author: Judge Harold R. Banke.

text:
    A98A0111.
    CAUDILL v. STRICKLAND et al.
    (498 SE2d 81)
   Judge Harold R. Banke.

Claude Caudill instituted an action for personal injuries allegedly sustained in a collision in Georgia involving an interstate motor common carrier. Caudill sued Kenny Strickland, the truck driver, New Hi-Way Express, Inc. (“New Hi-Way”), the motor carrier, and Vanliner Insurance Company (‘Vanliner”), New Hi-Way’s insurer. Enumerating two errors, Caudill challenges the summary judgment awarded to Vanliner.

Vanliner asserted that it could not be joined as a defendant in Caudill’s action against Strickland and its insured, New Hi-Way. At the time of the accident, New Hi-Way was a motor common carrier engaged solely in interstate transportation. The trial court agreed with Vanliner’s position. Held:

1. Caudill contends that the trial court erred in finding that he could not maintain a direct action against Vanliner. We disagree. The joinder of a defendant’s insurer in a tort action has long been disfavored in this state. Arnold v. Walton, 205 Ga. 606, 612-613 (2) (54 SE2d 424) (1949). “ ‘The general rule is that because there is no privity of contract, a party may not bring a direct action against the liability insurer of the party who allegedly caused the damage unless there is an unsatisfied judgment against the insured or it is specifically permitted either by statute or a provision in the policy. (Cit.)’ (Emphasis supplied.) [Cit.]” Bacon v. Liberty Mut. Ins. Co., 198 Ga. App. 436 (401 SE2d 625) (1991). See Smith v. Govt. Employees Ins. Co., 179 Ga. App. 654 (1) (347 SE2d 245) (1986). The rationale for the prohibition of direct actions against insurers is that the injured party is not in privity of contract with the insurer and may not maintain a direct action on the contract for payment of a claim unless a judgment obtained against the insured under the liability policy remains unsatisfied. Jenkins & Miller, Ga. Auto. Ins. Law (1997 ed.), § 6-1.

It is undisputed that Caudill sought to join Vanliner as a defendant not under the terms of New Hi-Way’s insurance contract or having obtained a judgment, but solely under Georgia’s direct action statute, OCGA § 46-7-12 (e). Under this law, an injured plaintiff may join an insurer in an action against a motor carrier “[o]nly when such a bond or policy of indemnity insurance has been given by the motor carrier ... [to the Public Service Commission].” Southern Gen. Ins. Co. v. Waymond, 221 Ga. App. 613, 614 (472 SE2d 325) (1996). See OCGA § 46-7-12 (e); Glenn McClendon Trucking Co. v. Williams, 183 Ga. App. 508, 510 (1) (359 SE2d 351) (1987) (unless the injured party shows by evidence that the direct action statute applies, an insurer may not be joined as a party defendant with its insured).

Here, the uncontroverted evidence showed that since January 1, 1994, New Hi-Way had not obtained a certificate of convenience from the PSC, registered with the PSC, or filed a surety bond or indemnity insurance with the PSC. Therefore, because no insurance policy issued to New Hi-Way was ever filed with or approved by the PSC, Caudill could not invoke the direct action statute to join Vanliner as a defendant. Canal Ins. Co. v. Farmer, 222 Ga. App. 539, 540 (474 SE2d 732) (1996); Waymond, 221 Ga. App. at 616.

Notwithstanding Caudill’s claim to the contrary, the federal Motor Carrier Transportation Act (“Act”) neither requires nor authorizes a different outcome. Under this Act, a motor carrier must register annually with only one state. 49 USC § 14504 (c) (1) (A). It is undisputed that New Hi-Way registered only in Arkansas as an interstate motor common carrier under the federal rules. According to the Act, “such single State registration shall be deemed to satisfy the registration requirements of all other States.” 49 USC § 14504 (c) (1) (C). The Act further provides that “only a State acting in its capacity as registration State under such single State system may require a motor carrier registered by the Secretary under this part ... to file satisfactory proof of required insurance or qualification as a self-insurer.” 49 USC § 14504 (c) (2) (A) (ii). Caudill’s argument that he should be permitted to substitute New Hi-Way’s Arkansas registration for the requisite filings with the Georgia PSC is unpersuasive. The Georgia direct action statute is in derogation of the common law and.its terms require strict compliance. Waymond, 221 Ga. App. at 614; Nat. Indem. Co. v. Tatum, 193 Ga. App. 698, 700 (388 SE2d 896) (1989). To alter the statute’s express requirements would necessitate legislative action. To hold otherwise would mean that all insurers of interstate carriers who registered in other states under federal law could be joined in direct actions in Georgia.

Further, Caudill’s preemption argument is without merit. It is apparent from reading the two statutes that the federal Act governs registration, safety concerns, and insurance requirements; whereas, the state subsection at issue pertains only to joinder. Moreover, assuming for the sake of argument only that the underlying requirements of the Georgia direct action statute have been preempted by the Act’s provisions mandating annual registration with only one state, and apparently precluding states from requiring filings of proof of insurance, then Caudill cannot avail himself of OCGA § 46-7-12 (e)’s exception to the general rule foreclosing direct actions against a tortfeasor’s insurer.

It is apparent that Caudill cannot reach Vanliner at common law and has neither a judgment nor privity of contract with Vanliner. See Bacon, 198 Ga. App. at 436. See Colonial Penn Ins. Co. v. Hart, 162 Ga. App. 333, 338 (6) (291 SE2d 410) (1982). In the absence of any valid legal basis for Caudill’s direct action against Vanliner, summary judgment was not improper. Precise v. City of Rossville, 261 Ga. 210, 211 (3) (403 SE2d 47) (1991) (summary judgment right for any reason will be affirmed).

Decided February 18, 1998.

Gambrell & Stolz, Alvin T. Wong, for appellant.

Dennis, Corry, Porter & Gray, Robert E. Corry, Jr., J. Steven Fisher, for appellees.

2. We reject Caudill’s contention that a material issue of fact precluded summary judgment. He claims that the uncontroverted testimony that New Hi-Way was not registered with or filed proof of insurance with the PSC after January 1, 1994, did not foreclose the possibility that prior to that date, New Hi-Way may have obtained a certificate of convenience or filed proof of a surety bond or indemnity insurance with the PSC. Inasmuch as the alleged accident occurred on November 14, 1994, during the pertinent time testified to, whether New Hi-Way had previously made a filing with the PSC would not be material to a determination that no filing with the PSC was in existence at the time of the accident.

Judgment affirmed.

Birdsong, P. J., and Smith, J., concur.

       Under the single state registration system, “a motor carrier is required to register annually with only one State by providing evidence of its Federal registration under chapter 139.” 49 USC § 14504 (c) (1) (A).


source: Caselaw Access Project

license: Public Domain

text:
    A98A0158.
    TERRY et al. v. COLLINS.
    (497 SE2d 395)
   Judge Harold R. Banke.

Cindy Michelle Terry, individually and as representative of the estate of Maxine Brown, commenced this negligence action against Meriwether Regional Hospital and Memorial Nursing Home, Robert W. Bowen, M.D., and J. E. Collins, M.D. After the trial court summarily granted summary judgment to Collins, Terry brought this appeal challenging that disposition.

This case arose after Maxine Brown sought care from Collins, a general practitioner who treated her off and on for 20 years, for excessive uterine bleeding. She then was seen by Bowen, a gynecologist who shared office space with Collins. Bowen recommended a hysterectomy and scheduled the procedure at Meriwether Regional Hospital. Although Brown survived the surgery, apparently she developed a postoperative pulmonary embolus and died the following day. Held:

Terry contends that questions of material fact regarding the postoperative responsibility Collins bore for Brown preclude summary judgment. We agree.

Summary judgment is appropriate only when the movant establishes that no issues of material fact remain to be tried and the undisputed facts, viewed in the light most favorable to the nonmovant, warrant judgment as a matter of law. Moreland v. Traffic Masters, 225 Ga. App. 244 (483 SE2d 368) (1997). A defendant’s success in this depends on presenting proof that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiff’s case. Id. at 244-245.

Both Collins and Bowen testified that Bowen was solely responsible for Brown’s postoperative care. The record shows that Collins stopped performing surgery years before Brown’s final treatment, after an illness in early 1990 paralyzed his right side. Bowen, Collins’ brother-in-law’s first cousin, offered to help and began using Collins’ office about one half-day each week to provide surgical services for Collins’ patients. Bowen’s primary practice was located in Riverdale.

Notwithstanding the testimony by Collins and Bowen, the hospital admitted in its answer that Brown “was left in the post-operative care of thee [sic] nurses and staff of the Defendant hospital and J. E. Collins, M.D.” The fact that Collins contributed to the postmortem progress notes in Brown’s hospital records, summarizing her stay, raises a question of his participation in the postoperative treatment. In his summary, Collins described Brown as “a patient of mine.” Other hospital records also support the contention that Collins was not uninvolved in Brown’s care. For example, physician’s orders from the day of the surgery state “Start (IV) 15 LR @125 CC hr. p.o. Dr. Collins/Dr. Bowen.”

Further, several nurses from the hospital testified that when Bowen performed surgery on Collins’ patients, Collins usually handled the postoperative treatment. Nurse Lennon stated that after surgery, “Dr. Bowen would come and see the patient the next day and Dr. Collins would take calls [if there was a problem].” She believed this arrangement applied to Brown and would have called Collins had she discovered a problem. Nurse Goodin testified that she understood that Collins “was the round” on Brown, meaning he was to provide postsurgical treatment. In her preoperative visit notes, Nurse Goodin recorded that both Bowen and Collins had apparently talked to Brown about the procedure and the risk involved. Nurse Buffing-ton testified that had she known something was wrong with Brown, she would have called Collins. Nurse Brown testified that she administered Mylanta to Brown after a vomiting episode based upon Collins’ standing order to medicate his patients for nausea. She did not call him or get permission, but recorded her actions in the medical record.

Decided February 18, 1998.

Reynolds & McArthur, W. Carl Reynolds, Bradley J. Survant, for appellants.

Hatcher, Stubbs, Land, Hollis & Rothschild, Robert C. Martin, Jr., Clarence M. Mullin, for appellee.

The record indicates that hospital staff called Collins shortly after discovering Brown’s condition and he arrived at the hospital in time to witness the final efforts at resuscitation. He examined the body shortly thereafter. He talked to the immediate family and recommended an autopsy. This proof constrains us from concluding that Collins succeeded in pointing out by reference to the record that there was no evidence, viewed in the light most favorable to the nonmovant, sufficient to create a genuine jury issue on his participation in Brown’s postoperative treatment. Coffey v. Wal-Mart Stores, 224 Ga. App. 824, 827 (2) (482 SE2d 720) (1997).

Judgment reversed.

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

       No autopsy was performed.


text:
    A98A0165.
    MILLER v. CALHOUN/JOHNSON COMPANY.
    (497 SE2d 397)
   Judge Harold R. Banke.

Calhoun/Johnson Company d/b/a Williams Brothers Lumber Company (‘Williams”) filed an action for money damages against Donald Miller d/b/a Millercraft Construction Company (“Miller-craft”). Asserting five errors, Miller appeals the summary judgment awarded to Williams.

Millercraft purchased building materials and supplies from Williams pursuant to an open account agreement for which Miller had executed a personal guaranty. When Miller wanted lien waivers on four of his construction projects, he contacted Fabian Boudreau, Williams’ credit manager. Boudreau refused to agree because Miller-craft’s account was about $28,000 delinquent. Boudreau and others then negotiated a settlement with Miller, whereby Williams agreed to execute and deliver the desired lien waivers, and, in exchange, Miller agreed to execute a no interest promissory note for $11,000 to settle the unpaid balance. Miller concedes that he executed a promissory note for that amount. Boudreau testified that at no time did Miller state that he was executing the note under protest or as a result of coercion or duress. According to Boudreau, although it was agreed that Williams would review Miller’s account if he provided new evidence of credits due, Miller never gave any such evidence to Williams. Williams’ regional vice president, Chuck Mooney, testified that he had personally spent several weeks reviewing the Millercraft account, and had examined all the documentation and credits and determined that the unpaid balance was $28,332.86.

After Miller defaulted on the promissory note, Williams sued him. Miller contended that Williams breached its agreement not to demand payment of the note until it conducted an audit and review of the underlying account. Miller asserted that this purported breach amounted to a failure of consideration. He further argued that Williams took unfair advantage of his financial and family situation. Determining that no material issue of disputed fact remained, the trial court granted judgment to Williams. Held:

1. We reject Miller’s contention that the trial court could not grant summary judgment because it had previously denied summary judgment during an earlier term of court. The denial of a motion for summary judgment is not, by definition, a final judgment. See Pace Constr Corp. v. Northpark Assn., 215 Ga. App. 438, 439 (450 SE2d 828) (1994). Notwithstanding Miller’s argument to the contrary, because the denial of Williams’ motion was not a final judgment, OCGA § 9-11-60 (d) was inapplicable. Inasmuch as the underlying case was still pending after the initial denial of Williams’ motion, the trial court retained jurisdiction to enter a subsequent order.

2. Notwithstanding Miller’s contention to the contrary, the record does not show that the trial court entered a judgment on the pleadings. An apparent clerical error in the first sentence of the summary judgment order misstates that it is a judgment on the pleadings. However, the context of the order as a whole, as well as the court’s statement that it was granting summary judgment in the absence of genuine issues of material fact, make plain the nature of the order at issue.

3. (a) Miller’s claim that the trial court improperly considered matters outside the pleadings is incomprehensible, especially in light of his own submission of “Defendant’s Response to Plaintiff’s Motion for Summary Judgment.”

(b) Miller contends that the trial court failed to consider evidence from conflicting affidavits as to the exact amount owed, whether Williams breached its agreement to audit the account, and whether his financial and family circumstances gave rise to Williams’ use of undue influence in forcing him to sign the note at issue for an amount he did not admit to owing. We disagree. Once the record evidence, as here, shows a promissory note has been duly executed and is in default, a prima facie right to judgment is established and the burden shifts to the debtor to establish an affirmative defense. Jay Gleason Advertising Svc. v. Gleason, 193 Ga. App. 445 (1) (388 SE2d 43) (1989). This Miller did not do.

Miller’s failure of consideration argument lacks merit. Under OCGA § 11-3-408, “no consideration is necessary for an instrument or obligation thereon given in payment of or as security for an antecedent obligation of any kind.” (Emphasis omitted.) First State Bank &c. Co. v. Young, 202 Ga. App. 566, 567 (415 SE2d 18) (1992). Here, the promissory note was created to settle Miller’s antecedent obligation, notwithstanding Miller’s subsequent denials that any such obligation existed. Although Miller testified that when he signed the note, “I did not feel like I owed Williams Brothers any money,” and that “I agreed to sign the note under protest,” such assertions are not supported by any corroborative evidence. Although Miller may well have had an opinion that Williams had miscalculated the outstanding balance, he failed to offer any evidence to support his belief. Conclusory statements in affidavits unsupported by factual evidence are insufficient to avert summary judgment. Bd. of Natural Resources v. Walker County, 200 Ga. App. 301, 307 (3) (407 SE2d 436) (1991). Thus, Miller could not avail himself of the defense of failure of consideration. Southern Dev. Co. v. Shepco Paving, 206 Ga. App. 535, 538 (3) (426 SE2d 234) (1992).

4. Miller contends that a jury must resolve whether Williams took unjust or unfair advantage of his economic necessity or distress. Relying on OCGA § 13-5-6, Miller asserts that the contract was rendered voidable because he did not freely assent to the promissory note and was coerced into signing it. We disagree.

“ ‘Duress which will avoid a contract must consist of threats of bodily or other harm, or other means amounting to coercion, or tending to coerce the will of another, and actually inducing him to do an act contrary to his free will.’ [Cit.]” Tidwell v. Critz, 248 Ga. 201, 203 (282 SE2d 104) (1981). “One may ‘not void a contract on grounds of duress merely because he entered into it with reluctance, the contract is very disadvantageous to him, the bargaining power of the parties was unequal or there was some unfairness in the negotiations preceding the agreement.’ ” Id. at 204 (1). Here, there is no evidence of duress apparent in the record that would show that Williams’ actions deprived Miller of his free will. Even assuming for the sake of argument that Miller was experiencing economic distress, such financial difficulties do not constitute legal distress. Morey v. Brown Milling Co., 220 Ga. App. 256, 257 (2) (469 SE2d 387) (1996).

5. Miller claims that the trial court erred in considering the affidavit of Fabian Boudreau because the affidavit did not attach the records and documents upon which the affiant relied. Williams submitted a second, unobjected-to affidavit from Boudreau in which Boudreau attested to virtually the same facts. In these circumstances, Miller failed to show the requisite harm and error needed for reversal. Ga. Power Co. v. Bishop, 162 Ga. App. 122, 126 (6) (290 SE2d 328) (1982).

Decided February 18, 1998.

Daniels & Taylor, Wayne A. Bailey, for appellant.

Jackel, Rainey, Marsh & Busch, James C. Busch, Chad K. Reed, for appellee.

Judgment affirmed.

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


author: Johnson, Judge.

text:
    A98A0542.
    BRANTLEY v. THE STATE.
    (497 SE2d 399)
   Johnson, Judge.

A jury found Dejuan Terrell Brantley guilty of armed robbery and aggravated assault. He appeals from the conviction entered on the jury’s verdict.

1. Brantley’s argument that the evidence was insufficient to support his conviction is not supported by the record. On appeal the evidence must be viewed in a light most favorable to the verdict, and Brantley no longer enjoys the presumption of innocence. Rigenstrup v. State, 197 Ga. App. 176, 180-181 (4) (398 SE2d 25) (1990). Viewed in that light, the state’s evidence was as follows. The victim operates a flea market-type business out of his home in rural Putnam County. He sells furniture, electronics and stereo equipment for cars. On August 27, 1995, three young men came to his house to look at his merchandise. The victim began showing them amplifiers and explaining their various features. One of the men decided to buy an amplifier, but said his money was in the car. At that point Brantley said he would “take care” of it. The victim initially thought Brantley meant he would pay for the amplifier, but began to feel uneasy when he noticed that Brantley had a big grin on his face and was playing with the top of his pocket. The three men began to crowd the victim, pushing him until he lost his balance. The victim kept watching Brantley’s hands, expecting to see a weapon, but none was drawn. The men began to grab merchandise, including two amplifiers and a set of speakers, and ran with it to a maroon, Toyota-type car which had a drive-out tag advertising “Classic Motors.” The victim got up to get a better look at the men and the car and shouted at them that they were going to get caught because he could identify them. Brantley then ran toward the victim with a pistol and fired three shots, one of which hit the victim.

Two months after the incident, the victim and his wife saw a maroon car at a convenience store in a neighboring county. The victim recognized Brantley as the person who had shot him. Several days later the police prepared a photographic lineup, and the victim picked out Brantley’s picture.

At trial, a representative from Classic Motors of Milledgeville produced a bill of sale for a burgundy 1992 Toyota showing it was sold to Charles A. and Dejuan T. Brantley on July 10, 1995. The car seen by the victim at the convenience store had a Georgia tag but displayed a “Classic Motors” sticker on the rear panel.

The evidence was sufficient to authorize a rational trier of fact to find Brantley guilty beyond a reasonable doubt of armed robbery and aggravated assault. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see Clark v. State, 226 Ga. App. 176, 177 (1) (486 SE2d 393) (1997).

2. Brantley argues that he was not indicted, convicted or sentenced according to Georgia law because the offenses of armed robbery and aggravated assault merge as a matter of law. Aggravated assault and armed robbery do not merge as a matter of law. Hambrick v. State, 256 Ga. 148, 150 (344 SE2d 639) (1986); Harvey v. State, 233 Ga. 41, 43 (1) (209 SE2d 587) (1974); Taylor v. State, 219 Ga. App. 475, 477-478 (4) (465 SE2d 473) (1995). Although the offenses of aggravated assault and armed robbery may merge as a matter of fact, Brantley does not offer this as a basis for his argument. Therefore, we need not examine the facts in this case to determine whether the offenses should have merged as a matter of fact.

3. Brantley asserts he was denied effective assistance of counsel at trial. “To establish ineffective assistance of counsel, [Brantley] must show (1) that counsel’s performance was deficient, i.e., that counsel’s performance was not reasonable under all the circumstances, and (2) that this deficient performance prejudiced the defense, i.e., that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Citations and punctuation omitted.) Sartin v. State, 223 Ga. App. 759 (479 SE2d 354) (1996). “A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.” (Citations and punctuation omitted.) Rogers v. State, 210 Ga. App. 164 (2) (435 SE2d 457) (1993).

(a) Without citing to authority, Brantley first asserts his trial counsel was ineffective because no evidence was presented by the defense. The decision involved in determining whether the benefit of presenting evidence on defense during a criminal trial outweighs the loss of first and last closing argument is one of trial strategy. See Brown v. State, 268 Ga. 354, 357 (4) (a) (490 SE2d 75) (1997). “Trial strategy and tactics do not equate with ineffective assistance of counsel. The fact that [Brantley] and his present counsel disagree with the decisions made by trial counsel does not require a finding that [Brantley’s] original representation was inadequate.” (Citations and punctuation omitted.) Nihart v. State, 227 Ga. App. 272, 273 (1) (488 SE2d 740) (1997). Furthermore, Brantley has failed to identify any specific defense his counsel failed to raise. Therefore, Brantley has failed to show that any purported deficiency in his trial representation was a result of ineffectiveness and not deliberate trial strategy. See Williams v. State, 211 Ga. App. 393, 395 (2) (b) (439 SE2d 11) (1993).

Decided February 18, 1998.

Lawrence, Ford & Ridgeway, Francis N. Ford, for appellant.

Fredric D. Bright, District Attorney, Richard M. Gailey, Jr., Assistant District Attorney, for appellee.

(b) Brantley also asserts trial counsel was ineffective in failing to demand a hearing on a previously filed motion to suppress evidence. The motion sought to suppress a statement given by Brantley to law enforcement officers. However, as conceded by Brantley in his brief, the state never attempted to introduce the statement into evidence at trial. Therefore Brantley was not prejudiced by the failure of trial counsel to demand a hearing. See generally Stephens v. State, 214 Ga. App. 183, 188 (10) (447 SE2d 26) (1994).

(c) Finally, Brantley asserts his trial counsel was ineffective for failing to call members of his family as witnesses during the sentencing hearing. On Brantley’s behalf, counsel informed the court that Brantley’s mother and grandparents were present to support him, asked the court to take into consideration Brantley’s age in determining the sentence, and argued strongly for a term of years. Because we do not find a reasonable probability, in light of Brantley’s criminal record, that he would have received a different sentence had family members been called to testify at the sentencing phase on his behalf, counsel was not ineffective for failing to demand that they be allowed to testify. See Baxter v. Kemp, 260 Ga. 184, 190-191 (8) (e) (391 SE2d 754) (1990).

The trial court’s finding in this case that Brantley received effective assistance by trial counsel was not clearly erroneous.

Judgment affirmed.

Birdsong, P. J, and Smith, J., concur.


text:
    A96A2188.
    WASHINGTON v. GEORGIA BAPTIST MEDICAL CENTER et al.
    (501 SE2d 1)
    Decided January 22, 1998
    Reconsideration denied February 19, 1998

      Zachary & Segraves, J. Ed Segraves, for appellant.

      Sullivan, Hall, Booth & Smith, Terrance C. Sullivan, Alston &

      Bird, Robert D. McCallum, Jr., Harman, Owen, Saunders & Sweeney, H. Andrew Owen, Jr., Gleaton, Scofield, Egan & Jones, Frederick N. Gleaton, Duvall, McCumber & Doverspike, Jerry D. McCumber, for appellees.
   Johnson, Judge.

In Clark v. Washington, 268 Ga. 649 (492 SE2d 665) (1997), our decision in Washington v. Ga. Baptist Med. Center, 223 Ga. App. 762 (478 SE2d 892) (1996) reversing the trial court’s grant of summary judgment in favor of the defendants was affirmed in part, reversed in part, and remanded to this Court for consideration of Dr. Clark’s alternative theory that he is entitled to judgment under OCGA § 51-1-29.1.

In pertinent part OCGA § 51-1-29.1 (a) provides that “[n]o health care provider . . . who voluntarily and without the expectation or receipt of compensation provides professional services . . . shall be liable for damages or injuries alleged to have been sustained by the person nor for damages for the injury or death of the person when the injuries or death are alleged to have occurred by reason of an act or omission in the rendering of services.” In his affidavit in support of his motion for summary judgment, Dr. Clark stated: “In treating Mr. Washington upon his arrival at Georgia Baptist, I was voluntarily providing my assistance as the on-call vascular surgeon, and I had no expectation of payment at the time I provided medical services to Mr. Washington. I have not received a fee or compensation of any kind from Mr. Washington or anyone acting on his behalf.”

Citing to his affidavit testimony, Dr. Clark asserts in his brief that he was never compensated by any private or public source for his services. This is an overbroad reading of his affidavit, which states that he had not been compensated from Mr. Washington or anyone acting on his behalf. It does not say that Dr. Clark, or Atlanta Vascular Specialists, P.C., was never compensated at all by anyone for the provision of on-call services generally, or for Dr. Clark’s visit to the emergency room in this instance. As stated, Dr. Clark has not set forth a prima facie right to summary judgment under the statute.

Because we believe that Dr. Clark was not entitled to summary judgment on the ground of charitable immunity, our earlier reversal of the trial court’s grant of summary judgment remains the judgment of this Court.

Judgment reversed.

McMurray, P. J., and Ruffin, J., concur.


author: Smith, Judge. Beasley, Judge,

text:
    A97A1725.
    JETT v. STATE OF GEORGIA.
    (498 SE2d 274)
   Smith, Judge.

Defendant John Jett was indicted on three counts of violating the Georgia Controlled Substances Act, one count of trafficking in cocaine, and one count of possession of a firearm by a convicted felon. At the time of his arrest and afterwards, the State seized a variety of personal property, including automobiles, currency, and weapons and placed a lien on Jett’s residence based on allegations that Jett sold cocaine to a confidential informant. On May 28, 1996, the State filed a complaint for forfeiture of this real and personal property, and Jett was personally served with the complaint in jail where he had been held since his arrest.

On June 20, 1996, Jett filed his answer to the civil forfeiture complaint asserting an interest in some of the seized property. Other family members also filed claims asserting interests in some of the property. On July 12, 1996, the State filed its motion for judgment of forfeiture and disposition of property, asserting that the claimants’ answers did not satisfy the specific pleading requirements of OCGA § 16-13-49 (o) (3). Then, on July 15, 1996, more than 30 days after being served with the forfeiture complaint, Jett filed an amended answer providing more specific facts supporting his claim of innocent ownership. For the first time, Jett asserted an interest in certain of the currency. Simultaneously, Jett filed a motion to dismiss the complaint, arguing that the State could not, without violating his Fifth Amendment right against self-incrimination, compel him to answer the civil forfeiture complaint because criminal charges were pending against him and information contained in his answer to the forfeiture complaint could be used against him in the criminal action.

On September 11, 1996, Jett pleaded guilty to one count of trafficking in cocaine, two counts of VGCSA, and one count of possession of a firearm by a convicted felon. On February 10, 1997, the trial court ruled that all three claimants’ answers were defective and granted the State’s motion for judgment of forfeiture. Jett appeals the trial court’s ruling and raises three enumerations of error.

1. Jett has failed to support his first general enumeration of error by citation of authority or argument pursuant to Court of Appeals Rule 27 (c) (2). To the extent Jett was asserting any error other than those addressed in Divisions 2 and 3 below, we therefore deem his claims abandoned. See Roberts v. State of Ga., 226 Ga. App. 824, 826 (3) (487 SE2d 667) (1997).

2. In his next enumeration of error, Jett argues that his failure to file a legally sufficient answer to the forfeiture complaint was attributable to his fear of self-incrimination. He contends that his Fifth Amendment rights under the United States Constitution and Constitution of the State of Georgia were therefore violated.

Although our courts have recognized that the privilege against self-incrimination is applicable in civil cases, “there is no blanket Fifth Amendment right to refuse to answer questions in noncriminal proceedings. The privilege must be specifically claimed on a particular question and the matter submitted to the court for its determination as to the validity of the claim.” (Citations and punctuation omitted.) Tennesco v. Berger, 144 Ga. App. 45, 48 (240 SE2d 586) (1977). The burden is on the individual claiming the privilege,“to state the general reason for his refusal to answer and to specifically establish that a real danger of incrimination existed with respect to each question.” (Citations and punctuation omitted.) Petty v. Chrysler Credit Corp., 169 Ga. App. 418 (312 SE2d 874) (1984). See also Chambers v. McDonald, 161 Ga. App. 380, 381 (288 SE2d 641) (1982).

The record here shows that Jett failed to meet his burden of proof by making the requisite showings. At no time has Jett specifically established that a real danger of incrimination existed with respect to any of the factual disclosures he was required to make in his answer to the civil forfeiture complaint. He has not shown how the financial information sought by OCGA § 16-13-49 (o) (3), pertaining to the nature and extent of his claimed ownership interest in the seized property, could be used against him in the pending criminal proceeding. Further, by Jett’s filing of his amended answer containing extensive factual information regarding his interest in the seized property prior to his guilty plea, he has in effect conceded that the information contained in his answer was not incriminating.

Accordingly, we find Jett’s claim of self-incrimination to be an impermissible attempt to “merely slide out of his obligations by a brash assertion that any and all questions directed to him would tend to incriminate him, regardless of the likelihood of such result.” (Citations and punctuation omitted.) Petty, supra at 418. There was no error.

3. Jett next argues that the permissive language of Georgia’s forfeiture statute excused him from the obligation of filing any answer to the forfeiture complaint and that the trial court was therefore without authority to grant the State’s motion for judgment of forfeiture without first affording him a hearing on his claim. We disagree.

Georgia’s forfeiture statute, OCGA § 16-13-49, sets forth a strict timetable, as well as specific pleading requirements regarding factual information that must be included in claims or answers filed by those claiming interests in seized property. These pleading requirements have been strictly construed by our courts. See, e.g., State of Ga. v. Alford, 264 Ga. 243, 245 (2) (b) (444 SE2d 76) (1994). Further, failure to file timely answers in strict compliance with the specific pleading requirements of the forfeiture statute results in dismissal. Id. at 246. In the present case, we have examined Jett’s initial answer to the forfeiture complaint and find that the trial court was correct in determining that Jett’s answer was defective and “amounted to no answer[ ] at all.” Jarrett v. State of Ga., 220 Ga. App. 559, 561 (2) (472 SE2d 315) (1996). Likewise, we find the trial court correctly determined that Jett’s amended answer did not relate back to his original pleading and cure the defective initial answer. Id. at 561. Compare Lee v. State of Ga., 225 Ga. App. 733, 735-736 (484 SE2d 777) (1997) (amendment allowed where failure to file legally sufficient answer clearly result of clerical error such as omission of page). The trial court therefore did not err in granting the State’s motion and ordering the disposition of the seized property. OCGA § 16-13-49 (o) (4); Jarrett, supra at 561; Alford, supra at 245.

We reject Jett’s argument that the language of OCGA § 16-13-49 (o) (3) excused him from having to file any answer or, alternatively, a formal answer in compliance with the strict pleading requirements of the forfeiture statute. The use of the auxiliary verb “may” in this Code section makes the filing of an answer to a forfeiture complaint permissive only in the sense that this statute recognizes that a claimant cannot be forced to claim an interest in seized property or to litigate a forfeiture proceeding. If a claimant elects not to file an answer, however, that claimant must suffer the consequence of his or her property being forfeited to the State. OCGA § 16-13-49 (o) (4). On the other hand, if a claimant elects to file an answer, then the strict pleading requirements of OCGA § 16-13-49 (o) (3) must be followed. In this case, Jett was under no obligation to file an answer to the forfeiture complaint. Having attempted to do so, however, his answer was subject to the strict pleading requirements of OCGA § 16-13-49 (o) (3). See Jarrett, supra at 561; Alford, supra at 245. Jett’s attempt to draw a distinction between the obligations of claimants who are personally served with forfeiture complaints and claimants who are served by publication is totally without merit.

Judgment affirmed.

McMurray, P. J, concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur fully in Divisions 1 and 3 but rely on a different basis for the rejection of Jett’s second enumeration of error, which is ruled on in Division 2 of the majority opinion.

Jett’s enumeration is that “[t]he trial court erred in requiring Appellant to answer the State’s Complaint in violation of his Fifth Amendment rights against self-incrimination.”

The State’s complaint for forfeiture was served on Jett on May 28, 1996, and Jett filed a purported answer on June 20 within the 30 days allowed by OCGA § 16-13-49 (o) (3). In it he claimed only that he was part owner of the subdivision lot which the State sought forfeiture of, which he described, and he responded separately to each of the other allegations in the State’s complaint. He did not raise any Fifth Amendment right as a reason for not complying with the very specific listed requirements of OCGA § 16-13-49 (o) (3) as to the real property, nor did he raise this as a reason for not filing a possible claim to any of the personal property involved. Nor, before the time for claims expired, did he seek a stay under subsection (w) of the statute on Fifth Amendment grounds.

Instead, long after the time had passed, Jett filed a purported amendment to his answer, stating that he “took an interest” in the real property on June 5, 1986 for $5,000, which conveyance was recorded in designated property records of the county. In this answer he also asserted a claim to $5,000 of the cash seized by the State and explained that it was the proceeds from settlement of an auto collision and included damages for “the Jett vehicle.” It was initially at this time, by a separate motion, that Jett claimed his Fifth Amendment rights were “violated by the State in forcing Claimant to respond to a civil action after a criminal action has begun.”

Regardless of the merits of such a theory, it was advanced too late. The time for raising it would be within the time for filing an answer, as his privilege is waived if not invoked at the “first opportunity.” Cohran v. Carlin, 165 Ga. App. 141, 144 (297 SE2d 738) (1982); see Axson v. Nat. Surety Corp., 254 Ga. 248 (327 SE2d 732) (1985) (party must raise Fifth Amendment privilege as to each question asked). As the trial court pointed out, “[h]ad he [raised his Fifth Amendment issues prior to filing his purported answer], the Court would have had the opportunity to conduct an in camera review or other proceedings to determine the validity of his Fifth Amendment claim.”

Decided February 19, 1998.

James E. Voyles, for appellant.

J. Tom Morgan, District Attorney, Stephen D. Sencer, Assistant District Attorney, for appellee.

Jett’s first answer, although it was timely, did not provide the information required by OCGA § 16-13-49 (o) (3) and thus was not an answer at all. State of Ga. v. Alford, 264 Ga. 243, 245 (2) (b) (444 SE2d 76) (1994); Jarrett v. State of Ga., 220 Ga. App. 559, 561 (1) (472 SE2d 315) (1996). The attempted amendment had nothing to relate back to, even if such were permitted. Jarrett, supra at 561 (2). And the Fifth Amendment assertion was not a part of it anyway but instead apparently related to possible claims to the other personal property the State wished to subject to forfeiture (cocaine, three cars, two guns, a beaker, a triple beam scale, three packages of razor blades, and a camcorder).

Consequently, there is no proper Fifth Amendment challenge to rule on. For that reason I conclude that Jett’s second enumeration of error does not call for a full review of the merits, much less a reversal of the judgment.

       The other claimants have not appealed the trial court’s ruling.

       OCGA § 16-13-49 (o) (3) provides: “An owner of or interest holder in the property may file an answer asserting a claim against the property in the action in rem. Any such answer shall be filed within 30 days after the service of the summons and complaint. Where service is made by publication and personal service has not been made, an owner or interest holder shall file an answer within 30 days of the date of final publication.” (Emphasis supplied.)


author: Pope, Presiding Judge.

text:
    A97A2560.
    PADGETT v. THE STATE.
    (498 SE2d 84)
   Pope, Presiding Judge.

During a bench trial, defendant John Lee Padgett was convicted of driving under the influence of alcohol to the extent that he was a less safe driver. OCGA § 40-6-391 (a) (1). On appeal, defendant contends that the evidence against him was insufficient to warrant his conviction and that the trial court erred in granting the State’s motion in limine to exclude expert testimony regarding two field sobriety tests defendant took prior to being arrested. Finding no merit to either contention, we affirm.

Construed to support the verdict, the evidence shows that during the early morning hours of April 3, 1996, Forest Park Police Officer Shipp was patrolling Jonesboro Road when he noticed defendant’s truck in front of him. While pacing the truck for approximately one mile, Shipp observed defendant weave outside both the left and right lines of his lane of traffic. On two occasions, defendant also completely switched between two lanes of traffic without signalling. Based on the above, Shipp pulled defendant over. Upon doing so, Shipp observed that defendant had to steady himself on the door of his truck to keep his balance while exiting the truck. While talking to defendant, Shipp further observed that defendant was unsteady on his feet and had a strong odor of alcoholic beverage on his breath and person. Defendant also had red eyes and slurred speech, and admitted that he had had a few beers on an empty stomach and no sleep in approximately 21 hours.

Subsequently, Shipp asked defendant to take several voluntary field sobriety tests. -After determining that defendant had a college education and knew the alphabet, Shipp specifically asked defendant to recite the alphabet. When defendant attempted to do this, he spoke quickly and made a mistake after “p.” From that point on, defendant spoke in an incomprehensible fashion. Next, defendant was asked to count backwards from 64 to 49. In attempting this, defendant made a mistake, and after doing so, cussed, then apologized. Thereafter, defendant never completed the countdown. Defendant also blew into an alco-sensor which indicated the presence of alcohol in his breath. And throughout Shipp’s investigation, defendant repeatedly interrupted Shipp, asking him to give defendant a break.

After the field sobriety tests, Shipp arrested defendant and immediately advised him of his implied consent rights. He then transported defendant to the police station where defendant initially agreed to take a breath test after again being advised of his implied consent rights. The first attempt to test defendant was invalid due to mouth alcohol. Consequently, Shipp advised defendant that.he would be given a second test in approximately 20 minutes. After waiting 20 minutes, however, defendant refused to take a second test.

At trial, based on all of his observations and his law enforcement experience, which included over three years on the DUI Task Force and 570 DUI arrests; Shipp opined that defendant was under the influence of alcohol to the extent he was a less safe driver at the time of his arrest.

1. In light of the above, any rational trier of fact could have concluded that defendant was guilty beyond a reasonable doubt of the crime for which he was convicted. See Simms v. State, 223 Ga. App. 330 (477 SE2d 628) (1996); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. We reject defendant’s contention that the trial court erred in granting the State’s motion in limine to exclude expert testimony regarding the general import that should be placed on the results of the “alphabet” and “number countdown” field sobriety tests given to defendant. Such tests constitute “dexterity exercises that common sense, common experience, and the ‘laws of nature’ show are performed less well after drinking alcohol. [And the] physical manifestations of impairment, which [may accompany the taking of tests like this, can] be as obvious to the layperson as to the expert.” (Citations omitted.) Hawkins v. State, 223 Ga. App. 34, 36 (1) (476 SE2d 803) (1996). See State v. Pastorini, 222 Ga. App. 316, 318-319 (2) (474 SE2d 122) (1996). Accordingly, assessment of defendant’s performance on the dexterity tests at issue in this case, and the import to be placed on that performance, was not beyond the ken of an average layman or trier of fact. Therefore, expert testimony on the subject was not warranted, and the trial court did not err in granting the State’s motion in limine to exclude such testimony. See Williams v. State, 254 Ga. 508, 510-511 (2) (330 SE2d 353) (1985); Baxter v. Melton, 218 Ga. App. 731 (463 SE2d 53) (1995).

Decided February 19, 1998

William C. Head, for appellant.

Keith C. Martin, Solicitor, Rebecca G. Simpson, Assistant Solicitor, for appellee.

Judgment affirmed.

Johnson, J., concurs. Blackburn, J., concurs in judgment only.

       In addition to the above tests, defendant also took the horizontal gaze nystagmus test. Shipp, however, did not testify at trial regarding any results of that test, but merely indicated that he had looked at defendant’s eyes while holding a pen in his hand.


author: McMurray, Presiding Judge.

text:
    A97A2007, A97A2008.
    JENNINGS v. THE STATE (two cases).
    (497 SE2d 13)
   McMurray, Presiding Judge.

Defendant was indicted for burglary and aggravated assault. Both charges arise from an incident of domestic violence involving defendant’s former girl friend, Suzanne Estep. Defendant allegedly burglarized Estep’s home and then struck her guest, David Parson. Defendant filed these appeals after the denial of his former jeopardy plea and his conviction for the aggravated assault. We affirm both judgments as defendant was not placed in jeopardy by proof of the crimes charged during a prior jury trial under an indictment charging him with other criminal offenses, because defendant waived his right to a jury trial within the original time prescribed by OCGA § 17-7-170 (b), and because the trial court did not err in admitting evidence that defendant committed criminal acts during other domestic violence episodes with Estep.

Defendant was indicted in the Clayton County Superior Court on March 27, 1996, during the February 1996 term of court. On April 16, 1996, during the same court term, defendant filed a demand for trial pursuant to OCGA § 17-7-170 (b). This demand bears the case number of the indictment charging defendant with the above offenses, as well as the case number of another Clayton County Superior Court indictment (“the related indictment”) charging defendant with burglary, terroristic threats and criminal damage to property in the second degree. Although both indictments were entered on March 27, 1996, each is based on separate incidents of domestic strife involving defendant and Estep.

On July 15, 1996, during the term of court following defendant’s demand for trial (the May 1996 term), defendant was tried before a jury on crimes alleged in the related indictment. The evidence adduced at this trial reveals that defendant entered Estep’s home on July 2, 1995, poured paint on her property, and wrote offensive messages on her home’s walls and floor. The State also proved that defendant returned to Estep’s home five days later and assaulted her guest, David Parson. This incident (which is the basis of the crime at issue in the case sub judice) was admitted into evidence as a similar criminal act or occurrence. The jury found defendant guilty under the related indictment of the lesser included offense of criminal trespass. Defendant was acquitted of the other offenses charged in the related indictment.

The trial court called the case sub judice to trial (on July 18, 1996) during the May 1996 term of court, the last term before expiration of the time required to try defendant under his OCGA § 17-7-170 (a) demand for trial. Defendant announced ready but also moved to postpone trial so that he could press a double jeopardy plea based on a claim that jeopardy attached when the State proved that he committed the crimes charged in the case sub judice during his trial on the charges in the related indictment. Because less than two weeks remained before expiration of the court term, the trial court warned defendant that such a postponement would forfeit the possibility of a jury trial within the 12 days remaining in the term of court. Defendant, nonetheless, pressed for postponement (which the trial court granted), filed a plea of former jeopardy and requested an evidentiary hearing on this plea. After conducting a hearing on defendant’s former jeopardy plea two court terms later (on November 12, 1996), the trial court denied defendant’s double jeopardy plea and called the case sub judice to trial.

The evidence adduced at trial reveals that defendant entered Estep’s home on the morning of July 7, 1995, and struck Parson with a flashlight. The State also introduced evidence that defendant committed other offenses during domestic disputes with Estep on June 15, 1995, July 2, 1995, and September 27, 1995. The jury found defendant not guilty of burglary but guilty of aggravated assault.

In Case No. A97A2007, defendant appeals from the denial of his former jeopardy plea and in Case No. A97A2008, defendant appeals from his aggravated assault conviction. Held:

Case No. A97A2007

1. The trial court did not err in denying defendant’s double jeopardy plea because defendant was not placed in jeopardy by proof that he committed the crimes charged in the case sub judice during the jury trial under the related indictment charging defendant with criminal offenses which allegedly occurred during a prior domestic violence incident. Loden v. State, 199 Ga. App. 683, 689 (6) (406 SE2d 103). See Daniel, Ga. Criminal Trial Practice (1990 ed.), p. 380, § 14-26.

Case No. A97A2008

2. Defendant contends the trial court lacked jurisdiction to try him for the crimes charged, arguing that he was automatically discharged and acquitted of these offenses under OCGA § 17-7-170 (b) upon expiration of the May 1996 term of court. This contention is without merit. Defendant waived his right to be tried before expiration of the May 1996 court term by requesting a postponement of trial less than two weeks before expiration of this court term and by then filing a plea of former jeopardy and a request for a hearing on this plea. Ballew v. State, 211 Ga. App. 672 (440 SE2d 76). Compare Birts v. State, 192 Ga. App. 476 (385 SE2d 120).

3. Defendant contends the trial court erred in admitting evidence that he committed criminal acts during other turbulent episodes with Estep, arguing that these offenses were not relevant to prove that he committed an aggravated assault against Parson. This assertion is without merit.

The State not only gave defendant a detailed account (in a pretrial filing entitled, “NOTICE OF STATE’S INTENT TO PRESENT EVIDENCE OF SIMILAR TRANSACTIONS AND PRIOR DIFFICULTIES”) of the similar crimes and occurrences the State sought to introduce into evidence at trial, but the trial court conducted a hearing pursuant to Uniform Superior Court Rule 31.3 (B) and heard a detailed account of the State’s proffer. The State’s attorney pertinently stated that on June 15, 1995, defendant struck Estep, grabbed her neck and accused her of infidelity; that defendant broke into Estep’s home on July 2, 1995, and marked the floor and walls of her home with disparaging words about Estep’s intimate preferences and habits, and that on September 27, 1995, defendant broke into Estep’s home and struck her face. The trial court found these occurrences admissible under the criteria enunciated in Maxwell v. State, 262 Ga. 73, 74 (2) (b) (414 SE2d 470). So do we.

Decided February 3, 1998

Reconsideration denied February 20, 1998

Michael B. King, for appellant.

Robert E. Keller, District Attorney, Erman J. Tanjuatco, Assistant District Attorney, for appellee.

There is sufficient evidence in the case sub judice (1) that the prior acts of domestic violence occurred between defendant and Estep; (2) that this evidence was properly admitted to show defendant’s pattern of violent, irrational and obsessive behavior toward Estep, and (3) that there is sufficient' connection or similarity between the prior difficulties and the crimes charged so that proof of the former tends to prove the latter. That is, proof of defendant’s history of domestic violence and abuse against Estep, along with proof that defendant’s behavior was motivated by his belief that Estep was having intimate relations with other men, is relevant to show defendant’s reasons for entering Estep’s home and beating Parson. See Freeman v. State, 214 Ga. App. 425, 427 (2) (448 SE2d 465).

The trial court did not err in admitting the other crimes and occurrences into evidence at trial.

4. Defendant contends the trial court erred in failing to give limiting instructions regarding use of the similar crimes and occurrences, arguing the trial court should have informed the jury that these outside occurrences were not relevant to prove any element of his alleged aggravated assault upon Parson. Defendant also argues that the trial court “did not provide the jury with a level of proof necessary for the state to show that [he] was the perpetrator of the prior and subsequent acts and that the acts were similar to the charged offenses.” Because defendant does not show that he requested such limiting instructions at trial, these assertions provide no basis for review. See Freeman v. State, 214 Ga. App. 425, 427 (2), supra, and Court of Appeals Rule 27 (a) (1).

Judgments affirmed.

Beasley and Smith, JJ, concur.

       The terms of the Clayton County Superior Court commence on the first Monday in February, May, August, and November. OCGA § 15-6-3 (10).

       This conviction was affirmed in Jennings v. State, 226 Ga. App. 461 (486 SE2d 693).


author: Blackburn, Judge.

text:
    A97A2289.
    GRIFFIN v. TRAVELERS INSURANCE COMPANY.
    (497 SE2d 257)
   Blackburn, Judge.

Lujames Griffin appeals the trial court’s grant of Travelers Insurance Company’s motion for summary judgment. The underlying action was brought to recover benefits for the medical treatment of Griffin’s daughter under a group health insurance policy issued to her employer, the City of Nahunta, Georgia, by The Travelers Insurance Company. Relying on OCGA § 33-24-7, Travelers filed a counterclaim for rescission of the daughter’s coverage on the grounds that Griffin’s application for insurance contained material misrepresentations about her daughter’s health history, which the trial court granted. We affirm the decision of the trial court as the appellate record is inadequate to permit this Court to do otherwise.

A grant of a motion for summary judgment is proper when there is no issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). This Court applies a de novo standard of 'review to a grant of summary judgment, and the evidence must be viewed in the light most favorable to the nonmoving party. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

OCGA § 33-24-7 (b) provides that “[misrepresentations, omissions, concealment of facts, and incorrect statements shall not prevent a recovery under the policy or contract unless: (1) [fraudulent; (2) [mjaterial either to the acceptance of the risk or to the hazard assumed by the insurer; or (3) [t]he insurer in good faith would either not have issued the policy or contract or would not have issued a policy or contract in as large an amount or at the premium rate as applied for or would not have provided coverage with respect to the hazard resulting in the loss if the true facts had been known to the insurer as required either by the application for the policy or contract or otherwise.”

Griffin applied to Travelers for group health insurance coverage for both herself and her daughter. Travelers contends that Griffin filled out only one policy application in which she omitted material details of her daughter’s former health problems. Griffin, on the other hand, contends that she filled out two applications, one for herself and a separate one for her daughter. In her deposition, the majority of which is not of record, Griffin indicated that “I do not know if I did [a separate application].” Griffin further stated that the applications she filled out were never attached to the policy.

In support of its motion for summary judgment based on OCGA § 33-24-7, Travelers filed a brief with a number of exhibits, including Griffin’s deposition and affidavits from Travelers’ employees with regard to Griffin’s application. In its order granting summary judgment, the trial court indicated that it “considered the entire record, including all evidence and all briefs submitted by the parties.” (Emphasis supplied.)

On May 8, 1997, Griffin filed a notice of appeal to this Court in which she directed the clerk to omit from the record “Correspondence, Depositions, and exhibits to the Defendant’s Motion for Summary Judgment.” In her brief, Griffin framed the issues to be considered on appeal as follows: “1. Whether an application for insurance which is not attached to a policy or certificate of insurance may be used by an insurer to rescind the policy pursuant to OCGA § 33-24-7; 2. Whether an insurer who does not attach the application to the policy or certificate of insurance may nonetheless avoid coverage under the policy because of fraud in the inducement to enter the contract, without the insurer repudiating the entire contract; and 3. Whether Griffin’s testimony that she had in fact filled out a separate application for her daughter creates a question of fact as to whether there existed fraud in the inducement.”

When an appellant omits evidence necessary for determination of issues on appeal affirmation is required. Bennett v. Executive Benefits, 210 Ga. App. 429 (436 SE2d 544) (1993). “It is well established that the burden is on the party alleging error to show it by the record and that where the proof necessary for determination of the issues on appeal is omitted from the record, an appellate court must assume that the judgment below was correct and affirm.” Id. On appeal this Court is required to conduct a de novo review which, by definition, is impossible if the appellant omits the very evidence at the heart of our inquiry. By omitting the exhibits to Travelers’ motion for summary judgment, that is exactly what Griffin did here.

Griffin argues that this fatal defect in the record is cured because Travelers’ brief supporting its motion for summary judgment includes the relevant portions of Griffin’s deposition on which the trial court depended. However, the trial court’s order does not indicate that it relied on only a portion of the deposition. To the contrary, it states that it relied on all the evidence available. “Since we have no indication of the testimony that precedes or follows the deposition excerpts . . . our record is incomplete, and we are bound to assume that the trial court’s findings are supported by sufficient competent evidence, for there is a presumption in favor of the regularity of all proceedings in a court of competent jurisdiction.” (Punctuation omitted.) Mullins v. Columbia County, 202 Ga. App. 148, 150 (413 SE2d 489) (1991). Additionally, the depositions of Travelers’ employees have been completely omitted, and we therefore lack crucial evidence regarding both Griffin’s application to Travelers and the circumstances regarding Travelers’ initial acceptance of that application.

Decided February 6, 1998

Reconsideration denied February 20, 1998

Walter D. Adams, Robert C. Harper, for appellant.

Carter & Ansley, H. Sanders Carter, Jr., Kenton J. Coppage, for appellee.

We must emphasize that our ruling here in no way limits the responsibilities placed on an appellee pursuant to Court of Appeals Rule 27 (b). That rule requires an appellee to “point out any material inaccuracy or incompleteness of statement in the appellant’s brief and any additional statement deemed necessary, plus such additional parts of the record or transcript deemed material. Failure to do so shall constitute consent to a decision based on the appellant’s statement. Except as controverted, appellant’s statement of facts may be accepted by this Court as true.” While this rule requires appellee to point out discrepencies in the record, it does not shift the burden to it to produce the portions thereof required for appellate review which were inappropriately omitted by an appellant. As Travelers has complied with Rule 27 (b) in this case, pointing out the omitted portions of the record and controverting Griffin’s statement of facts, Travelers’ arguments herein are both viable and persuasive.

Because the record before us is incomplete, we affirm the decision of the trial court. Although we have decided to consider Griffin’s reply brief in this case, her motion to supplement the record is denied.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

       This quote was taken from an excerpt of Griffin’s deposition contained in Travelers’ motion for summary judgment.


text:
    A97A2453, A98A0067.
    BATTAGLIA v. DUKE; and vice versa.
    (497 SE2d 250)
   McMurray, Presiding Judge.

Petitioner Cavin Lee Duke sought to adopt the minor daughter of his spouse, alleging that “through marriage to the natural mother . . . [the] child has been supported by the Petitioner^ that] the natural mother was awarded custody by a divorce decree . . . [; that a] diligent search has been made for [the natural father, Respondent Darin J. Battaglia], but he cannot be located; [and further alleging that] the natural father of said child has abandoned her in that he has failed to support said child for a period of over one (1) year and has not seen the child for a period of over one (1) year.” The prayers were for termination of the parental rights of Respondent Darin J. Battaglia and the adoption of the child. Personal service of process was made at the Newton County Jail in Covington, Georgia. Respondent filed an objection to the adoption, alleging that he “exercised his visitation rights and visited his minor child, . . . maintaining substantial contact . ■. . [and further alleging he] paid child support. . . .”

The evidence adduced below revealed that Respondent and the natural mother were divorced in 1992. The settlement agreement incorporated into the divorce decree gave the mother “permanent legal custody . . .” of their child. Respondent was granted visitation every other weekend, plus every Thanksgiving and Christmas day, on the day before or the day after the child’s birthday, Father’s day, and two weeks in the summer. “Both parties [agreed to] abstain from any alcohol or any other intoxicants including any illegal substances during visitation. . . .” Respondent further agreed to pay his former wife $65 per week as child support.

Since the divorce, Respondent “has never seen [the child] more than twice in one. year. . . .” Prior to the filing of the petition for adoption in July 1996, the last time Respondent saw her was “March or April of ’95. . . . He ha[d] not seen her at all in 1996. . . . He ha[d] not seen her for over a year, period. . . . He doesn’t call her. He doesn’t contact her. She doesn’t even remember what he looks like. She asks where he is, who he is. . . . [N]o significant amount [of child support] has ever been collected through Child Support Recovery until after this adoption was already filed for. He’s never paid more than $130 in any year.”

Respondent confirmed that he only “paid every week that he could, you know. It’s been a while.” Respondent estimated that in 1992, he paid “over a thousand dollars . . .” in child support. But in 1993, he could only manage “a couple of hundred dollars.” This was because Respondent “had some drug problems . . . [with] [mjarijuana [and] cocaine.” He confirmed he “worked several months that year, but . . . didn’t pay any more child support than [$130 because] he was strung out on dope and drugs.” In 1994, he paid only $526. For 1995, he paid one “hundred dollars for the whole year[.]” Respondent was not “making regular payments to Child Support Recovery . . . because of [his] problem with drugs[.]” He confirmed he “really didn’t want to find [his] child because [he] faced the possibility of going to jail[.]” In the last two years, he never brought over any Christmas or birthday presents. At an attempted visitation on Christmas day 1996, Respondent arrived in the unexpected company of several of his relatives. Respondent’s former wife told Respondent “she did not want people outside [her door] and that [the relatives] needed to leave. And [Respondent] said I can’t tell my family to leave and I can’t tell my wife to leave.” An altercation among the adults broke out in front of the child, who “started crying and ran to her room. . . .”

The trial court granted the adoption over Respondent’s objections, finding he had significantly failed to communicate with the child for a period of more than one year in a meaningful, parental manner, and concluding that adoption was in the best interests of the child. Proceeding pro se, Respondent appeals in Case No. A97A2453. In Case No. A98A0067, Petitioner appeals from the trial court’s denial of his motion to dismiss Respondent’s appeal under OCGA § 5-6-48 (c). The cases are hereby consolidated for disposition in a single appellate decision. Held:

Case No. A98A0067

1. Petitioner’s appeal will be considered first because a determination that the trial court erred in denying Petitioner’s motion to dismiss Respondent’s appeal would render moot all issues raised in Case No. A97A2453.

“[T]he trial court may . . . order that the appeal be dismissed where there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by such party.” OCGA § 5-6-48 (c). Petitioner moved to dismiss Respondent’s appeal on the ground that Respondent “has failed to file the transcript within the appropriate time,” namely the 30-day period established by OCGA § 5-6-42. This motion was supported by the affidavit of Barbara Englehardt, the Official Court Reporter for the Rockdale Judicial Circuit, who deposed that, because of a “previous encounter with [Respondent] and/or his family members involving] a “bad’ check, [Ms. Englehardt] requested payment for [her] services by certified funds or cash.” Englehardt refused the tender of a non-certified check but remained “ready, willing and able to provide this transcript upon proper payment.” After a hearing, the trial court denied Petitioner’s motion to dismiss, “inasmuch as [Respondent] paid the necessary costs for the appeal on July 8, 1997[,]” i.e., the day of the hearing.

On appeal, Petitioner’s entire argument merely restates his brief as submitted to the trial court, without acknowledging the trial court’s finding that Respondent eventually paid all necessary costs prior to the trial court’s ruling. Petitioner does not state the standard of review to be applied to the trial court’s decision, as required by Court of Appeals Rule 27 (a) (3). The appellate court must determine, based on the evidence presented, whether the trial court abused its discretion in granting or denying the motion to dismiss the appeal. Cook v. McNamee, 223 Ga. App. 460, 461 (477 SE2d 884). Petitioner’s notice of appeal expressly directs the clerk to “omit everything from the record on appeal, except the Motion to Dismiss, Brief in Support of Motion and Order of July 8, 1997. Transcript of evidence and proceedings will not be filed for inclusion in the record on appeal.” We therefore presume the trial court’s order is supported by those parts of the record designated for exclusion from the record on appeal. Cook v. McNamee, 223 Ga. App. 460, supra. Nowhere does Petitioner show that any delay in the payment of costs caused unreasonable delay in transmitting the record to the Court of Appeals. See Sellers v. Nodvin, 262 Ga. 205 (1), 206 (1) (b) (415 SE2d 908). “Thus, the trial court [in the case sub judice] did not abuse its discretion in denying the motion to dismiss the appeal. See Gilland v. Leathers, 141 Ga. App. 680 (234 SE2d 338) (1977).” Corbin v. First Nat. Bank, 151 Ga. App. 33, 34 (1) (258 SE2d 697).

Case No. A97A2453

2. Respondent’s single-page brief argues he has been “treated unfairly[; that] witnesses for [his] defense were never heard[;] that [he loves his] daughter and want[s] visitation as well as [to] pay [his] child support plus any arrears. Last year alone, [he] paid over $7,000.00 in child support. [He] tried to take out health and life insurance on [the daughter], as well as start a college fund for her.” We interpret this pro se argument as a challenge to the sufficiency of the evidence.

“Surrender of rights of a parent . . . shall not be required as a prerequisite to the filing of a petition for adoption of a child of that parent. . ., if that parent, for a period of one year or longer immediately prior to the filing of the petition for adoption, without justifiable cause, has significantly failed . . . [t]o communicate or to make a bona fide attempt to communicate with that child in a meaningful, supportive, parental manner; or [significantly failed] to provide for the care and support of that child as required by law or judicial decree.” OCGA § 19-8-10 (b).

“ ‘In determining whether “significant” steps have been taken with regard to support. . ., “sporadic and de minimis” efforts do not require the court to find that there have been significant steps. (Cits.)’ In re J. S. J., 180 Ga. App. 873, 875 (3) (350 SE2d 843) (1986).” DuBose v. Richardson, 193 Ga. App. 104 (387 SE2d 156). “ ‘(A)n offer to pay the arrearages comes too late after the filing of the petition for adoption. (Cit.)’ Plymel v. Adams, 132 Ga. App. 621, 622 (208 SE2d 627) (1974).” Kirkland v. Lee, 160 Ga. App. 446, 451 (2) (287 SE2d 365). In the case sub judice, Respondent’s child support obligation of $65 per week amounts to $3,380 per year. By his own admission, Respondent never managed to pay that sum for his child’s support until after the filing of this adoption petition. Rather, he chose to squander his earnings on marijuana and cocaine. That history provides clear and convincing proof that Respondent significantly failed without justifiable cause to pay child support, as required by Respondent’s consent divorce decree, for the year immediately preceding the filing of the adoption petition. Keys v. Ankerich, 193 Ga. App. 107, 108 (2), 109 (386 SE2d 736).

Decided February 3, 1998

Reconsideration denied February 20, 1998.

Darin J. Battaglia, pro se.

David B. Irwin, for appellee.

3. Respondent also complains that he has “been treated unfairly!, contending that] witnesses for [his] defense were never heard by . . . the [trial judge].” But there are no references to the transcript to document where witnesses were proffered only to have them excluded by the trial court. Nor is there any citation of authority or argument in support of this contention. Consequently, any valid claim that Respondent was denied due process must be deemed abandoned. See Court of Appeals Rule 27 (c) (2) and (3).

Judgments affirmed in Case Nos. A97A2453 and A98A0067.

Beasley and Smith, JJ., concur.


text:
    A97A2524.
    NEWMAN et al. v. THOMPSON.
    (497 SE2d 8)
   Blackburn, Judge.

Plaintiffs Alan Gardner and Kathryn Newman appeal the jury verdict in favor of defendant John H. Thompson in their action for the wrongful death of and personal injury to their son, Henry Newman, caused by the collision of airplanes piloted by both Henry and Thompson. Thompson, who survived the crash, counterclaimed for personal injury and property damage, and the jury found in favor of Thompson on all claims. Henry’s parents contend that the trial court committed reversible error by allowing Thompson’s expert witness to give an opinion based upon facts not supported by competent evidence. For the reasons discussed below, we affirm the judgment.

On April 27, 1993, Henry died when his single-engine Grumman American Yankee AA-1 airplane collided with the twin-engine Cessna 414 flown by Thompson. The collision occurred as the airplanes were landing at 8:16 p.m., about ten minutes after official sundown. The airplanes collided about ten feet above the intersection of perpendicular runways 5 and 14 at the Statesboro Municipal Airport, an “uncontrolled” airport which does not require communication with a control tower prior to landing.

Thompson contended at trial that he did not see Henry flying in the appropriate landing pattern above the airport or hear Henry make any radio announcement of his position before the collision. Thompson testified that he broadcast his own approach on the Statesboro frequency, announcing his position several times in the minutes prior to landing. Hearing and seeing no other air traffic, Thompson assumed it was safe to land. Thompson argued that he would have seen and avoided Henry’s airplane if Henry had been flying in the appropriate pattern with his anti-collision strobe and landing lights on, as required after official sundown by FAA regulations.

The Newmans contended at trial that Henry was flying touch- and-gos in the landing pattern at Statesboro and should have been visible and audible to anyone approaching the airport. The Newmans further contended that Henry and Thompson did not hear each other’s announcements because Thompson was broadcasting on and monitoring the wrong radio frequency. The Newmans also argued that although the sun had set, considerable daylight remained, which made lights less of a factor. Nevertheless, they contended that Henry’s lights were on.

1. In their first enumeration of error, Henry’s parents contend that the trial court erred in allowing Thompson’s expert witness to give an opinion regarding the pilots’ relative ability to see and avoid each other prior to the collision because that opinion was given in response to a hypothetical question that assumed Henry made a “straight in” approach to the runway instead of entering the appropriate flight pattern before he landed. We disagree.

The testimony of an expert witness should not be admitted into evidence when the opinion is based on facts stated in a hypothetical question which are not proven by competent evidence. Kines v. City of Rome, 220 Ga. App. 732 (470 SE2d 311) (1996). Competent evidence includes circumstantial evidence. Wells v. Alderman, 117 Ga. App. 724, 735 (11) (162 SE2d 18) (1968). “Circumstantial evidence can be described as evidence which does not constitute direct proof with regard to the issue of fact or the hypothesis sought to be proven by the evidence; rather, circumstantial evidence constitutes proof of other facts consistent with the hypothesis claimed.” Southern R. Co. v. Ga. Kraft Co., 258 Ga. 232 (367 SE2d 539) (1988). The trier of fact, and not the court, decides whether the assumed fact is actually proved by the circumstantial evidence. Shannon v. Kaylor, 133 Ga. App. 514 (211 SE2d 368) (1974). However, the court must decide whether a conclusion assumed is at least supported by the circumstantial evidence before allowing the matter to go to the jury. Southeastern Fidelity Ins. Co. v. Stevens, 142 Ga. App. 562 (236 SE2d 550) (1977); Warmack v. Mini-Skools Ltd., 164 Ga. App. 737, 738 (1) (297 SE2d 365) (1982).

Decided January 27, 1998

Reconsideration denied February 20, 1998

Smith, Howard & Ajax, Donald R. Andersen, Daniel, Hadden & Alford, Ajalon E. Daniel III, for appellants.

Gray & Gilliland, Charles A. Ratz, for appellee.

The sun set at 8:05 p.m. Henry was not seen in the appropriate landing pattern by Thompson or by any eyewitness immediately preceding the accident. Although a “straight-in” landing is imprudent, it is not illegal or forbidden at an uncontrolled airport. These facts are consistent with Thompson’s theory that Henry flew straight in to the airport. Thus, the trial court properly permitted the hypothetical question and the opinion based upon it to go to the jury.

2. In their second enumeration of error, appellants state that “[t]he trial court erred in entering judgment against [them].” Although it appears appellants may have intended to raise the general grounds, this enumeration of error is not supported in the appellate briefs by citation of authority or argument. Therefore, it is deemed abandoned. Court of Appeals Rule 27 (c) (2). Accordingly, we affirm the judgment of the trial court.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


text:
    A98A0065.
    In the Interest of J. B. W., a child.
    (497 SE2d 1)
   Johnson, Judge.

J. B. W, a minor, directly appeals from the denial of his plea of double jeopardy. See Patterson v. State, 248 Ga. 875 (287 SE2d 7) (1982); Weaver v. State, 224 Ga. App. 243 (480 SE2d 286) (1997); Smith v. State, 190 Ga. App. 246 (378 SE2d 493) (1989).

J. B. W. was involved in an automobile accident on August 19, 1996. The police report indicated that J. B. W. was cited for the offenses of DUI, hit and run, failure to maintain lane, and having no proof of insurance. However, the citations issued charged J. B. W. with driving on the wrong side of the roadway, no proof of insurance, possession of alcohol by a minor while operating a vehicle, and failing to use a seatbelt.

On August 19, 1996, the officer filed a complaint in the Juvenile Court of DeKalb County, assigned file no. 950366201, charging J. B. W. with DUI, hit and run, and failure to maintain lane. Two days later an assistant solicitor filed a petition seeking an adjudication of delinquency based on the DUI and hit and run charges. The petition bears the same file number as the officer’s complaint. On August 22, 1996, J. B. W.’s parents were sent a letter on “Juvenile Court of DeKalb County” letterhead informing them that an arraignment for DUI and hit and run charges had been scheduled for October 2, 1996. On August 23, 1996, another letter was sent to J. B. W.’s parents, on the same letterhead, notifying them that J. B. W. had been cited for various traffic offenses. The letter included the amount of fines for the offenses, instructions for paying, and a warning that if the fines were not paid before September 13, 1996, J. B. W.’s driver’s license might be suspended. The letter also included instructions for pleading not guilty to the offenses.

On September 12, 1996, J. B. W. and his father went to the clerk’s office of the juvenile court in accordance with the instructions in the August 23 letter, entered a plea, and paid the fines, disposing of these offenses. On October 2, 1996, J. B. W. filed a motion to dismiss the other charges pursuant to OCGA § 16-1-7 (b), the double jeopardy statute. Without stating a reason therefor, the juvenile court judge denied J. B. W.’s motion after a hearing. We reverse.

In Weaver, supra, the defendant was arrested for speeding, DUI and endangering a child. He was later charged by accusation of endangering a child and DUI. Weaver initially pled not guilty to all three charges. Later, he pled nolo contendere to the speeding charge and was sentenced by the trial judge. Weaver subsequently filed a plea of double jeopardy with regard to the other charges, which the trial court denied. This Court reversed, holding that a plea of nolo contendere followed by the court’s sentencing constituted a prosecution. “OCGA § 16-1-7 (b) requires the State to prosecute crimes in a single prosecution if the crimes (1) arise from the same conduct, (2) are known to the proper prosecuting officer at the time of commencing the prosecution, and (3) are within the jurisdiction of a single court. [Cit.] A second prosecution is barred under OCGA § 16-1-8 (b) (1) if it is for crimes which should have been brought in the first prosecution under OCGA § 16-1-7 (b). [Cit.]” Weaver, supra at 243.

Likewise, in State v. Kennedy, 216 Ga. App. 405 (454 SE2d 600) (1995), this Court affirmed the grant of Kennedy’s plea of double jeopardy. Kennedy was involved in an automobile accident and was cited for driving on the wrong side of the roadway. The day after the accident, an occupant of the other vehicle died. Kennedy paid the ticket a month before the state filed an accusation charging her with vehicular homicide. The state asserted that the prosecutor did not know of the charge of driving on the wrong side of the road since the charge was handled by the clerk’s office. “This argument was resolved adversely to the State in Smith v. State, 190 Ga. App. 246, 247 (378 SE2d 493) (1989)[, aff’d, State v. Smith, 259 Ga. 352 (381 SE2d 37) (1989)]. There, the court concluded that since the accusation and indictment bore the name of the district attorney, they constituted ‘conclusive circumstantial evidence that the district attorney had actual knowledge of all the offenses arising from the same conduct and the pendency of both prosecutions, (cits.), but chose to proceed separately as to each.’ [Cit.]” Id. See also Morgan v. State, 220 Ga. App. 198 (469 SE2d 340) (1996).

From a review of the authorities cited above, it is clear the denial of J. B. W.’s plea in bar on double jeopardy grounds would be error in the state court system generally. We next examine the state’s contention that a different result is demanded because the proceedings occurred in juvenile court. The state takes the position that double jeopardy protection is unavailable to juveniles because the nature of the proceedings in juvenile court is civil rather than criminal. However, in Breed v. Jones, 421 U. S. 519 (95 SC 1779, 44 LE2d 346) (1975), the United States Supreme Court held that jeopardy does attach within the meaning of the Fifth Amendment in delinquency proceedings in juvenile court. Likewise, in In the Interest of S. L. H., 205 Ga. App. 278, 280 (422 SE2d 43) (1992), this Court acknowledged that constitutional protections against double jeopardy apply to juvenile proceedings, but held that a second prosecution in that case was not barred because the first proceeding had not been improperly terminated. See In re T.E.D., 169 Ga. App. 401, 402 (2) (312 SE2d 864) (1984).

The state also argues that OCGA § 15-11-49 provides for the segregation of juvenile traffic offenses from other delinquency offenses. While that statute provides that certain, more serious traffic offenses shall be handled as delinquent offenses and not juvenile traffic offenses (OCGA § 15-11-49 (c)), it also provides a method by which juvenile traffic offenses generally can be transferred to a delinquency calendar. OCGA § 15-11-49 (d) and (i); In the Interest of B. G. W, 218 Ga. App. 384, 385 (2) (461 SE2d 568) (1995). See also In the Interest of L. J. V., 180 Ga. App. 400 (349 SE2d 37) (1986). All of the charges against J. B. W. arising from this incident could have been prosecuted together in the delinquency proceeding, but were not.

Because the subsequent prosecution of J. B. W. would have been barred on double jeopardy grounds had he been an adult, and because double jeopardy protection also applies to juveniles, the trial court erred in denying his motion to dismiss based on double jeopardy.

Judgment reversed.

Birdsong, P. J., and Smith, J., concur.

Decided January 9, 1998

Reconsideration denied February 20, 1998.

Lewis M. Groover, Jr., for appellant.

Jonath A. Morrow, Solicitor, Lori B. Brudner, Assistant Solicitor, for appellee.


text:
    A97A1807.
    BURKETT v. THE STATE.
    (497 SE2d 807)
   Johnson, Judge.

After a jury trial, Darren Burkett was found guilty of possession of cocaine with intent to distribute. He appeals from the conviction entered on the verdict.

1. Burkett contends the trial court erred in disallowing five of his peremptory strikes and reseating the jurors on the panel after he gave race-neutral reasons for exercising the strikes. We agree and reverse.

During jury selection, Burkett, an African-American, exercised all 11 of his peremptory strikes against white veniremen. The state challenged the strikes pursuant to Georgia v. McCollum, 505 U. S. 42 (112 SC 2348, 120 LE2d 33) (1992). The trial court concluded that a prima facie case of racial discrimination had been established and required Burkett to explain the strikes. As to the five jurors who were eventually reseated, Burkett offered the following explanations: Burkett stated that he struck juror no. 3 because “folks who are retired from the Air Force tend to be prosecution minded.” He struck juror no. 8 because he believed the juror responded affirmatively when asked if he had family in law enforcement, noted that the juror is retired, and remarked that “white folks that are retired, particularly in this case, who was doing some work for Bibb County might be inclined toward the prosecution.” In defense of his strike of juror no. 9, Burkett stated the juror is retired or near retirement from the Air Force, and “folks from the [Air Force base] tend to be prosecution minded.” Juror no. 11 was purportedly struck because he works at the Air Force base, is apparently close to retirement, and his wife works at a high school where there is “a very serious drug problem.” As to juror no. 12, Burkett cited his age and the fact that he grew up “prior to this drug problem in our society.”

The trial judge responded: “This Court does not accept employment at Robins Air Force Base or the fact that an individual has a spouse who teaches in the public schools as being a non-racial reason. . . . [Juror no. 8] did not indicate, the Court recalls, that he had any friends or relatives in law enforcement. The remainder, the defendant has failed to state a non-racial reason. . . .” The trial court then reseated juror nos. 3, 8, 9, 11 and 12. Burkett objected to the ruling, contending that employment is a non-racial reason for striking jurors.

“To evaluate claims that the state or defendant used peremptory challenges in a racially discriminatory manner, the trial court must engage in a three-step process. The opponent of a peremptory challenge must make a prima facie showing of racial discrimination; the burden of production shifts to the proponent of the strike to give a race-neutral reason for the strike; the trial court then decides whether the opponent of the strike has proven discriminatory intent. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” (Citations and punctuation omitted.) Chandler v. State, 266 Ga. 509, 510 (2) (467 SE2d 562) (1996). The record must show that the trial court considered each step of the three-step process separately. Smith v. State, 229 Ga. App. 765 (494 SE2d 757) (1997).

Except with regard to juror no. 8, Burkett articulated race-neutral reasons for striking each of the jurors from the panel. “A race-neutral explanation means an explanation based on something other than the race of the juror.” (Punctuation omitted.) Pickett v. State, 226 Ga. App. 743, 745 (1) (487 SE2d 653) (1997). Contrary to the trial court’s statement, employment, as well as age, are race-neutral explanations. See Gilbert v. State, 226 Ga. App. 230, 231 (486 SE2d 48) (1997); Smith, supra at 765, n. 1. The trial court should have accepted these explanations as race-neutral, then proceeded to step three and determined whether the state had established that Burkett’s explanations were motivated by discriminatory intent. See Jackson v. State, 265 Ga. 897, 899 (2) (463 SE2d 699) (1995); Pickett, supra at 746.

It may be that the trial court refused to accept any of Burkett’s explanations as race-neutral because it concluded that they were pretextual, particularly in light of the racial remark Burkett made in explaining one of his strikes. If in fact the court did this, however, it “prematurely evaluated the persuasiveness of [Burkett’s] explanation^], thereby impermissibly placing the ultimate burden of persuasion upon the proponent of the strike.” Jackson, supra at 899 (2). The state having failed to meet its burden of persuasion, the reinstatement of the jurors resulted in an illegally constituted jury. See Chandler, supra; Leeks v. State, 226 Ga. App. 227, 229 (3) (483 SE2d 691) (1997). Burkett is entitled to a new trial.

2. Because the issue of the admissibility of similar transaction evidence is likely to recur on retrial, we will address it here. Burkett contends the prior transaction was not relevant to a legitimate issue, was prejudicial and was not similar to the charged offense. We disagree.

Decided February 20, 1998.

Joseph M. Williams, for appellant.

The state sought to introduce the evidence to show scheme, bent of mind, and course of conduct. In October “1991, an undercover officer went to the corner of Norris and Stewart Streets and yelled “anybody straight,” indicating that she wanted to purchase crack cocaine. Burkett approached the officer’s unmarked car and sold her one piece of unwrapped crack cocaine for $20. She went back the next day and purchased another $20 piece of crack cocaine wrapped in a piece of plastic which was tied in a knot. Burkett pled guilty to simple possession on those charges and received a 30-year sentence.

In this incident, which occurred in December 1995, uniformed police officers saw Burkett standing on the porch of a vacant house on Norris Street. Burkett ran into the house. The officers left and drove back by the unoccupied house the next day. They saw Burkett again. This time they stopped and asked him to approach the police car. When he did not, one of the officers got out of the car and walked toward Burkett. Burkett turned and walked quickly into the vacant house. The officer followed him and saw that he “was doing something” at the sofa. The officer moved a pillow from the sofa and discovered 43 $20 pieces of crack cocaine, 19 of which were wrapped in pieces of plastic tied in a knot.

“A similar transaction need not be identical in order to be admissible. [Cit.]” Woods v. State, 224 Ga. App. 52, 55 (3) (479 SE2d 414) (1996). There was a logical connection between the incidents in that all three transactions took place on the same street, all involved $20 pieces of crack cocaine, and in the instant case and one of the similar transactions the cocaine was packaged in pieces of knotted plastic. The transactions were sufficiently similar to the charged offense. Moreover, the similar transaction evidence was relevant because it indicated a common design and course of conduct from which a jury could infer that Burkett both possessed and intended to distribute the cocaine. See id. Proof of the similar transactions tended to establish the offense charged. We find no error. See White v. State, 225 Ga. App. 74, 76 (2) (483 SE2d 329) (1997).

3. In light of our holding in Division 1, we need not address Burkett’s enumeration of error regarding the sufficiency of the evidence introduced at the first trial.

Judgment reversed.

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

Charles H. Weston, District Attorney, Kirby H. Wincey, Jr., Assistant District Attorney, for appellee.