, and the jury here returned its verdict without knowing of the existence or the amount of any insurance coverage. See Bennett v. Terrell, 224 Ga. App. 596, 597 (2) (481 SE2d 583) (1997). The Crosses therefore cannot prove the elements of causation and damages, which are essential to their claims against Tokio. They cannot show that they would have made a greater recovery but for Tokio’s misrepresentation.

The affidavits presented by the Crosses purporting to show that the conduct of the case would have differed significantly had the actual limits been disclosed do not accomplish this. Although the affidavits are characterized as having been given by “experts,” they do not specify how trial strategy would have changed or how the changes would have affected the jury. Indeed, any testimony regarding what a jury would have done under different circumstances is necessarily speculative. In relevant part, therefore, the affidavits consist of mere speculation, and “[s] peculation and conjecture by an expert [are] still speculation and conjecture.” Bankers Health &c. Ins. Co. v. Fryhofer, 114 Ga. App. 107, 111 (1) (150 SE2d 365) (1966).

Moreover, the Crosses were aware of the misrepresentation before final judgment was entered and before they accepted the check from Tokio in satisfaction of the judgment. Further, their settlement demand was for a figure below the disclosed amount. No evidence exists, beyond speculation, that they would have changed this amount had they known additional coverage existed.

Finally, in addition to these reasons the Crosses cannot succeed in this lawsuit against Tokio, they did not move to set aside the judgment in the underlying litigation. This lawsuit is therefore an indirect attack on that judgment, which is prohibited by statute. Under OCGA § 9-11-60 (b), a judgment may be attacked by a motion for new trial or a motion to set aside, and only in the court of rendition. The underlying lawsuit was prosecuted in Cobb County State Court, but this action was brought in Fulton County State Court. Therefore, contrary to the analysis in the special concurrence, the doctrines of res judicata and collateral estoppel apply here, barring relitigation of issues that were litigated or could have been litigated between identical parties or their privies. Although Tokio was not a party to the lawsuit brought by the Crosses against Tokio’s insured, it is privy to its insured because it stands in its insured’s shoes. American States Ins. Co. v. Walker, 223 Ga. App. 194, 195 (1) (b) (477 SE2d 360) (1996). The trial court therefore did not err in granting Tokio’s motion for summary judgment.

2. The Crosses argue that the trial court erred in denying their motion for partial summary judgment because Tokio admitted liability. This argument is completely without merit. They first point to a statement by Tokio in a brief in the trial court that “for purposes of this motion only, we will assume the truth of the Crosses’ allegations” and the truth of affidavits and authenticity of documents submitted by the Crosses. It is beyond cavil that such a statement does not admit liability, but serves only as a basis for argument supporting the position taken by Tokio in the motion. Such assumptions are commonly made for limited purposes only during the course of any litigation.

The Crosses also argue, relying upon OCGA § 24-4-23, that Tokio admitted liability when it failed to respond to a letter from their original counsel condemning the failure to disclose the excess insurance policy. We do not agree. The statute provides that “[i]n the ordinary course of business, when good faith requires an answer, it is the duty of the party receiving a letter from another to answer within a reasonable time. Otherwise he is presumed to admit the propriety of the acts mentioned in the letter of his correspondent and to adopt them.” This is a more specific instance of the principle embodied in OCGA § 24-3-36 that when circumstances require an answer or denial, silence may amount to an admission.

But an admission arises only from the failure to respond to a letter sent in the ordinary course of business. This letter was not sent in the ordinary course of business, but between attorneys engaged in litigation. Further, the letter itself presented an offer to settle, and it indicated that if the recipient did not respond, the offer would be withdrawn. It follows that no duty existed on the recipient to respond. Mere silence cannot establish a waiver or admission unless an obligation exists to respond. See St. Mary’s Hosp. &c. v. Cohen, 216 Ga. App. 761, 763 (1) (456 SE2d 79) (1995). The trial court did not err in denying the Crosses’ motion for partial summary judgment on this ground.

Decided February 14, 2002

Reconsideration denied April 8, 2002

Downey & Cleveland, Y. Kevin Williams, Sean L. Hynes, Johnson & Cooper, Jean E. Johnson, Jr., for appellants.

Judgment affirmed.

Phipps, J., concurs. Barnes, J., concurs specially as to Division 1.

Barnes, Judge,

concurring specially.

Although I concur fully with the conclusion and, analysis in Division 2 and concur that the trial court did not err in granting summary judgment to Tokio Marine, I write separately because I cannot agree with all of the analysis and reasoning contained in Division 1 of the majority opinion. Tokio Marine is entitled to summary judgment because the Crosses cannot show they suffered any damage as a result of Tokio Marine’s misrepresentation of the amount of the insurance coverage available to Tokio Marine’s insureds. The Crosses’ pre-trial demand was less than even the erroneously low amount of coverage they knew about, and the case was tried to a jury who awarded $1,204,000 without regard to the amount of coverage available.

I do not agree, however, with the majority’s conclusion that the doctrines of res judicata and collateral estoppel apply here. This action is not a claim for damages against the tortfeasor, which has already been tried, but a claim against the insurance company for violating the directives of OCGA § 33-3-28, which provides that an insurer which may be liable to pay a claim shall provide a statement showing the amount of its insured’s coverage. Therefore, the fact that the judgment was satisfied in the underlying claim should not foreclose this independent action against an insurance company for its failure to comply with the law of this State.

These are not claims against the opposing party, counsel for that party, or opposing witnesses. See Shepherd v. Epps, 179 Ga. App. 685, 686 (347 SE2d 289) (1986). Nor do the Crosses seek additional recovery from the former opposing party because of the same cause of action. Instead, they are suing the former opposing party’s insurer for its own actions. See Zepp v. Toporek, 211 Ga. App. 169, 172 (438 SE2d 636) (1993). Therefore, while a previous settlement or verdict may be relevant to the issue of damages, as it is here, it should not in itself prevent the claimants from bringing an action against the insurance company for failing to provide such basic information pursuant to the statute’s directive. For these reasons, I concur specially in the majority opinion.

Hall, Booth, Smith & Slover, Rush S. Smith, Jr., Jennifer L. McKernan, Paul R. Koster, Thomas A. Graham, Morris, Manning & Martin, Lewis E. Hassett, Jessica F Pardi, for appellees.

       As the trial court pointed out, this holding does not condone Tokio’s conduct, which may well be addressed by the Insurance Commissioner.


author: Smith, Presiding Judge.

text:
    A01A2101.
    STRINGER v. BUGG.
    (563 SE2d 447)
   Smith, Presiding Judge.

Connie Stringer filed suit against her former landlord, George Bugg, alleging claims for wrongful eviction, trespass, conversion, assault, violation of the Fair Business Practices Act (FBPA, OCGA §§ 10-1-390 through 10-1-407), and exemplary damages and attorney fees. The trial court granted Bugg’s motion for judgment on the pleadings with regard to the FBPA claim, granted Stringer’s motion for partial summary judgment as to Bugg’s counterclaim for rent, granted Bugg’s motion for summary judgment as to all Stringer’s remaining claims, and vacated two prior orders denying prior cross-motions for summary judgment. Implicit in these rulings is that the trial court also denied Stringer’s motion for partial summary judgment on her claims for wrongful eviction, trespass, conversion, and exemplary damages and attorney fees. Stringer appeals, contending the trial court erred in granting summary judgment to Bugg and denying her motion for partial summary judgment. Because we find that Stringer gave adequate notice of her claim under the FBPA, we reverse the trial court’s grant of summary judgment to Bugg on that claim. Because we find that Stringer’s remaining claims against Bugg are not barred by the doctrine of res judicata, we also find that the trial court erred in granting summary judgment to Bugg on these claims. Because genuine issues of material fact remain with regard to the issues raised in Stringer’s motion, however, we find that the trial court did not err in denying her motion for summary judgment. We therefore affirm in part and reverse in part.

The record shows that Stringer filed this action after the conclusion of a dispossessory action Bugg filed against her in magistrate court. Bugg filed that action on October 10, 1997. Shortly thereafter, Bugg and Stringer reached an agreement in satisfaction of that matter, and after assurances from Bugg that filing an answer would be unnecessary, Stringer did not file an answer to the dispossessory action. In violation of the agreement, Bugg obtained a writ of possession on November 21,1997, without informing Stringer he was doing so and without informing the magistrate court of the agreement. On December 4,1997, Bugg forcibly evicted Stringer from her home, setting her personal property out on the street and later refusing to allow her to reclaim certain other possessions she had left behind.

On December 16, 1997, Stringer moved the magistrate court to set aside the judgment. At a hearing on March 5, 1998, the writ of possession was set aside. The magistrate court then also dismissed the dispossessory action with prejudice and announced that it would find for Stringer in the amount of $1. But after hearing from Stringer’s attorney that Stringer was not seeking damages in that action, the magistrate court withdrew its award of a money judgment.

On April 10, 1998, over a month after it had set aside the writ, the magistrate court made written findings of fact, finding, among other things, that Bugg “had virtually forced a written agreement upon” Stringer, that Bugg had misled Stringer into failing to answer the dispossessory action, and that Bugg had “in effect accepted complete tender of payment and costs,” which was a complete defense to the dispossessory action. The magistrate court also found that in subsequently requesting a writ of possession to which he was not entitled and having it served, Bugg had “perpetrated a fraud on the court.”

On September 16, 1998, Stringer filed this action in superior court seeking damages arising out of Sugg’s actions in obtaining the writ and evicting her from the premises. In support of her motion for partial summary judgment, she filed a certified copy of the magistrate court’s findings of fact. Bugg filed his motion for partial summary judgment on the same claims, and both motions were denied. Immediately before trial, after a jury had been selected, and after hearing several motions in limine, Bugg moved for judgment on the pleadings with regard to Stringer’s claim under the FBPA. The trial court granted this motion. The trial court then reconsidered sua sponte the previously filed and denied motions for summary judgment, granted Sugg’s motion as to Stringer’s claims against him, and granted summary judgment to Stringer on Sugg’s claim against her for rent and damage to property.

1. The trial court granted Sugg’s motion for judgment on the pleadings as to Stringer’s claim for violation of the FBPA on the ground that, under OCGA § 10-1-399 (b), the notice given by Stringer was insufficient as a matter of law. That statute provides: “At least 30 days prior to the filing of any such action, a written demand for relief, identifying the claimant and reasonably describing the unfair or deceptive act or practice relied upon and the injury suffered, shall be delivered to any prospective respondent.”

Stringer’s letter to Bugg stated that Bugg had evicted her even though he had agreed not to do so and that because of the eviction, some of her possessions were stolen or broken. The letter stated Stringer’s claim that the eviction was unfair, and it requested that Bugg pay for the damage done to her family. No mention was made in the letter that a claim under the FBPA would be brought if Bugg did not respond. But this court has held that the notice requirement of OCGA § 10-1-399 (b) must be liberally construed. Lynas v. Williams, 216 Ga. App. 434, 435 (3) (454 SE2d 570) (1995). We have held that a notice is sufficient if it apprises the recipient “of the underlying facts giving rise to” the sender’s claim; it need not cite the appropriate Code section. Colonial Lincoln-Mercury v. Molina, 152 Ga. App. 379, 383 (9) (262 SE2d 820) (1979). Although the sufficiency of the notice is a question for the court, Paces Ferry Dodge v. Thomas, 174 Ga. App. 642, 643 (1) (331 SE2d 4) (1985), we conclude that the trial court abused its discretion in finding that Stringer’s notice to Bugg was insufficient as a matter of law. Stringer’s letter apprised Bugg that the eviction was “unfair” because he had proceeded with it after agreeing not to do so and that Stringer had suffered specific damages when her property was stolen or broken as a result of the eviction. The letter reasonably described “the unfair . . . act . . . relied upon and the injury suffered.” Judgment on the pleadings in favor of Bugg on Stringer’s claim under the FBPA must be reversed.

2. The trial court granted summary judgment to Bugg on Stringer’s remaining claims, finding that these claims were barred by the doctrine of res judicata. We find no merit in many of Stringer’s arguments. Stringer contends this ruling was erroneous because her claims against Bugg were not compulsory counterclaims in the magistrate court. But this court has held that the doctrine of res judicata “bars a party who forgoes an opportunity to file a permissive cross-claim from bringing the claim in a subsequent action.” (Citations and punctuation omitted.) Majestic Homes v. Sierra Dev. Corp., 211 Ga. App. 223, 225 (3) (438 SE2d 686) (1993).

Stringer correctly points out she could not have asserted these claims originally in the magistrate court because at the time an answer was due, these causes of action, which arise from Sugg’s subsequent actions, had not accrued. Moreover, her claim for wrongful eviction did not mature until even later. The eviction was carried out under a writ of possession issued by the magistrate court, and until that writ was vacated, it was lawful and the eviction was not wrongful. See Smith v. Republic Realty Svc., 216 Ga. App. 736, 737 (456 SE2d 55) (1995). Stringer argues that she was not required to assert these claims later in magistrate court because her recovery in that court would have been restricted due to the jurisdictional limit. But nothing would have prevented her from raising these claims in magistrate court and then moving the court to transfer the action to state court. See OCGA § 15-10-45 (d).

We find merit, however, in Stringer’s contention that res judi-cata did not bar her claims because the cause of action in the dispos-sessory in magistrate court was based upon her failure to pay rent, while the cause of action in this suit was based upon the fraud committed by Bugg and the injuries caused by the forcible eviction.

OCGA § 9-12-40 provides: “A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” OCGA § 9-12-42 provides: “For a former judgment to be a bar to subsequent action, the merits of the case must have been adjudicated.”

These code sections together set out the basic principles of res judicata in Georgia. For res judicata to act as a bar of a subsequent action, the original and subsequent action must bear certain identical characteristics. The two actions must be between identical parties or their privies, and the cause of action in each suit must be identical.

(Punctuation omitted.) Macko v. City of Lawrenceville, 231 Ga. App. 671, 672 (1) (499 SE2d 707) (1998). Here, the dispossessory action in magistrate court and the superior court action clearly had identical parties. We conclude, however, that the causes of action were not identical.

“Separate actions involve the ‘same cause’ where the relief requested relates to substantially the same set of facts.” (Citation and punctuation omitted.) Liner v. North, 184 Ga. App. 74, 75 (360 SE2d 637) (1987). But this court has found no identity of causes of action when a prior suit was based upon an account and the action in issue was brought on a written guaranty, even though both arose from the same debt. Ellis v. Curtis-Toledo, Inc., 204 Ga. App. 704, 705 (1) (420 SE2d 756) (1992). We found no identity of causes of action between a prior suit for damages brought by a husband for personal injury to a child, and a later wrongful death suit brought by the wife based upon the same wrongful act. Winding River Village Condo. Assn. v. Barnett, 218 Ga. App. 35, 36-37 (1) (459 SE2d 569) (1995).

Here, some of the same facts that form the basis of Stringer’s action against Bugg are also the basis of the original dispossessory action. But Sugg’s conduct after swearing out the dispossessory warrant was not relevant to the original action in magistrate court, and indeed had not yet taken place. Bugg^s entry into an agreement with Stringer not to evict her, his obtaining a writ of possession without informing the magistrate court of the agreement, placing Stringer’s personal property on the street, and other conduct not at issue in the original action form the subject matter of Stringer’s suit against Bugg. Because the relief requested in Stringer’s action depends upon a completely different set of facts, no identity of cause of action exists. The trial court erred in granting summary judgment to Bugg on the ground that res judicata barred Stringer’s action.

Decided March 12, 2002

Reconsideration denied April 8, 2002

Strickland, Chesnutt & Lindsay, James M. Green, for appellant.

Victor Y. Johnson, for appellee.

3. Stringer contends the trial court erred in denying her motion for summary judgment because the facts determined by the magistrate court support such an award, and the doctrine of collateral estoppel precludes Bugg from contesting those facts. Bugg argues that the magistrate court had no authority to enter these findings on April 10, 1998, 36 days after the writ had been set aside and the dis-possessory action dismissed with prejudice. We need not consider this issue because even if the findings are considered, they do not establish all the elements of each of the claims raised by Stringer. The transcript of the hearing in magistrate court shows that questions of fact remain regarding several issues: whether consideration existed for the agreement, whether a trespass was committed by Bugg when he took possession of the premises at a time when he had been issued a writ of possession, whether Bugg exercised authority over certain other personalty belonging to Stringer and refused to allow her to remove these possessions from the premises, and whether all the elements existed for a claim of fraud. Stringer’s claims were not adjudicated in the magistrate court, even assuming that some or all of them were raised. The trial court therefore did not err in denying Stringer’s motion for summary judgment on her claims.

Judgment affirmed in part and reversed in part.

Barnes and Phipps, JJ., concur.


text:
    A01A2261.
    NEWBERN v. THE STATE.
    (563 SE2d 872)
   Smith, Presiding Judge.

Raymond W. Newbem was found guilty by a jury of two counts of vehicular homicide, two counts of DUI, and failure to drive on the right side of the road. For sentencing, the trial court merged with the first count of vehicular homicide all the remaining counts except driving on the wrong side of the road. Newbern’s amended motion for new trial was denied, and he appeals. He raises claims of ineffective assistance of counsel and failure of the State to prove his identity as the driver of the car beyond a reasonable doubt and to a moral certainty. We conclude that the trial court correctly found that New-bern’s counsel was effective, albeit not for the reason stated by the court, and that the jury was authorized to find that the State proved Newbern’s identity as the driver beyond a reasonable doubt. We therefore find no reversible error and affirm.

Construed to support the verdict, the evidence presented at trial showed that Newbem called his friend Steve Rice three or four times, requesting that Rice pick him up at the home of Newbern’s mother-in-law. Eventually, Rice picked up Newbern about 5:00 p.m., and they returned to Rice’s home. They left briefly in Rice’s 1977 black Oldsmobile Cutlass to purchase car parts in Athens. Rice did not lend out his car, but he let Newbern drive his car when he was present, and on the way home, Newbern was allowed to drive. They stopped at a supermarket for some beer. After returning to Rice’s trailer, they parked the car and went to a neighbor’s home to watch NASCAR racing. Because the neighbor did not permit smoking in his home, New-bern stepped outside several times, smoking and talking on a wireless phone. At some point, Newbern left. When Rice and the neighbor heard sirens and observed emergency vehicles passing by, they turned on the neighbor’s scanner and learned a wreck had occurred nearby on Highway 29. At that point, Rice noticed that his car was gone.

Law enforcement officials testified that a two-vehicle accident occurred at 9:00 p.m. Rice’s 1977 Cutlass, traveling north on Highway 29, crossed the centerline and struck the car driven by the victim, causing the victim’s death. Newbern was thrown from the car and into the roadway at the end of a residential driveway. One of the residents of the house was a nurse, and she attempted to assist at the scene. She asked Newbem several questions, trying to determine whether he was oriented, so she could assess whether he had a serious head injury. She testified that Newbern appeared to her to be completely oriented and not confused. She asked Newbern whether he had been alone in the car, and he replied that he had been.

A Madison County sheriff’s deputy was one of the first officers on the scene, and he spoke with Newbern, who was conscious. Newbem also told this deputy that he had been driving and that he was the sole occupant of the car. An emergency medical technician who responded to the crash scene testified that Newbern was conscious and responsive to questions. The EMT testified that Newbem told him he was the car’s driver and that he had been alone. Newbern was removed by ambulance to Athens Regional Medical Center, where a nursing assistant drew blood from him at the direction of a state trooper. Although the nursing assistant did not recognize him, New-bem was alert enough to recognize the assistant as someone he had worked with years before at a newspaper. A state trooper who spoke with Newbern at the hospital testified that Newbern appeared to understand their conversation and that his responses made sense. The trooper testified that he was able to carry on a conversation “just like me and you are talking now. I mean, he was — he was laying down. He had some obvious injuries, but he was speaking clearly, coherently. I could understand him. He could understand me.” After reading Newbern his Miranda warnings, the trooper asked him if he had been driving the car, and Newbern first responded that he

had been at a friend’s house, drinking. And that he had left to go to the beer store, and when he left he was driving. And I said did you have any passengers. And he said, no. I said, so you were alone in the vehicle. He said, yes. I asked him how much he had to drink, and he told me he had two beers and one shot of liquor. And I asked him again, so you were driving the vehicle when it crashed. And he paused and he hesitated. And then he finally answered by saying, no, my friend, was driving. And I asked who was the friend, and he would not give me any kind of name. I asked him repeatedly, if you weren’t driving, who was driving. He wouldn’t tell me anything other than just a buddy of his.

After investigation, Newbern was found to be intoxicated.

1. Newbern contends the trial court erred in finding that trial counsel was effective. Newbern’s medical records were never introduced into evidence. He argues that his counsel was ineffective in failing to subpoena hospital personnel who could authenticate these records, which would have showed that he was “confused” following the accident. He maintains that the trial court erred in ruling that defense counsel had a strategic or tactical reason for failing to do so.

In several places, Newbern’s hospital records lend credence to the idea that he was, in fact, confused after the wreck. The “trauma flow sheet,” a record made while Newbern was at the hospital, shows that the person monitoring Newbern’s condition indicated he was “confused,” and even shortly before discharge he was “still unable to state correct month of the year.” In the discharge summary, a doctor noted that Newbern was “unclear about his consciousness at the scene.” The emergency department record indicated Newbern was conscious upon arrival at the hospital, but “somewhat confused and disoriented.”

Newbern argues that showing his confusion was crucial to his defense, showing that he was mistaken when he told several questioners that he was driving the car when the crash occurred, perhaps thinking about the time earlier that day when Rice had allowed him to drive his car. He also argues that his conflicting statements to the trooper at the hospital about who was driving left the impression that he was lying and showing that he was confused would have mitigated this effect by attributing the conflicting statements to his confusion.

Trial counsel testified at the hearing on the motion for new trial. It is clear from his testimony that he considered the records favorable to the defense and that he wanted the jury to have the information they contained. In fact, he emphasized these records in his opening statement. Yet he did not subpoena any witnesses to authenticate the records, nor did he determine not to use the records based upon any kind of cost/benefit analysis. When asked directly by the trial judge why he had not subpoenaed “somebody from the hospital,” trial counsel testified that he had not done so because both he and the prosecutor had the records and knew what they said. He planned to present the information from the records to the jury in his opening statement, and then if the prosecutor objected, it would appear to the jury that the prosecutor was trying to hide something. But when the records were tendered, the prosecutor objected at a bench conference, outside the presence of the jury.

A trial court’s finding that trial counsel was not ineffective must be affirmed unless it is clearly erroneous. Humphrey v. State, 249 Ga. App. 805, 809 (4) (549 SE2d 144) (2001). Therefore, if any evidence exists to support the trial court’s finding, it controls. State v. Burnett, 220 Ga. App. 133 (469 SE2d 324) (1996). Although we must agree with Newbern that trial counsel’s testimony regarding his reasons for not subpoenaing hospital personnel to authenticate the medical records is not impressive, it is nevertheless some evidence to support the trial court’s finding that trial counsel was effective. This finding was not clearly erroneous.

Moreover, to prevail, Newbern is required to show not only that his counsel’s performance was deficient, but also that but for his counsel’s errors, a reasonable probability exists that the jury would have reached a different verdict. Lewis v. State, 247 Ga. App. 440, 441 (543 SE2d 810) (2000). It is apparent that most, if not all, the' information in the records was elicited from the State’s witnesses during cross-examination. The jury was aware of the possibility that Newbern was confused. Because the jury was aware of this information, admission of the records would not have changed the outcome of the trial. Newbern therefore has not satisfied the second prong of the test set forth in Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).

2. Both Newbern and the State acknowledged that the identity of the driver of Rice’s car was a crucial issue at trial. Newbern contends the State did not prove his identity as the driver beyond a reasonable doubt. He argues that the evidence of identity was circumstantial and that the State never excluded the hypothesis that Rice was driving his own car. No evidence showed that anyone saw Newbern driving, he was not identified as being behind the wheel, and he was never asked for, and never gave, a statement about how the accident occurred. He was found over 100 feet away from the point of impact. Two witnesses on Newbern’s behalf testified they saw two people in Rice’s car just moments before the accident. And after the crash, Rice was on the scene, talked to the sheriff, and tried to remove a package of beer from the car. Although Newbern told at least four people he had been driving the car, he argues that his admission is consistent with his having driven the car earlier in the day. Because the evidence regarding the identity of the driver was circumstantial, New-bern claims that “a serious risk of mistaken identity” exists here.

Citing other cases in which circumstantial evidence of the identity of the driver of a vehicle was sufficient, he distinguishes those cases as providing more “specific” facts. In Krull v. State, 211 Ga. App. 37, 39 (438 SE2d 152) (1993), we reviewed a number of other cases “in which DUI convictions have been upheld on circumstantial evidence, against the defendant’s assertion that the evidence failed to prove that he was the driver of the car.” We concluded that the circumstantial evidence was insufficient to show that Krull was the driver. We did so, however, because the “sum total of the evidence identifying” the defendant as the driver was the officer’s observation of him “in the driver’s portion of the vehicle” or “behind the wheel,” and the officer’s testimony that the defendant told him he wanted to move the vehicle.

Here, Newbern is correct that some of the evidence presented at trial was circumstantial. Because there was a possibility that another injured person might be present, law enforcement personnel searched the area and found no one other than Newbern and the two persons in the other car, and they saw no blood trails. Although Rice turned up at the scene of the crash later, he appeared uninjured despite the severity of the crash.

But the evidence was not entirely circumstantial. The testimony at trial showed not only that Newbern told at least four people that he had been driving the car, but also that he specifically stated that he was alone in the car. He was asked these questions while lying bleeding on the roadside after the crash, and it is inherently unreasonable that his answers referred to a time earlier in the day when he and Rice were together in the car and Rice allowed him to drive. This was direct evidence, distinguishing this case from Krull and the cases discussed in that opinion. Although this evidence was in conflict with Newbern’s later response that Rice was driving, it was for the jury to determine the credibility of the evidence. Walsh v. State, 220 Ga. App. 514, 516 (469 SE2d 526) (1996). The evidence presented was sufficient to authorize the jury to conclude that Newbern was driving the car at the time of the crash.

Decided March 18, 2002

Reconsideration denied April 8, 2002

Wiggins & Norris, Morton M. Wiggins III, Blaine A. Norris, for appellant.

Robert W. Lavender, District Attorney, for appellee.

Judgment affirmed.

Barnes and Phipps, JJ, concur.


text:
    A01A2355.
    WOODS v. THE STATE.
    (563 SE2d 876)
   Smith, Presiding Judge.

William Leonard Woods, Jr. appeals from the trial court’s denial of his motion to set aside his plea of guilty to one count of child molestation. He contends that his guilty plea resulted from ineffective assistance of Mr. Sexton, the lawyer representing him at the time of the guilty plea. Woods asserts that Sexton gave him incorrect information regarding the parole consequences of his plea and that this affirmative misrepresentation justifies setting aside his guilty plea under Crabbe v. State, 248 Ga. App. 314 (546 SE2d 65) (2001).

The State asserts that Woods did not assert his ineffective assistance claim “at the earliest practicable opportunity,” Herndon v. State, 232 Ga. App. 129, 133 (3) (499 SE2d 918) (1998). While the motion to set aside Woods’s guilty plea asserted that Sexton incorrectly advised Woods regarding the parole consequences of his sentence, it did not explicitly assert a claim of ineffective assistance. At the hearing on the motion to set aside, the hearing proceeded on the grounds of the voluntariness of Woods’s plea. Counsel, however, argued that the plea was not voluntary due to ineffective assistance of counsel. But we need not reach the issue of whether Woods adequately preserved his underlying claim of ineffective assistance because his claim is without merit in any event.

To prevail on a claim of ineffective assistance of counsel, it must be shown both that counsel’s performance was deficient and that but for this deficiency, the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). Failure to satisfy either prong of the Strickland standard is fatal to an ineffective assistance claim. Brewer v. State, 224 Ga. App. 656, 657-658 (2) (481 SE2d 608) (1997). “The trial court’s determination with respect to effective assistance of counsel will be affirmed unless the trial court’s findings are clearly erroneous. [Cit.]” Chapman v. State, 273 Ga. 348, 350 (2) (541 SE2d 634) (2001).

Woods’s original motion asserted that his plea counsel erred in misinforming him that his sentence would be calculated by the State Board of Pardons & Paroles on a one-third basis, while in fact his offense was calculated on a 90 percent basis, requiring that he serve 90 percent of his sentence rather than one-third. At the hearing, Woods’s counsel and the State attempted to stipulate to certain facts to avoid the necessity of testimony and to decide the motion on the basis of the law. The trial court noted Woods’s original claim in his motion and inquired further, whereupon Woods’s motion counsel stated that he was not asserting that Woods’s trial counsel made the representation, only that Woods misunderstood:

The Court: Now, you’re not telling this Court that Mr. Sexton informed him that under the plea of the child molestation that he would only have to do one-third of whatever was sentenced?
Mr. Stewart: Right.
The Court: But that is what this person, Mr. Woods, believed to be.
Mr. Stewart: Yes, sir.
The Court: Not that — I know Mr. Sexton knows that’s not the law. I mean, I just don’t believe —.
Mr. Stewart: Yes, sir.

Moreover, the State introduced a document identified by Woods as a letter he wrote to his son, in which he acknowledges the district attorney informed him that he would have to serve “mandatory 90% per cent [sic] of your time.” But in contradiction of his counsel’s statement and his letter, Woods himself took the stand and asserted that Sexton indeed had made a direct representation to him that he would serve only one-third of his sentence. Sexton was not called as a witness and did not testify.

Here, Woods’s motion counsel denied the very assertion that Woods later attempted to make in his testimony, and the trial court expressed its disbelief that trial counsel would have made such a representation. Woods failed to call his trial counsel to elicit his testimony on this point. “Generally if the claim of ineffectiveness relates to matters outside of the record, then trial counsel’s testimony will usually be needed. . . . [I]f the claim involves matters during the course of the trial as shown by the transcript, then trial counsel’s testimony may not be required.” Dawson v. State, 258 Ga. 380, 381 (3) (369 SE2d 897) (1988). And resolution of disputed issues of fact is for the- trial court. Randolph v. State, 225 Ga. App. 324 (484 SE2d 1) (1997). “The trial court’s denial of a motion to withdraw a guilty plea is a matter within the court’s sound discretion and will not be disturbed on appeal unless manifestly abused. [Cits.]” Swan v. State, 251 Ga. App. 80, 81 (2) (553 SE2d 383) (2001).

Decided March 18, 2002

Reconsideration denied April 8, 2002

Marcus C. Chamblee, for appellant.

Tommy K. Floyd, District Attorney, Blair D. Mahaffey, Assistant District Attorney, for appellee.

[W]here, even though the evidence is conflicting, there is evidence from which it appears that the defendant was not misled or induced to plead guilty, the refusal of the court to allow the plea to be withdrawn after sentence is not an abuse of discretion. When a judge, in the exercise of his discretion, refuses to allow a defendant to withdraw a plea of guilty the judge thus settles all conflicts in the evidence and is the exclusive arbiter of the facts. Such exercise of a sound legal discretion presupposes an application of settled rules of law to the facts found by the judge.

(Citations omitted.) Fortson v. State, 96 Ga. App. 350, 358 (100 SE2d 129) (1957). The trial court’s decision to deny Woods’s motion to set aside his plea was not clearly erroneous or an abuse of discretion.

Judgment affirmed.

Barnes and Phipps, JJ, concur.

       Woods contended that he understood the 90 percent requirement applied only to the original charge of aggravated child molestation.


text:
    A01A2372, A01A2373.
    OVREVIK v. OVREVIK et al. (two cases).
    (564 SE2d 8)
   Smith, Presiding Judge.

This complex and often acrimonious litigation, involving a revocable inter vivos trust hand-drafted by one of the settlors, appears before us for the third time. Ovrevik v. Ovrevik, 242 Ga. App. 95 (527 SE2d 586) (2000) (“Ovrevik I"), the first appeal, gives a full account of the underlying facts. In that case, we reviewed the trial court’s grant of partial summary judgment with respect to distribution of certain trust property to the settlors’ children. We affirmed most of the trial court’s decisions regarding the intent expressed in the trust documents but remanded two specific issues for further consideration, finding that the trust language was ambiguous and parol evidence was required to explain the ambiguities and determine the intent of the settlors in those two instances only. Id. at 99-100 (4), (5). After an evidentiary hearing, the trial court entered a judgment resolving the issues as directed by this court. The trial court’s resolution of those issues returns to us for review on separate appeals by two of the children, Alice M. Ovrevik and Glenn S. Ovrevik. Finding no error in the trial court’s determinations, we affirm in both appeals.

The trial court first considered the settlors’ intended distribution of a parcel of land in Douglas County. As noted in Ovrevik I, supra, the trust agreement directed that the Douglas County property be distributed to Russell Ovrevik subject to a lien in favor of Alice Ovrevik. It provided that if the property was not sold within four years of the death of the last surviving settlor, the lien was to be paid off and that “fw]hen the lien is paid off[,] the remaining value of the property shall be divided either physically or if sold in dollar values among Russell’s three children and Russell as determined by Russell.” (Emphasis omitted.) Id. at 99 (4). We found this language ambiguous

with regard to the intended distribution to Russell and/or his children after the lien is paid off. On the one hand, the phrase “as determined by Russell” may give him the discretion to decide whether some or all of his children receive a share of the property. On the other hand, it may give Russell the discretion to decide whether the property is divided physically or sold. Or, it may give him the discretion to decide both the beneficiaries and the form of distribution. Since we cannot determine the Settlors’ intent on this matter, we cannot determine whether the trial court’s order conformed to that intent. Therefore, we vacate that portion of the trial court’s order directing distribution of the Douglas County property to Russell Ovrevik and his three children. The case is remanded for the trial court to hear parol evidence to explain the ambiguity and determine the Settlors’ intended distribution, after the lien is paid off, to Russell Ovrevik and/or his children. OCGA § 53-12-27.

Id. at 99-100. The trial court explicitly considered the alternatives stated by this court pursuant to OCGA § 9-11-60 (h), and it concluded that the settlors intended the phrase at issue to mean “that Russell Ovrevik had the discretion to decide both the beneficiaries and the form of the distribution of the Douglas County property.”

The trial court next considered the settlors’ intention regarding the payment of any debts incurred by the trust, as expressed in a provision that Glenn Ovrevik should have “joint responsibility with his sister Alice Ovrevik for the equal adjustment of one half each of any surplus or shortage of funds in the final closing of the trust.” (Punctuation omitted.) Ovrevik I, supra at 100 (5). An otherwise identical provision placed joint responsibility upon Alice Ovrevik. In Ovrevik I, we noted that the trial court’s original interpretation, while possible, had the im- permissible effect of distributing the trust’s' debt to beneficiaries of the trust. Id. at 100 (5). We noted an alternative interpretation that “in light of the Settlors’ great effort to address distribution of the Trust property in the event of a shortage of Trust funds, the provisions could also be read to mean that Glenn’s and Alice’s shares of Trust property should be abated in the payment of debt in the unlikely event of a debt,” id., and remanded for the trial court to resolve the ambiguity. The trial court found the evidence on this issue “scant,” but concluded on the basis of the testimony of the parties that the settlors indeed had intended the interpretation proposed in Ovrevik I, that “Glenn’s and Alice’s shares of Trust property should be abated in the payment of debt.”

1. We must first address the standard of review appropriate to this appeal, as appellants contend that the standard for review of a summary judgment should be applied. We disagree. As we noted in Ovrevik I, OCGA § 53-12-27 provides that the trial court may hear parol evidence to explain any ambiguities in the language of an express trust. Ovrevik I, supra at 100 (4). The use of parol evidence to explain an ambiguity presents a question for the trier of fact. Sharple v. AirTouch Cellular, 250 Ga. App. 216, 218 (551 SE2d 87) (2001). Summary judgment therefore became inappropriate once this court found ambiguities that could be resolved only by parol evidence and the intervention of a finder of fact.

Moreover, at the beginning of the evidentiary hearing convened to resolve the two issues remanded by this court, the trial court made plain to all the parties that it was not treating the hearing as one concerning summary judgment. The court declined to consider a late-filed summary judgment motion by appellant Glenn Ovrevik, noting that “a motion for summary judgement [sic] is not the kind of motion that will delay a trial, which is what this is, on the very same issues.” The court also told the litigants, “[T]his is our trial on these issues, and that’s exactly what I noticed ... in the order that I entered.” In addition, the trial court specified in its “Final Order” the intention “that the foregoing pronouncements, findings of fact and conclusions of law constitute the FINAL ORDER OF JUDGMENT in this civil action, and should be construed as such by the Court of Appeals if an appeal is taken from this order.” Finally, before testimony began, Alice Ovrevik’s counsel explicitly waived her “demand for a jury trial as to contested issues of fact.” We therefore apply the standard of review applicable to a bench trial:

[T]he appellate standard of review for nonjury trials of disputed material facts is the clearly erroneous test, also known as the “any evidence” rule. As such, the sole question for determination on appeal is whether there is any evidence to authorize the trial court’s judgment. It is our duty to construe the evidence to uphold the judgment rather than upsetting it. This is true regardless of whether evidence also existed that may have supported [appellants’] position. In the absence of legal error, an appellate court is without jurisdiction to interfere with a judgment supported by some evidence.

(Citations, punctuation and emphasis omitted.) Progressive Preferred Ins. Co. v. Aguilera, 243 Ga. App. 442, 445-446 (2) (533 SE2d 448) (2000). Applying this standard to the trial court’s judgment, we consider appellants’ contentions.

Case No. A01A2372

2. In three enumerations of error, Alice Ovrevik asserts that the trial court erred in interpreting the trust agreement to provide that the shares of trust property allocated to her and to Glenn Ovrevik should be abated in the payment of any trust debt. She contends that she renounced this provision of the trust documents, that the trial court erred in finding that Russell Ovrevik’s share of the trust property should not be abated by any debt of the trust, and that the trial court erred in failing to reinterpret the intention of the settlors in light of the debts that have been incurred by the trust.

(a) We do not reach Alice Ovrevik’s claim of renunciation. We remanded this case for the sole and limited purpose of interpreting two specified provisions of the trust agreement to resolve ambiguities of language concerning the settlors’ intent. Our earlier decision constitutes the “law of the case” with respect to this litigation. OCGA § 9-11-60 (h).

The “law of the case” rule, though formally abolished, still applies to rulings by one of our appellate courts in a particular case; such rulings are binding in all subsequent proceedings in the same matter, including a second trial. An exception to this rule exists where the evidentiary posture of the case changes after remand by the appellate court. The evi-dentiary posture may change when a new issue not previously addressed by an appellate court is properly raised, or when the original evidence is insufficient but is later supplemented.

(Citations omitted.) Lowman v. Advanced Drainage Systems, 228 Ga. App. 182, 183-184 (491 SE2d 427) (1997). Here, no new evidence of renunciation was presented at the evidentiary hearing on remand.

(b) Alice Ovrevik also contends the trial court erred in failing to consider the effect of an accounting for the trust that was filed after the hearing and entry of the trial court’s order appealed here. But the law of the case rule applies, and the accounting does not change the evidentiary posture of this appeal. At the time of the hearing, testimony was presented to the trial court that expenses chargeable to the trust had already exceeded the cash on hand. As we noted in Ovrevik I, the trust documents anticipated the possibility of a shortage in trust funds and provided for adjustments accordingly. Id. at 100 (5). The later filing of an official accounting does not change the evidentiary posture with respect to the interpretation of the language in this trust provision.

(c) Finally, Alice Ovrevik contends the trial court erred in its interpretation of this trust provision to make her shares of trust property and those of Glenn Ovrevik abatable in the payment of outstanding debt. She contends that the entire record demonstrates that the settlors did not intend to favor Russell Ovrevik over her and Glenn Ovrevik. But we do not reweigh the evidence or judge the credibility of witnesses; we simply consider whether any evidence authorizes the trial court’s judgment.

Here, some evidence was presented supporting the trial court’s decision. The language of the trust agreement itself establishes that the settlors intended to give a substantially smaller “inheritance distribution percentage” to Russell Ovrevik. Russell Ovrevik also testified that he received a smaller share of the trust property. And Glenn Ovrevik testified that his parents “wanted to keep Russell out of the administration of the trust. So they allotted administrative duties that would result in this closeout to just two people, not to Russell.” While Glenn Ovrevik’s responses to further questioning by the trial court regarding the meaning of this portion of the trust agreement were ambiguous and somewhat evasive, the trial court was authorized to conclude that the settlors’ intention was to limit the abatement of any shortage of trust funds (or the distribution of any surplus) to the shares of the two siblings who received the bulk of the estate and were responsible for administrative duties.

3. In her remaining enumeration of error, Alice Ovrevik complains that the trial court erred in interpreting the provision of the trust concerning the Douglas County property, contending that the settlors did not intend for Russell Ovrevik to receive a fee simple title to the Douglas County property. Instead, she proposes that she, Glenn Ovrevik, and Russell Ovrevik were each entitled to a per stir-pes share of the Douglas County property. But these arguments have no bearing on the issue that we remanded to the trial court for consideration: to resolve the ambiguity in the trust language providing for the distribution of the Douglas County property as between Russell Ovrevik and his three children. Ovrevik I, supra at 100 (5). Moreover, Alice Ovrevik did not raise this issue on the first appeal of this case.

Some evidence was introduced to support the judgment. The trial court explicitly stated that it found the testimony of Russell Ovrevik regarding the settlors’ intent to be “the most credible, most logical, and most reasonable evidence presented on the issue of the distribution of the Douglas County property.” The property was described in the trust documents as “old farm land.” Russell Ovrevik testified that the land could be used as a farm and that he and his father had discussed improvements for farming purposes. He also testified that his father had engaged in farming, that he and his wife had “always” been involved in farming and were farming when his father was alive, and that his own children were not interested in farming. When his father was alive, Russell Ovrevik had expressed to him an interest in buying the Douglas County property, and his father stated “that he would think about us later on that.” Russell Ovrevik testified that his relationship with his children was “excellent,” arguing that this justified his parents in reposing trust in him to divide the property fairly with his children. He also testified that his father understood the rigors of farming.

Based upon these facts, Russell Ovrevik concluded that his father intended to give him the flexibility to decide whether he would sell the property or farm it, if he was still able to do so after his retirement, and also to decide whether his children would receive a share of the property or the proceeds of its sale. While Glenn Ovrevik presented countervailing evidence that his parents had been estranged from Russell Ovrevik and testified to his personal belief that his parents intended for Russell Ovrevik to take nothing whatever under the trust unless he reconciled with them, the trial court weighed the evidence and found Russell Ovrevik’s testimony more believable. Since some evidence supports the trial court’s conclusion, we will not disturb it.

Case No. A01A2373

Glenn Ovrevik, appearing pro se, also appeals from the trial court’s judgment. His brief is far from a model of clarity and cites very little legal authority for the propositions he sets forth. But to the extent we are able to discern the basis of his assertions of error, we address them as follows.

4. In two enumerations of error, Glenn Ovrevik complains that the trial court improperly conformed its decision to the parameters given in Ovrevik I. It appears that Glenn Ovrevik wishes to reopen the entire trust document to reinterpretation by parol evidence, in order to put forward his contention that the settlors intended to disinherit Russell Ovrevik and have him receive nothing under the trust if he failed to reconcile with them. But this court has already determined the meaning and effect of most of the trust provisions. Ovrevik I remanded only two limited issues for consideration, and the trial court’s analysis was correctly guided by Georgia law and the direction provided by this court.

OCGA § 5-6-10 provides that after remittitur of an appealed case is returned to the trial court, the decision and direction of the appellate court shall be respected and carried into full effect in good faith by the court below. Where a judgment is reversed and the case is remanded to the trial court with direction, it is the duty of the trial court in good faith to carry into full effect the mandate of this court. The rulings of our appellate courts are binding on the trial court in all subsequent proceedings in the case.

(Citations and punctuation omitted.) Gold Kist v. Wilson, 247 Ga. App. 107, 111 (542 SE2d 126) (2000) (case reversed for second time when trial court exceeded its authority on remand and failed to carry out mandate of this court). To the extent Glenn Ovrevik may be arguing in these two enumerations of error that the evidentiary posture of the case changed on remand, that argument is addressed in Division 2, above.

5. Four enumerations of error appear to present variations on Glenn Ovrevik’s contention that the trial court misinterpreted the evidence presented at the hearing with regard to the Douglas County property. Essentially, Glenn Ovrevik argues that the trial court’s interpretation of the trust documents and the evidence presented at the hearing is erroneous and that the trial court did not give proper weight to his contention that the settlors intended to disinherit Russell Ovrevik. But, as noted in Division 1, above, Glenn Ovrevik proposes an incorrect standard of review for this court. We do not weigh the evidence or judge the credibility of witnesses, but examine the record to determine if any evidence supports the trial court’s decision. While Glenn Ovrevik points to evidence in support of his contentions, some evidence supported the trial court’s decision regarding the distribution of the Douglas County property, and we will not disturb it. See Division 3, above.

Decided March 8, 2002

Reconsideration denied April 8, 2002.

Ballard & Ballard, Charles T. Ballard, for appellant (case no. A01A2372).

Glenn S. Ovrevik, pro se (case no. A01A2373). Mark D. Oldenburg, Douglas B. Warner, for appellees.

6. In his remaining argument, contained primarily within two enumerations of error, Glenn Ovrevik complains that the trial court erred in its determination of the allocation of outstanding debts of the trust. This contention is without merit, for the reasons stated in Division 2, above.

In the context of the limited remand of this matter for construction of two provisions of the trust, and applying the “any evidence” rule on review, we find no error in the trial court’s decision. This case has generated extreme animosity among the family members involved, as well as some $50,000 in fees charged to the trust at the time of the hearing almost a year ago. A comment made over a century ago by Chief Justice Bleckley concerning another protracted and bitter lawsuit seems appropriate: “Thrice this unquiet case has materialized at the sittings of this tribunal. We hope its perturbed spirit will now enter into unbroken rest.” Phillips v. City of Atlanta, 87 Ga. 62, 63 (13 SE 201) (1891).

Judgments affirmed.

Barnes and Phipps, JJ, concur.

       Premature appeals by the same parties previously were dismissed.


author: SMITH, Presiding Judge.

text:
    A01A2544.
    GAMLINS, SOLICITORS & NOTARIES v. A. E. ROBERTS & ASSOCIATES, INC.
    (564 SE2d 29)
   SMITH, Presiding Judge.

In this action brought to recover legal fees, Gamlins, Solicitors & Notaries, a business providing legal services in the United Kingdom, brought suit against A. E. Roberts & Associates, Inc., a Georgia corporation, alleging that Roberts failed to pay Gamlins for legal services performed in the United Kingdom. Gamlins appeals from the trial court’s grant of Roberts’s motion to dismiss, brought on the grounds of insufficient service of process and the statute of limitation. Gamlins contends the trial court erred when it dismissed the action because Roberts made a general appearance and waived any defense of lack of personal jurisdiction. We conclude that any argument regarding the inadequacy of the original attempt at service has been waived by Gamlins and that its attempt at later service was ineffective. Because the statute of limitation for a suit on account had expired without proper service on Roberts, the trial court did not err in dismissing Gamlins’s complaint.

The record shows that acting without an attorney, Mr. A. E. Roberts filed what appears to be correspondence between him and Gam-lins, which he now characterizes as an “answer.” Gamlins filed a motion for default judgment or, in the alternative, for judgment on the pleadings. Roberts then retained an attorney, who filed a notice of appearance, a response to Gamlins’s motion, and an amended answer. The trial court denied Gamlins’s motion, finding that although Roberts had not filed a proper answer, the summons was defective and therefore service upon the corporation was insufficient. Gamlins then attempted service upon the Secretary of State under OCGA § 9-11-4 (e) (1), and Roberts then filed a motion to dismiss on the grounds of insufficient service of process and the statute of limitation. The trial court granted Roberts’s motion, and Gamlins filed this appeal.

1. Gamlins argues that the trial court should have granted its motion to enter a default judgment or for judgment on the pleadings. But Gamlins has not designated this order in the notice of appeal. The notice of appeal specifically recites that the order appealed from is the order granting Roberts’s motion to dismiss. Therefore, even though Gamlins argues in its brief the propriety of the trial court’s denial of its motion for a default judgment or judgment on the pleadings, it has waived consideration of this issue on appeal. “Matters not enumerated as error will not be considered on appeal. An enumeration of error cannot be enlarged at the appellate level by statements in the briefs of counsel to include issues not made in the enumeration.” (Citations and punctuation omitted.) Wilson v. City of Atlanta, 223 Ga. App. 144, 145, n. 1 (476 SE2d 892) (1996). See also Alternative Health Care Systems v. McCown, 237 Ga. App. 355, 357-358 (2) (d) (514 SE2d 691) (1999).

2. Gamlins contends the trial court erred in granting Roberts’s motion to dismiss the action. Gamlins argues that the trial court erroneously found that Roberts was improperly served because Roberts made a general appearance, waiving any defense of lack of personal jurisdiction. The order dismissing Gamlins’s complaint did not recite the trial court’s reasoning or the grounds for dismissal. But the motion was made on the ground that the complaint had never been served and was barred by the applicable statute of limitation.

(a) The trial court had previously held that service was defective. This ruling is the law of the case. And Gamlins’s later attempt at service was never properly effected. Gamlins’s attempt to serve Roberts under OCGA § 9-11-4 (e) (1) by serving the Secretary of State did not comply with the requirements of the statute. The statute requires that “a copy of such process, notice, or demand, along with a copy of the affidavit to be submitted to the court pursuant to this Code section,” be left with the Secretary of State and that the plaintiff or his or her attorney

shall certify in writing to the Secretary of State that he or she has forwarded by registered mail or statutory overnight delivery such process, service, or demand to the last registered office or agent listed on the records of the Secretary of State, that service cannot be effected at such office, and that it therefore appears that the corporation has failed either to maintain a registered office or to appoint a registered agent in this state.

OCGA § 9-11-4 (e) (1).

The Secretary of State’s certificate of filing recites that the “attached documents regarding service of process have been filed.” The attached documents do not include either the required certification or the required affidavit. The affidavit of Gamlins’s attorney, pointed to by Gamlins, is dated November 22, 2000, while Gamlins claims to have served the Secretary of State on November 13, 2000. That affidavit therefore did not exist at the time of service upon the Secretary of State and could not have been filed at that time. And the affidavit of the private process server is inadequate under the statute. The record does not show that this process server was either a sheriff or marshal, or that he was appointed by the court, as required by OCGA § 9-11-4 (c). “In the absence of service in conformity with OCGA § 9-11-4, the court does not obtain jurisdiction over the defendant.” (Citation and punctuation omitted.) Merck v. St. Joseph’s Hosp., 251 Ga. App. 631, 632 (555 SE2d 11) (2001). It follows that Roberts was never properly served.

(b) The statute of limitation for a suit on account is four years. OCGA § 9-3-25. Gamlins alleged in its complaint that the services it rendered were performed in 1996 and that it presented the account for payment on February 3, 1997. The statute of limitation began running on that date, the date Gamlins’s right of action accrued. Id. Because Roberts had not been properly served, the statute continued to run even after this action was filed. When the trial court made its ruling, on May 22, 2001, the statute of limitation had expired without Roberts being properly served. The trial court therefore properly dismissed Gamlins’s suit.

Decided March 14, 2002

Reconsideration denied April 8, 2002.

Jeffrey L. Sakas, for appellant.

Siegel & Golder, Mark L. Golder, Lynn L. Carroll, for appellee.

Judgment affirmed.

Barnes and Phipps, JJ, concur.


author: Phipps, Judge.

text:
    A02A0362.
    WOODY v. THE STATE.
    (563 SE2d 903)
   Phipps, Judge.

Jerome Woody was indicted on charges of aggravated sexual battery, aggravated assault, burglary (two counts), criminal attempt to commit aggravated sodomy and giving a false name and date of birth to a law enforcement officer. He entered a negotiated guilty plea to aggravated sexual battery and was sentenced to 20 years, to serve 12 in confinement and the remainder on probation. Woody later filed a motion to withdraw his guilty plea, based on ineffective assistance of counsel. The trial court denied his motion, finding that Woody had failed to show that his counsel was ineffective. We agree and affirm.

Woody claims that his guilty plea resulted from ineffective assistance of counsel, thereby rendering the plea involuntary. He contends that his trial counsel left him with the impression that upon conviction after trial he would be sentenced to the maximum sentence of 90 years and argues that counsel was ineffective for failing to inform him that in her opinion the court would probably sentence him to serve no more than 20 years after conviction.

At the hearing on Woody’s motion to withdraw his guilty plea, his trial counsel testified that she had told Woody that his maximum exposure was a prison sentence of 90 years if he was convicted. She denied ever telling him that he likely would be sentenced to 90 years if he failed to accept the plea. She testified that she did not recall specifically if she had discussed the possibility that Woody might receive a sentence of less than 90 years if he went to trial and that she did not generally tell her clients what sentence they might receive if they go to trial.

The two-part test of Strickland v. Washington applies to challenges to guilty pleas based on ineffective assistance of counsel. To prevail, a defendant must show that his counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability that, in the absence of his attorney’s errors, he would not have pled guilty and would have insisted on going to trial. A court’s finding of effective assistance will be affirmed unless clearly erroneous.

Decided April 8, 2002.

Joseph A. Leaphart IV, for appellant.

Richard R. Read, District Attorney, Dabney Y. Kentner, Assistant District Attorney, for appellee.

Woody asks this court to hold that his trial counsel’s performance fell below an objective standard of reasonableness because she did not tell him what his sentence might have been if he had rejected the plea and gone to trial. In light of the seriousness of the charges against Woody and his prior criminal convictions, the trial court was authorized to find that a prediction of his probable sentence upon conviction after trial would have amounted to nothing more than speculation and guesswork. Thus, the trial court’s finding that trial counsel was not ineffective was not clearly erroneous, and the trial court did not err by denying Woody’s motion to withdraw his guilty plea.

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

       466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).

        Hill v. Lockhart, 474 U. S. 52, 57-59 (106 SC 366, 88 LE2d 203) (1985).

       Id.

        Swantner v. State, 244 Ga. App. 372, 374 (2) (535 SE2d 343) (2000).

       See id.


author: Johnson, Presiding Judge.

text:
    A02A0632.
    POE v. THE STATE.
    (563 SE2d 904)
   Johnson, Presiding Judge.

Carolyn Poe was convicted of obstructing a law enforcement officer. She appeals, challenging the trial court’s refusal to charge the jury on criminal trespass or on the meaning of the obstruction statute’s phrase “lawful discharge of official duties.” The challenges are without merit, and we therefore affirm the conviction.

Poe and her daughter, Saunderdeanor Houghes, live about 100 yards apart on the same property in Augusta. A fire broke out in the subdivision behind their homes. Police investigating the fire executed search warrants at both Poe’s home and her daughter’s mobile home. Poe and Houghes called the police to complain about the searches and to ask that officers come to their homes to speak to them.

Officers went to Houghes’ mobile home. Houghes called Poe, who then came to the mobile home. Poe and her daughter cursed at and argued with the officers, and they pushed one of the officers. The officers tried to arrest Houghes, but she resisted. As the officers attempted to place handcuffs on Houghes, Poe tried to push the officers off of her daughter. Both Poe and Houghes were eventually subdued and arrested.

Poe was charged with simple battery and obstructing a law enforcement officer. She was tried before a jury, which found her guilty of obstruction, but not guilty of battery. She was sentenced to 12 months of probation. She appeals from the conviction.

1. Poe argues that when the officers arrested her, they were not in the lawful discharge of their duties, but were trespassing because Houghes had told them to leave the mobile home. And because this was her sole defense, Poe contends the court erred in refusing to charge the jury on criminal trespass.

Contrary to Poe’s argument, there is no competent evidence that Houghes told the officers to leave the premises. One of the officers testified that Houghes never told them to leave. Houghes did not testify. Only Poe gave self-serving hearsay testimony that at some point she heard Houghes tell the officers to get out of the mobile home. Hearsay has no probative value, even if admitted without objection.

Moreover, even if we were to consider Poe’s hearsay testimony, it provides no evidence that the officers trespassed. The uncontradicted evidence, including Poe’s own testimony, shows that the officers came to the mobile home solely at the request of Houghes, that shortly after they arrived Houghes became abusive toward them, that the officers decided to arrest Houghes, that Houghes called Poe, that Poe came to the scene, that Poe cursed at and pushed the officers, that the officers told the women that they were going to arrest them, and that any indication by Houghes that she wanted the officers to leave came only after the officers had said they were going to arrest the women. At that point, Poe and Houghes could not avoid arrest simply by asking the officers to leave; rather, the officers had no obligation to leave and were authorized to arrest the women for obstruction.

The trial judge must charge the jury on the defendant’s sole defense if there is some evidence to support the charge. Because there is no evidence that the officers criminally trespassed, the trial judge correctly refused to give such a charge.

Decided April 8, 2002.

Elliott B. Watkins, for appellant.

Sheryl B. Jolly, Solicitor-General, Harold V. Jones II, Assistant Solicitor-General, for appellee.

2. Poe contends the court should have defined for the jury the phrase “lawful discharge of official duties” as it is used in the statute defining the offense of obstructing an officer. Although there was a brief discussion about defining the phrase at the charge conference, Poe has not cited a written request for such a charge in the record, and we have not found such a written request after reviewing the entire record. Poe also has not shown any specific definition of the phrase that she wanted the trial court to give to the jury. Absent a specific request, the court’s failure to define terms used in the charge is not a ground for reversal. And the phrase “lawful discharge of official duties” is not so obscure as to require definition absent a specific request.

Moreover, after the judge charged the jury, he asked Poe if she had any objections to the charge. Poe responded that she had no objections other than an objection to the lack of a criminal trespass charge. She did not object to the court’s failure to define “lawful discharge of official duties.” Because the lone objection Poe asserted at trial is not the one she now asserts, this enumeration of error presents nothing for review.

Having reviewed the charge in its entirety, we find that the court fully and accurately charged the jury on the statutory definition of the crime charged and did not err in refusing to attempt to further define the offense beyond the statutory definition.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur.

       See OCGA § 16-7-21 (b) (3) (person commits criminal trespass when he remains on another person’s premises after receiving notice to depart).

       See OCGA § 24-3-1.

        Jones v. State, 271 Ga. 516, 517 (2) (520 SE2d 454) (1999).

       See Hardwick v. State, 210 Ga. App. 468, 469 (1) (436 SE2d 676) (1993).

        Jones, supra.

       OCGA § 16-10-24 (a) provides that “a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.”

        Black v. State, 167 Ga. App. 204, 207 (6) (305 SE2d 837) (1983).

        Clark v. State, 185 Ga. App. 513, 514 (2) (364 SE2d 641) (1988).

        Martin v. State, 190 Ga. App. 486, 488 (3) (379 SE2d 170) (1989).