text:
    74011.
    SLAUGHTER v. THE STATE.
    (357 SE2d 124)
   Birdsong, Chief Judge.

The appellant Freddy L. Slaughter was convicted of rape of a 15-year-old girl. He had come to the girl’s home when she was alone, ostensibly to look for his daughter and to use the telephone. When he left, the girl immediately called her mother, who came home and then went to appellant’s home to confront him. He first denied even being near the girl’s home that day, but finally he admitted he had been there. Medical examination of the girl indicated recent intercourse had taken place. He said, however, the girl had offered herself to him and the sex was consensual. On appeal, he enumerates three errors. Held.

Following appellant’s conviction, no appeal was filed in time. New counsel asked for an extension of time for an out-of-time appeal. The trial court granted the extension, on October 28, 1986, provided the defendant could file an out-of-time appeal within ten days of that order, i.e., by Friday, November 7. This appeal was not filed within ten days, but was filed November 10, 1986. Accordingly, this appeal is late and subject to dismissal.

Decided April 16, 1987

Rehearing denied May 5, 1987.

George Campbell Oetter, Jr., for appellant.

Willis B. Sparks III, District Attorney, Thomas J. Matthews, Robin B. Odom, Assistant District Attorneys, for appellee.

However, we have reviewed the evidence and we find that a reasonable trier of fact could rationally have found from that evidence proof of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Boyd v. State, 244 Ga. 130, 132 (259 SE2d 71). The two remaining enumerations of error, complaining of the trial court’s refusal to let the defense counsel read inappropriate law to the jury and the refusal to strike a juror who had met a police officer witness, are completely without merit.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


source: Caselaw Access Project

author: Banke, Presiding Judge. Carley, Judge,

license: Public Domain

text:
    74280.
    WEAVER v. THE STATE
    (357 SE2d 153)
   Banke, Presiding Judge.

The appellant was indicted on two counts of aggravated assault, the first count alleging that he had assaulted the named victim “with a knife, a deadly weapon,” and the second count that he had assaulted her on a previous occasion with an ax. The jury found him not guilty on Count 2 but guilty on Count 1. On appeal, he contends that the trial court erred in failing to charge the jury on simple assault as a lesser included offense and in failing to provide the jury with a verdict form which set fourth the option of finding him guilty of simple assault as a lesser included offense. Held:

Simple assault is not a lesser included offense of an aggravated assault in which a gun or a knife is alleged to have been used as a deadly weapon. See Powell v. State, 140 Ga. App. 36 (230 SE2d 90) (1976); Hightower v. State, 137 Ga. App. 790 (6) (224 SE2d 842) (1976).

Judgment affirmed.

Benham, J., concurs. Carley, J., concurs specially.

Carley, Judge,

concurring specially.

I agree with the majority that appellant’s conviction should be affirmed. However, the majority makes an unequivocal statement that “[s] imple assault is not a lesser included offense of an aggravated assault in which a gun or a knife is alleged to have been used as a deadly weapon.” (Emphasis supplied.) There is no error in this case because the jury was authorized to believe either that the appellant assaulted the victim with a knife or he did not assault her. Thus, the appellant was either guilty as charged or not guilty. My concern is with a case wherein the indictment alleges the defendant assaulted a victim with a gun or a knife and the evidence would authorize the jury to find that the defendant did assault the victim but without a gun or knife or other deadly weapon. It is my opinion that, in such a case, the trial court would be required to charge upon the lesser included offense of simple assault if a written request were submitted. Cf. Bowers v. State, 177 Ga. App. 36 (338 SE2d 457) (1985). However, it would be arguable that the majority’s emphasis in this case upon the allegations of the indictment would permit the trial judge to refuse to give such a written request. Because of this concern, I concur in the judgment only.

Decided May 5, 1987.

Walter Van Heiningen, for appellant.

H. Lamar Cole, District Attorney, James E. Hardy, Assistant District Attorney, for appellee.


author: Banke, Presiding Judge.

text:
    74363.
    GANJIZADEH v. BROWN.
    (357 SE2d 154)
   Banke, Presiding Judge.

The appellee filed what was denominated a habeas corpus petition, seeking to be awarded custody of her minor child. Named as the respondent in the petition was the child’s father, the appellant herein. It appears that the parties were divorced in Arkansas in 1984, at which time custody of the child was awarded to the appellee, but that later, after the appellee had moved with the child to Georgia, the appellant obtained an ex parte order from the Arkansas court purporting to transfer temporary custody of the child to him. The appellee alleged in her habeas corpus petition that she had been arrested in Georgia pursuant to an Arkansas warrant charging her with interference with visitation and that physical custody of the child had been placed in the Jones County Department of Family and Children Services at that time.

The trial court declined to enforce the ex parte Arkansas order transferring custody of the child to the appellant and instead ordered the child returned to the custody of the appellee. The appellant then filed a direct appeal to this court, and we transferred the case to the Supreme Court. The Supreme Court initially dismissed the appeal based on the appellant’s failure to file an application for discretionary appeal pursuant to OCGA § 5-6-35 (a) (2). However, it later vacated its dismissal order and transferred the case back to this court, concluding that the proceeding below “was in substance a proceeding under the Uniform Child Custody Jurisdiction Act, OCGA Title 19, Chapter 9, Article 3, rather than a habeas corpus proceeding.” Held:

Decided May 5, 1987.

Julius A. Powell, Jr., for appellant.

Green Berry Moore III, for appellee.

An application for appeal is required in all appeals “from judgments or orders in . . . child custody, and other domestic relations cases including, but not limited to . . . awarding or refusing to change child custody. . . .” OCGA § 5-6-35 (a) (2). No application for discretionary appeal having been filed in the present case, it follows that the appeal must be dismissed for lack of jurisdiction. Accord Leonard v. Benjamin, 253 Ga. 718 (324 SE2d 185) (1985).

Appeal dismissed.

Carley and Benham, JJ., concur.


text:
    74416.
    DeLAPUENTE v. THE STATE.
    (357 SE2d 155)
   Banke, Presiding Judge.

DeLapuente, a native of Cuba, pled guilty to unlawful possession of cocaine with intent to distribute and theft by receiving stolen property. After he was sentenced, he obtained a new attorney and moved to withdraw his guilty pleas on the ground that he had entered them without being advised of the elements of the offenses. This appeal is from the denial of that motion.

A review of the transcript reveals that the defendant entered his pleas knowingly and voluntarily. Although he did not speak fluent English, he had Spanish-speaking counsel and was provided an interpreter. Through the interpreter, the defendant orally acknowledged that he had committed the offenses, that he had been afforded an opportunity to consult with his attorney, that he understood the maximum punishment which could be imposed on each offense, and that he understood the trial court was not bound by any sentencing recommendation made by the state’s attorney. Moreover, through the aid of his interpreter and prior to entering his plea, he signed an “Arraignment Form” evidencing his understanding of his rights.

Decided May 5, 1987.

Hugh E. Smith, Jr., Thomas R. Moran, for appellant.

Lewis R. Slaton, District Attorney, Paul L. Howard, Jr., H. Allen Moye, Assistant District Attorneys, for appellee.

A defendant may withdraw his plea of guilty as a matter of right before sentence is pronounced. See generally OCGA § 17-7-93. However, “[a]fter the pronouncement of a sentence a ruling on a motion to withdraw a guilty plea is within the sound discretion of the trial court. This discretion will not be disturbed on appeal unless manifestly abused.” Crump v. State, 154 Ga. App. 359, 360 (268 SE2d 411) (1980). We find no such abuse of discretion in this case.

Judgment affirmed.

Carley and Benham, JJ., concur.


author: Sognier, Judge.

text:
    73598.
    OVERSTREET v. THE STATE.
    (357 SE2d 103)
   Sognier, Judge.

Appellant appeals from her conviction of aggravated assault and aggravated battery.

1. Appellant contends the trial court erred by not merging the offenses of which she was found guilty for sentencing purposes. Since appellant also contends the trial court erred by denying her motion for a directed verdict of acquittal as to the offense of aggravated assault with intent to murder, and a recitation of the facts is necessary to dispose of both issues, we will consider these two enumerations of error together.

On the morning of January 21, 1985 appellant, the estranged wife of William Overstreet, called his mother and told her that she (appellant) was coming to Savannah from Alma to see William that afternoon, and if she found him with another woman, appellant would kill them both. Appellant and her two minor sons, Bobby and Johnny Banks, arrived at William Overstreet’s trailer late that afternoon; appellant went to the trailer door and wanted to come in and talk to him. William was in the trailer with Judy Trevino, who had accompanied William when he stopped by his trailer to pick up some tools to fix a stove for Trevino’s sister, as well as to check William’s recorder for business calls. William did not want to talk to appellant and asked her three times to leave. Appellant finally returned to her car and Johnny Banks came to the door and asked William to talk to appellant. Johnny asked William to come to the car and pick up some items. William then walked outside and started for the car. Appellant got out of the car and yelled at Johnny to “shoot him, kill him” or words to that effect. Johnny then shot William in the back and he fell to the ground face down. Johnny then ran up to William and pointed the gun at William’s head; at the same time appellant came up and grabbed or pushed Johnny’s hand away, causing a second shot fired by Johnny to go into the ground. Appellant immediately knelt down by William, told him she loved him and would do anything she could do to help him.

Appellant contends that under the holding in Biddy v. State, 138 Ga. App. 4, 6-7 (3) (225 SE2d 448) (1976) this was one transaction and she should only be sentenced for one offense. We agree. The aggravated battery occurred when Johnny first shot William, resulting in his total paralysis from the waist down. See OCGA § 16-5-24 (a). The State argues that the aggravated assault with intent to murder occurred after William Overstreet was shot and Banks ran up and pointed the gun at William Overstreet’s head. While this may be a valid argument as to Bank’s actions, it is not supported by the evidence insofar as appellant is concerned. The evidence is clear that appellant’s actions in grabbing her son’s hand and preventing him from shooting William Overstreet in the head probably saved his life. The indictment as to aggravated assault alleges that appellant aided, abetted, advised and encouraged her son to shoot William Overstreet. This occurred prior to the aggravated battery, and there is no evidence that after William was shot, appellant advised and encouraged her son to kill William; in fact, appellant prevented her son from doing so. Accordingly, we find that it was error to sentence appellant for both offenses, and the sentence as to aggravated assault must be set aside. We note that as a practical matter this will have no effect on appellant’s sentence, since the court ordered that the sentences be served concurrently.

For the same reasons set forth above, the evidence does not support a finding that appellant committed an assault with intent to murder her husband. The State’s theory of this case was that the assault occurred after the aggravated battery, and the evidence indicates that any intent appellant may have had to kill her husband before he was shot was abandoned immediately thereafter, when she prevented her son from shooting her husband a second time. Accordingly, the evidence was not sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), and it was error to deny appellant’s motion for a directed verdict of acquittal as to the offense of aggravated assault with intent to murder. See Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984).

2. Appellant contends error in denial of her motion for a mistrial on three occasions when appellant alleges the State impermissibly placed appellant’s character in issue. Judy Trevino testified that when Johnny Banks came to the door of William Overstreet’s trailer, Banks said something about William’s “stuff” that was taken or stolen, and “if you’ll come out to the car, I’ll give it to you.” Appellant’s motion for a mistrial on the ground that such testimony placed appellant’s character in issue was denied. Secondly, William Overstreet testified that his wife yelled something before he was shot about “GB or GBI, or something. I think it has to do with the case in Miami.” Appellant’s motion for a mistrial after this remark was also denied. Lastly, appellant contends error in allowing William Overstreet to testify that he married appellant while she was still married to another man, and denying her motion for a mistrial after such testimony.

The first two remarks set forth above did not place appellant’s character in issue. The comment about property being stolen did not indicate that it was stolen by appellant, and the comment about the case in Miami did not indicate that it was a criminal case, or that it involved appellant. Even assuming, for the sake of argument only, that such testimony placed appellant’s character in issue, the State is entitled to inform the jury of all circumstances surrounding commission of the crimes charged, and no error is committed by admitting such evidence as part of the res gestae even though it may incidentally have placed appellant’s character in issue. Chambers v. State, 250 Ga. 856, 858 (2) (302 SE2d 86) (1983). As to the comment referring to appellant’s bigamous marriage to William Overstreet, we agree that the comment placed appellant’s character in issue and had no relevancy to any issue in the case. Nevertheless, under the circumstances here, we find any error in allowing such testimony to be harmless. The evidence of appellant’s guilt of aggravated battery was overwhelming, and it was highly probable that any erroneous admission of such testimony did not contribute to the verdict in this case. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976); Borden v. State, 247 Ga. 477, 481 (4) (277 SE2d 9) (1981).

3. Appellant contends the trial court erred by denying her request for a continuance at the sentence hearing. The request was based on the fact that appellant’s counsel at trial accepted a position in the district attorney’s office after trial on the merits but prior to sentencing. Appellant’s present counsel was then appointed to represent appellant, but stated he had no opportunity to speak with appellant because she was not returned from confinement in Camden County to Chatham County until the day before sentencing. Appellant’s counsel at sentencing stated that he needed more time to subpoena witnesses and adequately present evidence in mitigation.

The record discloses that appellant’s present counsel was appointed by the court on May 22, 1986. The order appointing counsel notified him that appellant was confined and that he was required to contact appellant within 48 hours of his notification of appointment as counsel. The sentencing hearing was held on June 24, 1986, so counsel had more than a month in which to contact appellant and prepare for the sentencing hearing. The lack of preparation of new counsel is not alone a ground for continuance, Cooper v. State, 148 Ga. App. 301 (251 SE2d 157) (1978), and mere shortness of time for preparation by counsel does not ipso facto show a denial of the rights of an accused. Standridge v. State, 158 Ga. App. 482, 484 (2) (280 SE2d 850) (1981). Since counsel had 32 days to prepare for the sentencing hearing we find no error in denial of appellant’s motion for a continuance.

4. Appellant contends the trial court erred by questioning witnesses immediately after the prosecuting attorney completed his direct examination. Appellant made no objection to the court’s questioning witnesses and this court will not consider questions raised for the first time on appeal. Bowen v. State, 173 Ga. App. 361, 362 (4) (326 SE2d 525) (1985).

5. Appellant contends the trial court erred by denying her request for a copy of Johnny Banks’ transcript from Juvenile Court for the purpose of impeaching Banks’ testimony in this case. This enumeration of error has been decided adversely to appellant in Smith v. State, 154 Ga. App. 190, 192 (3) (267 SE2d 826) (1980).

6. At trial Johnny Banks testified that William came out of the trailer like a bull, started hitting appellant and went for a gun that was part of a belt buckle; therefore, Johnny shot William to protect his mother from death or grievous bodily harm. Appellant requested a charge, in substance, that Johnny’s action was justified because he was acting in defense of himself or a third person (appellant) when he shot William, and such action was necessary to prevent death or grievous bodily harm to appellant. The court gave appellant’s requested instruction verbatim. Appellant now contends the trial court erred by failing to instruct the jury in this regard that they must determine if Johnny Banks’ belief that his mother was going to suffer death or grievous bodily harm was reasonable, rather than determining if appellant herself had such a belief. Stated another way, appellant contends the court should have explained that if Banks acted in defense of appellant, the jury must determine if Banks’ belief that his mother was going to suffer death or grievous bodily harm was reasonable. Appellant also argues the trial court should have charged the jury that the State must prove beyond a reasonable doubt that the defendant did not act in self-defense. These arguments are without merit.

Where error is assigned upon a correct principle of law given in charge (as was the case here), and the exception to it is that it does not go further and elaborate in more detail additional principles applicable to the evidence, such is not reversible error in the absence of a written request to charge more specifically. Wren v. State, 70 Ga. App. 510, 512 (28 SE2d 782) (1944); Watson v. State, 181 Ga. App. 512 (352 SE2d 828) (1987). Appellant made no written request to the court to charge more specifically. Hence, there was no error.

Decided April 9, 1987

Rehearing denied May 6, 1987.

Michael G. Schiavone, for appellant.

Spencer Lawton, Jr., District Attorney, John E. Morse, Jr., Assistant District Attorney, for appellee.

Judgment affirmed as to aggravated battery. Judgment reversed as to aggravated assault.

McMurray, P. J., concurs. Beasley, J., concurs in Divisions 2, 3, 4, 6 and in judgment only in Divisions 1 and 5.


author: Benham, Judge.

text:
    73620.
    ATTWELL et al. v. LANE COMPANY.
    (357 SE2d 142)
   Benham, Judge.

Appellee landlord filed a dispossessory proceeding against appellants, claiming they were tenants holding over. On April 18, 1986, the trial court entered an order denying appellants’ motion to dismiss and motion for summary judgment, dismissing appellants’ counterclaim, and awarding appellee a writ of possession instanter. Following the entry of that order, the parties entered into a consent order signed by the trial court and filed on April 18, 1986. In the consent order, the parties agreed that appellee was entitled to possession on May 1, 1986; that appellants would vacate the premises on or before April 30, 1986; that appellants’ counterclaim was dismissed with prejudice; and that appellee was entitled to the funds appellants had paid into the court registry. On May 16, 1986, appellants filed a notice of appeal from the April 18 order that granted appellee a writ of possession instanter. Arguing that the consent order filed April 18 rendered moot the earlier April 18 order, appellee moved for dismissal of appellants’ May 16 notice of appeal. Appellee’s motion was granted on June 27, 1986, and appellants filed the present notice of appeal from that order of the trial court.

Five of the six errors enumerated by appellants relate to the content of the trial court’s initial order of April 18. Any consideration of these enumerations is untimely in this appeal since the notice of appeal that is the basis for this appeal was filed on July 25, 1986, well beyond the 30-day period in which a notice of appeal from the April 18 order had to be filed. See OCGA § 5-6-38 (a). See Bouldin v. Contran Corp., 173 Ga. App. 823 (328 SE2d 424) (1985).

Decided April 23, 1987

Rehearing denied May 6, 1987

Joseph Attwell, pro se.

1. Our initial inquiry is whether the trial court was empowered to dismiss appellants’ notice of appeal. OCGA § 5-6-48 (b) states that no appeal shall be dismissed except where the notice of appeal is not timely; the decision or judgment is not then appealable; or where the questions presented have become moot. The trial court is statutorily authorized to dismiss an appeal where the appellant caused an unreasonable, inexcusable delay in the filing of the transcript or where an unreasonable, inexcusable delay in the transmission of the record to the appellate court was caused by the failure of a party to pay costs in the trial court or file an affidavit of indigency. OCGA § 5-6-48 (c).

Although OCGA § 5-6-48 does not specifically empower a trial court to dismiss an appeal for mootness, the Supreme Court has affirmed the dismissal of a notice of appeal by a trial court for reasons other than those enumerated in OCGA § 5-6-48 (c). In Jones v. Singleton, 253 Ga. 41 (1) (316 SE2d 154) (1984), the Georgia Supreme Court held that the trial court “properly dismissed” several notices of appeal on the ground that no final judgment had been entered and interlocutory appellate procedure had not been followed. We follow the Supreme Court lead of affirming the trial, court’s dismissal of notices of appeal because “the decision or judgment [was] not then appealable” (OCGA § 5-6-48 (b) (2)), and hold that the trial court is empowered to dismiss an appeal “[w]here the questions presented have become moot.” OCGA § 5-6-48 (b) (3).

2. Appellants contend that the trial court erred in dismissing their notice of appeal since they were compelled to sign the consent order due to the dire nature of their circumstances. “ ‘An order entered with the consent of counsel is binding on the client in the absence of fraud, accident, mistake or collusion of counsel. [Cit.]’ . . . ‘In the absence of fraud or mistake, a party cannot complain of a judgment, order, or ruling that his own conduct produced or aided in causing. No fraud or mistake being shown, the appellants cannot complain of the judgment entered by consent and the judgment of the trial court must be affirmed.’ [Cit.]” Hall v. VNB Mtg. Corp., 170 Ga. App. 867 (318 SE2d 674) (1984).

Judgment affirmed.

Banke, P. J., and Carley, J., concur.

Russell S. Thomas, for appellee.


author: Carley, Judge.

text:
    74518.
    WILLIAMS v. NATALIE TOWNHOUSES OF INMAN PARK CONDOMINIUM ASSOCIATION, INC.
    (357 SE2d 156)
   Carley, Judge.

In August of 1986, the trial court entered a non-final order in certain proceedings wherein appellant Williams was a party. Appellant did not first secure a certificate of immediate review and then apply to this court for an interlocutory appeal. Instead, within 30 days of the entry of the August 1986 order, appellant paid costs and filed a direct notice of appeal. Thereafter, the trial court did not enter an order which purported to dismiss appellant’s direct notice of appeal from its August 1986 order. Compare Jones v. Singleton, 253 Ga. 41, 42 (1) (316 SE2d 154) (1984); Attwell v. Lane Co., 182 Ga. App. 813, 814 (1) (357 SE2d 142) (1987). Instead, in February of 1987, the trial court found appellant in contempt of court for failure to obey its August 1986 order. Shortly thereafter, this court found that the August 1986 order was interlocutory and dismissed appellant’s appeal from that order based upon the failure to comply with the requirements of OCGA § 5-6-34 (b). The appeal sub judice is that taken by appellant from the February 1987 order holding him in contempt of court.

1. There is a difference between a trial court’s authority to end the pendency of an appeal and its authority to enforce an order that is the subject of a pending appeal. In certain circumstances, a trial court has jurisdiction to dismiss a pending appeal. Jones v. Singleton, supra. However, as noted above, the trial court did not enter an order which dismissed appellant’s direct notice of appeal from its August 1986 order. Had the trial court done so, appellant’s appeal from that order would no longer have been pending in this court and appellant would have been relegated to pursuit of whatever right he might have had to appeal from the order of dismissal. The first issue for resolution in this case is whether, during the pendency of appellant’s appeal from its August 1986 order, the trial court retained jurisdiction not only to dismiss appellant’s appeal but also to hold appellant in contempt for failing to obey that order.

“[P]ursuant to [OCGA § 5-6-46], a notice of appeal, with payment of costs, serves as a supersedeas of the judgment (unless supersedeas bond be required), and ‘while on appeal, the trial court is without authority to modify such judgment.’ [Cit.]” Cohran v. Carlin, 249 Ga. 510, 512 (291 SE2d 538) (1982). “A supersedeas deprives the trial court of jurisdiction to take further proceedings towards the enforce-merit of the judgment superseded. [Cits.]” Tyree v. Jackson, 226 Ga. 642-643 (177 SE2d 159) (1970). Appellee relies upon Cohran v. Carlin, 160 Ga. App. 762 (288 SE2d 81) (1981), aff’d 249 Ga. 510, supra, as authority for the proposition that, although appellant may have paid costs and filed a notice of appeal from the August 1986 order, there was no supersedeas of the order sufficient to deprive the trial court of jurisdiction to adjudicate appellant in contempt for his failure to obey it. In Cohran, this court did hold that, during the pendency of an appeal in this court, the trial court nevertheless retained jurisdiction to hold that the appellant in the pending appeal was in contempt for failing to obey an order of the trial court. This court based its holding upon the fact “that the attempted appeal . . . , not being from a final judgment nor upon the grant of a petition for interlocutory review, was a nullity.” Cohran v. Carlin, 160 Ga. App., supra at 763. On certiorari, our Supreme Court affirmed the judgment of this court. However, the Supreme Court did not base its affirmance on the ground that the appeal which had been pending at the time of the appellant’s contempt adjudication had been a nullity. The rationale of the Supreme Court’s affirmance was that the contempt order had been entered by the trial court in connection with the main action, whereas the appeal that was pending at the time that the contempt order was entered had been taken in connection with the third-party action. A “notice of appeal supersedes only the judgment appealed; it does not deprive the trial court of jurisdiction as to other matters in the same case not affecting the judgment on appeal. [Cits.] Assuming arguendo that the trial court’s order was a grant of summary judgment in favor of the third party defendants . . . and that [the appellant] therefore had a right to appeal that order, ... we nonetheless hold that the trial court retained jurisdiction of the main action . . . and could proceed to enter orders as necessary and appropriate in that matter; i.e., the trial court retained jurisdiction to compel discovery in the pending action and to adjudicate persons who violate its discovery orders to be in contempt.” Cohran v. Carlin, 249 Ga., supra at 512.

Accordingly, Cohran is clearly distinguishable on its facts from the case sub judice. Here, unlike Cohran, appellant’s adjudication of contempt is not the result of his subsequent failure to obey a collateral order in the proceedings that were still pending in the trial court after August of 1986. The finding of appellant’s contempt is based upon his failure to obey the very order of August 1986, from which order he had attempted to bring an appeal to this court and which appeal purported then to be pending in this court. We find no existing authority to support a trial court’s retention of jurisdiction to enter an order of contempt under these circumstances.

That a trial court retains jurisdiction to adjudicate one who is an appellant as to a pending appeal in contempt of court for failure to obey the very order that is then on appeal, is undoubtedly a holding which could be rationalized by reliance upon the notion of so-called “judicial economy.” However, the law is otherwise clear that a trial court has no jurisdiction to undertake contempt proceedings to enforce a judgment that has been superseded by the payment of costs and the filing of a notice of appeal. See Tyree v. Jackson, supra. Compare Housing Auth. of Atlanta v. Geter, 252 Ga. 196 (312 SE2d 309) (1984) (notice of appeal does not oust trial court of jurisdiction to grant a timely motion for new trial). No viable rationale exists to support the creation of an exception to this long-recognized principle, which exception would be applicable to such pending appeals as may be subject to subsequent dismissal by the appellate court for lack of jurisdiction. As long as an appeal remains pending in an appellate court, the existence or absence of appellate jurisdiction over that case must ultimately be determined by the appellate court itself. Compare Jones v. Singleton, supra; Attwell v. Lane Co., supra. In some circumstances, a trial court whose order had otherwise been superseded may be authorized to dismiss the pending appeal but a trial court is never authorized to enforce that superseded order by holding that the appellant in the pending appeal is in contempt for failing to obey it.

While the appeal filed by appellant in this case was in fact subsequently dismissed by this court for lack of jurisdiction, to uphold appellant’s adjudication of contempt would require this court to sanction a procedure whereby every appellee as to every pending appeal, rather than raising his assertion of a lack of appellate jurisdiction in the form of a motion to dismiss, could always secure a hearing in the trial court, and on occasion secure an actual adjudication, as to the appellant’s contempt for failing to obey an order that is then on appeal. However, not every assertion of a lack of appellate jurisdiction over a pending appeal is viable and, so long as an appeal remains pending, every such assertion must always remain non-viable until such time as the appellate court has itself finally addressed the issue. Accordingly, the contempt adjudication in this case can be affirmed only if this court abdicates its jurisdiction to determine its own jurisdiction over pending appeals, which abdication would thereby subject the appellant in any given pending appeal to the possibility that he may have to defend not against a mere motion to dismiss his pending appeal, but also to defend against the possibility of an adjudication of contempt by the trial court. Jurisdiction to determine this court’s jurisdiction must remain in this court so long as the appeal in question is pending.

The payment of costs and filing of a notice of appeal are sufficient to confer upon this court the jurisdiction to determine its own jurisdiction over a pending appeal and to oust the trial court of any jurisdiction to address that issue other than by way of a motion to dismiss. Our dismissal of appellant’s appeal subsequent to his adjudication of contempt does not have the effect of validating the contempt order nunc pro tunc. The trial court had no jurisdiction to hold appellant in contempt of its August 1986 order and the judgment of contempt is void.

Decided May 5, 1987.

Robert H. McKnight, Jr., for appellant.

Martin L. Ellin, for appellee.

2. Remaining enumerations of error are moot.

Judgment reversed.

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


text:
    73959.
    BRANCH v. THE STATE.
    (357 SE2d 136)
   Sognier, Judge.

Branch appeals his conviction of driving under the influence of alcohol, speeding and having no proof of insurance.

1. Appellant contends the evidence was not sufficient to support the verdict of guilty of driving under the influence of alcohol and having no proof of insurance.

The evidence disclosed that when appellant was stopped for speeding he had a strong odor of alcohol on him and was staggering, and could not produce proof of insurance. Appellant was read the implied consent warnings at the scene and agreed to take a State administered test to determine his alcohol content. At that time he did not request an independent test. At the White County Sheriff’s Department appellant was again read the implied consent warnings and agreed to take an intoximeter test. When he was thereafter advised that the test showed an alcohol content of .13 grams of alcohol per cc of blood, appellant stated that he wanted an independent blood test. However, when he learned that the test would cost $50 appellant stated he was not going to pay for the independent test. He then signed a written waiver of his right to an independent test, which was introduced into evidence.

Appellant testified that the implied consent warnings were not read to him at the scene of his arrest or at the sheriff’s office. He also testified that he had the money to pay for such a test, but two or three deputies told appellant he did not want the test because it cost too much. Based on this testimony, appellant contends it was error to deny his motion to suppress the results of the intoximeter test (alleged as error in a separate enumeration), because he was denied his right to an independent blood test. Appellant argues that without such evidence, his conviction of driving under the influence of alcohol cannot be sustained. We do not agree.

In a hearing on a motion to suppress the judge sits as a trier of fact; credibility and weight, and the resolution of conflicts within the testimony of a witness, are matters to be determined by the judge. State v. Betsill, 144 Ga. App. 267, 268 (2) (240 SE2d 781) (1977). “In the absence of evidence of record demanding a finding contrary to the judge’s determination, this court will not reverse the ruling [denying] a motion to suppress.” Id. See also Burnette v. State, 168 Ga. App. 578, 579 (1) (309 SE2d 875) (1983). The evidence does not demand a finding contrary to the judge’s determination here. Hence, it was not error to deny appellant’s motion to suppress evidence of the results of the intoximeter test. It follows that the evidence is sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Hence, the court did not err by denying appellant’s motion for a directed verdict of acquittal, which he alleges as error in a separate enumeration. Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984).

In regard to appellant’s conviction of having no proof of insurance, he argues that his proof of insurance was in the glove compartment and he could not find it because it was dark. However, the arresting officer testified that she loaned her flashlight to appellant and after searching his glove compartment, he could not produce proof of insurance. Since appellant could not produce proof of insurance, his conviction of that offense was supported by evidence sufficient to meet the standard of proof required by Jackson v. Virginia, supra.

2. Appellant contends the trial court erred by admitting opinion testimony of a State witness without a proper foundation for such testimony. Trooper Pickett testified that based on her nine years experience as a State trooper and having observed innumerable people under the influence of alcohol, appellant’s condition made it less safe for him to drive than if he had not been under the influence of alcohol. Such testimony is admissible. Harris v. State, 97 Ga. App. 495, 497 (3) (103 SE2d 443) (1958); Griggs v. State, 167 Ga. App. 581, 582 (1) (307 SE2d 75) (1983). Accordingly, appellant’s contention is without merit.

3. Appellant contends the trial court erred by basing its sentence on appellant’s trial strategy, thereby showing a lack of impartiality, bias and prejudice against appellant resulting in a more severe punishment than would have been imposed on other defendants.

This was appellant’s second conviction for driving under the influence of alcohol and his fourth conviction for speeding. He was sentenced to 12 months confinement, four to serve and eight on probation, and a $1,000 fine for driving under the influence of alcohol; 12 months confinement, probated, for speeding; and a $25 fine for failure to have proof of insurance. These sentences are within the maximum sentences authorized for the offenses charged. OCGA §§ 40-6-391 (c) (2); 17-10-3; and 33-34-10 (f) (1). “This court will not review for legal error any sentence which is within the statutory limits — as in the instant case.” Tommie v. State, 158 Ga. App. 216 (1) (279 SE2d 510) (1981); Brown v. State, 179 Ga. App. 182, 183 (2) (345 SE2d 901) (1986).

Decided April 20, 1987

Rehearing denied May 6, 1987

Harmon T. Smith, Jr., for appellant.

Andrew Fuller, District Attorney, for appellee.

Judgment affirmed.

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


author: Beasley, Judge.

text:
    74204.
    BRIGHT et al. v. KNECHT.
    (357 SE2d 159)
   Beasley, Judge.

Carl Knecht, widower of Naomi Knecht, filed an application for a year’s support out of her estate. Appraisers were appointed and they set aside Naomi’s home with a net value of $22,000 as Carl’s year’s support. Naomi’s children and heirs filed a caveat to the application and sought to set aside the appraisers’ award. The probate court judge overruled the caveat and appeal was taken to the superior court.

Applicant moved for summary judgment in the superior court, based upon the probate court record, two affidavits and applicant’s deposition. Caveators filed an affidavit of one of the children in opposition to the motion. The trial court granted applicant’s motion for summary judgment and this appeal by caveators followed.

An appeal of an application for a year’s support award by a probate court is a de novo proceeding in the superior court. See OCGA §§ 5-3-2 and 5-3-29. As such, “the appeal is subject to the established procedures for civil actions . . . , thus entitling a party to invoke summary judgment.” Woodall v. First Nat. Bank of Columbus, 118 Ga. App. 440 (1) (164 SE2d 361) (1968). Accord Savannah Valley &c. Assn. v. Cheek, 161 Ga. App. 365, 367 (1) (288 SE2d 633) (1982). See Taylor v. Donaldson, 227 Ga. 496 (181 SE2d 340) (1971).

OCGA § 53-5-2 (prior to its amendment effective July 1, 1986) provided: “It shall be the duty of the appraisers ... to set apart and assign to the spouse and children ... a sufficiency from the estate for their support and maintenance for the space of 12 months ... to be estimated according to the circumstances and standing of the family prior to the death of the testator or intestate and keeping in view also the solvency of the estate.”

Decided May 6, 1987.

Keith W. Benning, for appellants.

Caveators contend the award was excessive and that applicant failed to establish the circumstances and standing of the family at the time of Naomi’s death. It is urged that the proof submitted to the trial judge did not justify an award of $22,000.

This argument overlooks a fundamental concept with regard to a year’s support application. Where excessiveness of the award is the sole issue involved, the return of the appraisers is prima facie correct, the burden is upon the party disputing the return to show otherwise, and in the absence of evidence tending to show the circumstances and standing of the family before the testator’s death or as to solvency of the estate, a verdict sustaining the return is demanded as a matter of law. Wilson v. Wilson, 54 Ga. App. 770 (1) (189 SE 71) (1936); Rogers v. Woods, 66 Ga. App. 195, 196 (4) (17 SE2d 283) (1941); Rawlins v. Rawlins, 150 Ga. App. 534, 536 (2) (258 SE2d 187) (1979); Lee v. English & Co., 107 Ga. 152 (33 SE 39) (1899); Smith v. Smith, 115 Ga. 692 (2) (42 SE 72) (1902).

With the appraiser’s return, applicant had established a prima facie case. The question was not whether he introduced other sufficient proof to establish that the return was not excessive, but whether caveators introduced any evidence that the award was excessive.

Once the moving party for summary judgment has carried its burden of making out a prima facie case, the burden shifts and the opposite party must come forward with rebuttal evidence or suffer judgment against him. Meade v. Heimanson, 239 Ga. 177, 180 (236 SE2d 357) (1977); Harrison v. Massey-Ferguson Credit Corp., 175 Ga. App. 752, 753 (1) (334 SE2d 352) (1985).

The sole proof offered was an affidavit by one of the caveators. He affirmed that Naomi’s sole income for several years prior to her death was a monthly social security check for $150, and that the only funds Naomi received from applicant were $550 per month which she used to provide both of them with the necessities of life, including food, clothing and shelter.

This proof failed to raise an issue regarding the circumstances and standing of the family with respect to standard of living or regarding the solvency of the estate. Thus, summary judgment was properly granted to applicant. See Adkins v. Adkins, 168 Ga. App. 151 (2) (308 SE2d 432) (1983).

Judgment affirmed.

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

George R. Rushing, for appellee.


text:
    74213.
    JOHNSON v. THE STATE.
    (357 SE2d 161)
   Beasley, Judge.

The two claimed errors relate to the admission of evidence which it is contended was irrelevant to any issue and placed defendant’s character in issue impermissibly. The same arguments are advanced to support both enumerated errors.

Defendant was tried on two counts of aggravated assault (OCGA § 16-5-21) and two counts of possession of a firearm during commission of a crime (OCGA § 16-11-106). He was convicted of one of each, and his motion for new trial was denied. His defense was the justification of self-defense.

Both crimes emanated from the shooting of the owner when defendant returned to the Easy Street bar with a shotgun after he was forcibly made to leave by the bar owner and a person assisting him, after defendant repeatedly annoyed two female patrons. Defendant had been drinking and causing trouble at another bar just previous to coming to Easy Street and had been put out of that first bar. The state offered evidence of the first incident to show a continuing course of conduct, and defendant objected on the grounds stated above.

We have reviewed the evidence and conclude that it was not inadmissible as a matter of law. At issue was defendant’s intent when he shot the bar owner. The condition of his mind was manifested by his behavior leading up to the shooting. The course of conduct which he had set in motion earlier in the evening demonstrated a gradual escalation of aggressiveness, anger, and determined frustration. His actions immediately prior to those which culminated in the shooting tend to illuminate the dark recesses of his mind, which the jury was bound to probe to discover whether he shot Mr. Bagley with criminal intent or in self-defense. The degree of intoxication and the attitude towards others were explained in part by what had transpired before he reached Easy Street.

Evidence showing intent, motive, plan, scheme and bent of mind is admissible although such evidence may also place in issue the character of the defendant. Davis v. State, 233 Ga. 638 (212 SE2d 814) (1975); Rini v. State, 236 Ga. 715 (225 SE2d 234) (1976). “The conduct of the accused, before, at the time of, and immediately following the [crime] is relevant, and any evidence showing this conduct is admissible. [Cits.]” Lewis v. State, 196 Ga. 755, 759 (27 SE2d 659) (1943). The conduct at the first bar was not remote but was instead logically connected. This is not an instance of dissimilar or unconnected prior offenses, such as defendant would have us conclude, citing Wimberly v. State, 180 Ga. App. 148 (1) (348 SE2d 692) (1986).

Decided May 6, 1987.

Barry V. Smith, for appellant.

Stephen F. Lanier, District Attorney, H. Harold Chambers, Assistant District Attorney, for appellee.

The second argument against admissibility is that the state did not give advance notice of “similar transactions or occurrences” pursuant to USCR 31 and there was no court order allowing such evidence. Even if the rule applies to evidence of the. nature here targeted, see Presley v. State, 177 Ga. App. 611, 613 (2) (340 SE2d 253) (1986), this objection was not raised below and thus will not be ruled on. Morris v. State, 179 Ga. App. 228, 229 (3) (345 SE2d 686) (1986).

Judgment affirmed.

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


text:
    73821.
    NATIONWIDE GENERAL INSURANCE COMPANY v. PARNHAM.
    (357 SE2d 139)
   Beasley, Judge.

We granted an interlocutory appeal to Nationwide, the uninsured/underinsured motorist carrier, from the denial of its motion for summary judgment in a suit for personal injuries which Parnham, its insured, brought jointly against the insurance company, the operator of a taxi allegedly involved in Parnham’s injury, and Safari Cab Company, the taxi owner.

Texas resident Parnham was injured when his right knee was pinned between the Safari taxi and another taxi at the Atlanta International Airport, at a time when the Safari taxi was self-insured with limits of liability of $10,000 per person. Also at the time, Parnham was the named insured in a Texas Personal Auto Policy issued in Texas by Nationwide which policy included uninsured/underinsured motorist coverage of $100,000 per person. Parnham served Nationwide for benefits of the Texas policy’s uninsured/underinsured coverage over and above the $10,000 per person limit of Safari’s self-insurance pursuant to OCGA § 33-7-11 (d). Nationwide elected to participate directly in the suit in its own name to contest its liability.

It moved for summary judgment on the basis that the taxi was self-insured and that the policy specifically excluded from the definition of “uninsured motor vehicle” any vehicle or equipment “owned or operated by a self-insurer under any applicable motor vehicle law.” Nationwide maintained that the language as interpreted under Texas law mandated that Parnham’s coverage could not apply because the taxi was self-insured so that as a matter of law coverage did not arise.

The insurer argues error in failing to uphold the exclusion in the Texas policy. Parnham, on the other hand, contends that the exclusion is invalid as violative of the purpose of the Texas law governing uninsured/underinsured motorist coverage in that it is contrary to its intent. It is his further position that for this state to uphold the exclusion would amount to a denial of equal protection of the laws under the federal constitution, i.e., treating differently those injured by self-insured motorists as opposed to those injured by motorists with no insurance or minimal coverage through an insurance company. Additionally, he urges that it is against the public policy of either Texas or Georgia to allow him to go “uncompensated” under the facts of this case.

The final argument is that the exclusion conflicts with another section of the policy dealing with out-of-state coverage which would permit him to recover the higher limit of liability under OCGA § 33-7-11. We examine these bases for upholding the denial of summary judgment.

1. Nationwide’s potential liability is one of law for the court. While it is true that “the statutory/judicial scheme which has evolved requires a determination of the uninsured motorist’s tort liability before a UMC can be held accountable on its contractual obligation to its insured,” Smith v. Phillips, 172 Ga. App. 459, 460 (1) (323 SE2d 669) (1984), if there is no possibility of coverage under the language of the policy and if the exclusion is valid, the insurer has no further role as a party in the suit.

2. Both the insurer and Parnham agree that Texas law should be applied to the insurance contract in this case. The trial court’s order is silent on what law it applied in reaching the determination to deny summary judgment to Nationwide. However, we agree that Texas law is properly applied in evaluating the policy exclusion inasmuch as at the time of alleged injury Parnham was a Texas resident, the policy was issued and delivered in Texas, and there was nothing in the policy to indicate that it was intended to be construed as a Georgia contract. Tennessee Farmers Mut. Ins. Co. v. Wheeler, 178 Ga. App. 73, 74 (1) (341 SE2d 898) (1986).

3. The claimant maintains that the policy exclusion for self-insured vehicles or equipment contravenes the purpose and intent of the Texas uninsured/underinsured motorist law, yet no supportive authority is offered for such proposition. In fact, Parnham quite accurately notes that the purpose of this law, V.A.T.S. Insurance Code, Art. 5.06-1, was not to protect insureds from all negligence of uninsured motorists but rather to protect conscientious and thoughtful motorists against losses caused by negligent, financially irresponsible motorists. This is confirmed in Francis v. Intl. Svc. Ins. Co., 533 SW2d 408, aff’d 546 SW2d 57 (1976). A self-insured who complies with the self-insurance law, OCGA §§ 33-34-2 (12) and 40-9-101 (a), is not financially irresponsible but rather is meeting the state’s required minimum. The self-insurer does not become financially irresponsible just because it chooses the state-permitted option not to insure above the minimum.

Nor can it be said that to uphold the policy exclusion is to deny equal protection under the federal constitution to those injured by self-insureds, because this is not a situation of uneven or unequal application of the Texas statutory scheme of uninsured/underinsured motorist coverage, but rather the enforcement of a contractual provision not shown to be offensive to Texas law.

4. The issue then becomes whether the exclusionary provision of the Texas insurance policy, not shown to be unlawful in Texas, will be enforced in our state courts.

Pretermitting the question of whether such an exclusion in a Georgia insurance policy would be enforceable under our law governing coverage of claims against uninsured motorists, OCGA § 33-7-11, and assuming arguendo that such an exclusion would not be favored under our law for the reasons Parnham suggests, without more this Court would not be required to find the foreign contract unenforceable.

It is our policy to enforce contracts made and performed in another state unless such state’s laws are contrary to our public policy. OCGA § 1-3-9; Terry v. Mays, 161 Ga. App. 328 (291 SE2d 44) (1982).

Furthermore, “ ‘ “[a] contract should not be held unenforceable as being in contravention of public policy except in cases free from substantial doubt where the prejudice to the public interest clearly appears.” ’ [Cit.] . . . ‘Enforcement of a contract or a contract provision which is valid by the law governing the contract will not be denied on the ground of public policy, unless a “strong case” for such action is presented; mere dissimilarity of law is not sufficient for application of the public policy doctrine. A contract is not necessarily contrary to the public policy of a state merely because it could not validly have been made there, notwithstanding the making of such contracts in the place of the forum is expressly prohibited by statute.’ [Cits.]” Id. at 328 (1).

In the circumstances of this case, where a Texas resident is claiming coverage under a Texas insurance policy and where the self-insured is maintaining the minimum coverage required under our law, we discern no prejudice to the public interest in Georgia by enforcing the exclusionary provision in the Texas insurance policy. Therefore, the trial court erred in refusing to enforce the exclusion and in thus failing to grant summary judgment to the insurer.

Decided April 22, 1987

Rehearing denied May 7, 1987

Philip M. Casto, for appellant.

Irwin M. Ellerin, Sidney L. Moore, Jr., for appellee.

Judgment reversed.

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


author: Deen, Presiding Judge.

text:
    74378.
    JACKSON v. THE STATE.
    (357 SE2d 143)
    Decided April 24, 1987
    Rehearing denied May 7, 1987.

      Joseph M. Todd, for appellant.

      John C. Carbo III, Solicitor, for appellee.
   Deen, Presiding Judge.

The appellant, Felix Jackson, was convicted of simple battery. On appeal he asserts only the general grounds.

On April 8, 1986, Jackson went to the residence of his ex-wife. It is undisputed that he and she engaged in an argument in her bedroom, during which Jackson struck his ex-wife. He claimed that he struck her once in self-defense, after she had slapped him several times, but the ex-wife claimed that Jackson struck her without such provocation. In any event, the fight was stopped in the early rounds when their daughter appeared on the scene and shot at her father three times with a .22 caliber pistol, hitting him once in the abdomen. Wounded by this filial hostility, Jackson then left. Held:

Credibility, of course, is an issue decided by the trier of fact. Viewing the evidence in the light most favorable to the verdict, i.e., preferring the testimony of the appellant’s ex-wife to that of the appellant, the evidence certainly authorized a rational trier of fact to find Jackson guilty beyond a reasonable doubt of simple battery. Jackson v. State, 178 Ga. App. 378 (343 SE2d 122) (1986).

Judgment affirmed.

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


author: Pope, Judge.

text:
    74086.
    RICHARDSON v. THE STATE.
    (357 SE2d 162)
   Pope, Judge.

Defendant Timothy Wayne Richardson brings this appeal from his conviction of 7 counts of burglary. Held:

1. The State has made a motion to dismiss this appeal based on what defendant contends was a “clerical error” in filing his enumerations of error. (It appears that the enumerations originally filed by defendant pertained to another case.) In response to the State’s motion, defendant filed amended enumerations of error and sought to withdraw his original enumerations. Defendant’s brief, which was filed contemporaneously with his original enumerations, addressed those matters that were later raised by way of defendant’s amended enumerations.

Under these facts, and in keeping with our policy to make every effort to enter a decision on the merits in a criminal case, the State’s motion to dismiss is denied. See DeBroux v. State, 176 Ga. App. 81 (335 SE2d 170) (1985); OCGA § 5-6-48.

2. In his amended enumerations, defendant first enumerates as error the trial court’s denial of his motion in limine to suppress his signed confession (which was also tape recorded), which he made shortly before his arrest. In support of this enumeration, defendant relies on the case of State v. Harris, 256 Ga. 24 (343 SE2d 483) (1986), in which the Supreme Court of this State upheld the trial court’s finding that defendant’s statement was not voluntarily given. In support of his argument that Harris is controlling in the case sub judice, defendant points to testimony elicited during the JacksonDenno hearing that he was kept at police headquarters approximately four hours before he gave his confession and that he considered himself under arrest the entire time he was there. Defendant also points to Officer Carter’s testimony that he lacked probable cause to arrest defendant at the time defendant was asked to come to the station for questioning. However, it was also established that defendant came to the station voluntarily when Officer Carter requested that he do so; that he was never told that he was under arrest until after he signed his confession; that Officer Carter questioned defendant and defendant’s wife and defendant’s parents during the four-hour period before defendant’s arrest; that Officer Carter gave Miranda warnings not only to defendant but also to defendant’s wife; and that defendant was not actually confined until after he gave his statement. The record also shows defendant had voluntarily accompanied Officer Carter to the station for questioning some 3 months prior to the date on which he gave his confession and had been released following questioning on that date.

Central to the holding in Harris was the finding that the defendant in Harris was seized without probable cause and transported to jail. We agree with the trial court that the facts in the case sub judice fail to show a similar impermissible seizure. “In the absence of evidence that the court’s findings were clearly erroneous or are a clear abuse of its discretion, its findings at a Jackson-Denno hearing will not be disturbed on appeal. Sanborn v. State, 251 Ga. 169, 170 (304 SE2d 377) [(1983)]. The court’s findings are not clearly erroneous and we have found no abuse of its discretion.” Jackson v. State, 180 Ga. App. 774, 777 (350 SE2d 484) (1986).

Decided May 7, 1987.

Dan T. Pressley, Sr., for appellant.

Michael H. Crawford, District Attorney, Leonard M. Geldon, Assistant District Attorney, for appellee.

3. In a related enumeration defendant argues that the trial court erred in admitting his confession because it was obtained by threats and coercion. The record shows that during the Jackson-Denno hearing to determine the voluntariness of defendant’s confession it was established that defendant was fully advised of his rights, that he signed a waiver of rights form, that he understood his rights and that he was not under the influence of drugs or alcohol. Also during the hearing, however, defendant testified that Officer Carter threatened to incarcerate his wife and take away his child, and that he signed the confession because of these threats. Defendant admitted Officer Carter never made these threats to him, but that his wife told him about the threats before he signed his confession. Defendant’s wife testified that she did not know if she told the defendant about the threats before or after he signed the confession. Officer Carter denied that any threats were made to defendant or his family.

“ ‘In deciding the admissibility of a statement during a JacksonDenno hearing, the trial court “must consider the totality of the circumstances” and must determine the admissibility of the statement under the “preponderance of the evidence” standard. Unless the factual and credibility findings of the trial court are “clearly erroneous,” the trial court’s decision on admissibility will be upheld on appeal. (Cit.)’ Fowler v. State, 246 Ga. 256, 258 (271 SE2d 168) (1980).” Howard v. State, 180 Ga. App. 817 (1) (350 SE2d 825) (1986); Cunningham v. State, 255 Ga. 727 (2) (342 SE2d 299) (1986); Pierce v. State, 180 Ga. App. 847 (1) (350 SE2d 781) (1986). Under the circumstances of this case, we find no error in the trial court’s conclusion concerning the admissibility of defendant’s confession.

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.


text:
    73701.
    HENDERSON v. MRS. SMITH’S FROZEN FOODS et al.
    (357 SE2d 271)
   Beasley, Judge.

This appeal follows the grant of discretionary review of the trial court’s order remanding this workers’ compensation case to the full board for further consideration because the court was uncertain whether the board considered all the evidence.

1. Although not raised, the first matter to be determined is our jurisdiction. Westbrook v. James, 89 Ga. App. 234 (1) (79 SE2d 19) (1953); Evans v. Davey, 154 Ga. App. 269, 270 (267 SE2d 875) (1980). Since the lower court order instigated further proceedings before the board it was not final. This raises the issue of whether the applicant should have sought interlocutory review under OCGA § 5-6-34 rather than discretionary review under OCGA § 5-6-35. In our view the Supreme Court of Georgia has furnished a definitive answer to this question in C & S Nat. Bank v. Rayle, 246 Ga. 727, 730 (273 SE2d 139) (1980), by holding: “The 1979 Act, Code Ann. § 6-701.1 [now OCGA § 5-6-35], applies to all appeals specified in section (a) (1) or (2), whether the judgment be final, interlocutory, or summary. That Act is to be interpreted reasonably to accomplish the General Assembly’s intended purpose.”

Appellant properly sought discretionary review of the lower court’s order.

2. As to the merits, the facts are not complex. Claimant injured her back and was placed on total disability. On a change of condition hearing the ALJ found she was impeached and not worthy of belief because she denied being able to work. The employer had used an investigator who reported she altered pants for him and baked him a cake and told him she was in the business of alterations and cakes. Thus the ALJ found her to be capable of returning to work and suspended her disability payments. On appeal the full board by a split decision found that the claimant did not regularly work and there was no change in condition. The board also found the employer’s actions “reprehensible” and in presenting this case it was “most unreasonable” so that the board imposed attorney fees in the amount of $1,000.

(a) The board’s failure to mention certain evidence contrary to its findings of fact, which evidence the superior court apparently considered persuasive if not conclusive, led the superior court to conclude that it was uncertain, as a reviewing court, whether all the evidence was duly considered by the board. We agree with appellant’s assertion that this was error as not in keeping with the superior court’s function as set out in OCGA § 34-9-105 (c).

There is authority for remanding a case to the board based upon uncertainty that all the evidence had been considered. OCGA § 34-9-105 (d); American Mut. &c. Ins. Co. v. Williams, 133 Ga. App. 257, 259 (211 SE2d 193) (1974); West-Point Pepperell v. Payne, 151 Ga. App. 541 (260 SE2d 412) (1979). Nevertheless, the mere failure to refer to all the evidence in the findings of fact does not establish that the board did not consider the evidence in its review of the matter. Union Carbide Corp. v. Coffman, 158 Ga. App. 360 (1) (280 SE2d 140) (1981); St. Regis Flexible Packaging Corp. v. Helm, 172 Ga. App. 251, 254 (2) (322 SE2d 549) (1984).

“The findings and conclusions of the full board supersede those of the administrative law judge [Cit.], and we are required under the ‘any evidence’ rule to uphold those findings and conclusions . . .” Carter v. Kan. City Fire &c. Ins. Co., 138 Ga. App. 601, 604 (226 SE2d 755) (1976); Poulnot v. Dundee Mills Corp., 173 Ga. App. 799 (328 SE2d 228) (1985). The ALJ’s award detailed the facts upon which the conclusions were based. Reaching a contrary result, the board set forth specifically the facts upon which it relied and predicated its findings and conclusions “upon de novo consideration of all the evidence,” an express statement in its order. Its order further demonstrates, by its content, that this is so. There is no basis for concluding as did the superior court that, as a matter of law, the board failed to fulfill its duty and considered only some of the evidence in its decision-making process. See OCGA § 34-9-103 (a).

In view of these circumstances it is inconceivable that the evidence questioned by the court was not considered, although rejected, by the board. Because there is no requirement that specific reference be made to all the evidence, the trial court erred in remanding based on the omission of recitation of certain evidence. Cooper v. Simmons Co., 154 Ga. App. 260 (1) (267 SE2d 866) (1980); Rothell v. Waffle House, 171 Ga. App. 199 (319 SE2d 73) (1984). The order of the board was adequate to meet the legal requirements of OCGA § 34-9-103 (a).

(b) The second issue presented concerns the remand because the evidence failed to show that the employer acted without reasonable grounds in bringing the proceedings. Assessment of attorney fees based upon whether those were reasonable grounds ordinarily is a factual. issue. American Motorist v. Corbett, 144 Ga. App. 845, 846 (3) (242 SE2d 748) (1978). “However, attorney fees may not be awarded where the matter was closely contested on reasonable grounds.” Ga.-Pacific Corp. v. Sanders, 171 Ga. App. 799, 804 (3) (320 SE2d 850) (1984). Accord Carroll v. Dan River Mills, 169 Ga. App. 558, 561 (313 SE2d 741) (1984). Here there is some evidence to support the board’s award of attorney fees, and we do not believe that the record supports the necessity of a remand to the board on this issue as a matter of law.

Judgment reversed.

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

Decided April 22, 1987

Rehearing denied May 8, 1987

George E. Mundy, for appellant.

H. Durance Lowendick, for appellees.


text:
    73736.
    ATWOOD v. SIPPLE et al.
    (357 SE2d 273)
   Beasley, Judge.

Plaintiffs Sipple and Gibson sued Atwood and others for breach of contract, fraud, and conversion arising out of a joint venture agreement which basically provided that 119 saltwater damaged British Leyland automobiles were to be purchased from British Leyland and then shipped to Guatemala for sale. Because of the damage, the cars could not be sold in the United States. Atwood, a retired Army officer, was at that time living in Guatemala and claimed to be involved in the import/export business there. Although a substantial shipment was sent to Guatemala, for a myriad of reasons, the business was unsuccessful and the joint venture was terminated by plaintiffs in March 1980.

The complaint was filed in April 1980, naming only two Guatemalan companies and one individual, all of whom were involved in the Guatemalan end of the enterprise. In September 1981 after a default judgment was entered against the Guatemalan individual, the complaint was amended to add Atwood as a defendant. Two years later, plaintiffs and defendant Atwood consented to an order referring the matter to an auditor pursuant to Chapter 7 of Title 9, OCGA. The auditor heard the matter in June 1984, and plaintiffs filed their 12-page “Proposed Findings of Fact and Conclusions of Law” on August 30. Defendant Atwood served but did not file his “Response to Plaintiffs’ Proposed Findings” on plaintiffs’ counsel on October 27. Defendant did not submit any proposed findings of fact and conclusions of law. The auditor’s 31-page report, finding for plaintiffs, was filed on September 23, 1985. Three days later, defendant filed the “Response to Plaintiffs’ Proposed Findings” with the court.

After two months passed, defendant filed a “Motion to Withdraw Transcript for Duplication And to Allow Extension of Time to File Amendment to Exceptions with Memorandum.” In this document, defendant contended that his Response to Plaintiffs’ Proposed Findings of Fact and Conclusions of Law “contained the substance of the exceptions this plaintiff has to the Report of the Auditor . . it was also indicated, in requesting the time extension, that defendant could not afford to purchase a copy of the transcript before the auditor’s report was filed, and that thereafter “counsel for this defendant became incapacitated by reason of a medical diagnosis that required . . . tests in hospitals . . . that continued through the week of November 18, 1985. . . .” Defendant’s motion was denied on April 8, 1986.

Judgment was entered by the court for plaintiffs on June 17, 1986, the court holding that no timely exceptions had been filed by defendant to the auditor’s report. From this judgment, defendant appeals.

1. Defendant contends, based on OCGA § 9-7-14 (c), that the trial court erred in not treating his Response to Plaintiffs’ Proposed Findings of Facts and Conclusions of Law as the exceptions to the auditor’s report. A review of the statutory scheme concerning auditor’s reports, their use and purpose, however, dispels this argument.

Chapter 7 of Title 9, OCGA covers auditor’s reports and the procedures involved in using an auditor. The parties agreed to submit the factual investigation to an auditor, and a lengthy hearing was conducted. The code then requires that “the auditor shall file the evidence and a report in which he shall clearly and separately state all rulings made by him, classify and state his findings, and report his conclusions upon the law and facts.” OCGA § 9-7-8. A party having objection of law or fact to the report of the auditor must file his exceptions to the report within “20 days after the report is filed and notice is given to the parties . . .” OCGA § 9-7-14 (a). While a trial judge may grant an extension of time for the filing of exceptions, any such application for an extension must be made before the initial 20 days expire. OCGA § 9-7-14 (b); Collins v. Lyon, Lyon & Co., 222 Ga. 6 (1) (148 SE2d 428) (1966).

While defendant is correct that grounds for exceptions are no longer required to be complete in themselves, OCGA § 9-7-14 (c), he errs in his assertion that the liberal notice pleading concept of the Civil Practice Act overrides the specific requirements of the auditor’s statute. See Beck v. Cobb County, 180 Ga. App. 808, 812 (350 SE2d 818) (1986); Wise &c. Assoc. v. Rosser White &c. Inc., 146 Ga. App. 789, 794 (5c) (247 SE2d 479) (1978). Subsection (c), while not requiring the grounds for objection to be complete in themselves, goes on: “It shall be sufficient, for purposes of this Code section, if the exceptions point out by title and paragraph number such part of the pleadings, and by page number such part of the auditor’s report, and such parts of the evidence reported by the auditor as are necessary to an understanding of the errors complained of.” The reason for requiring such specificity in the factual exceptions is stated in OCGA § 9-7-17: “In all law cases where an auditor is appointed, exceptions of fact to his report shall be passed upon by the jury as in other issues of fact, . . The case is submitted to the jury on the testimony reported by the auditor, OCGA § 9-7-18, and the jury is required to find “for or against each exception submitted, seriatim.” OCGA § 9-7-20.

The filing of a document which defendant “treated” as his exceptions is not sufficient for these purposes. Beck v. Cobb County, supra at 811, involved proceedings under the special statutory proceeding for condemnation, which is similar to the auditor statute. There, the condemnees raised issues concerning the county’s power to take the property, but “subsequent to the entry of the award of the special master and prior to the entry of the judgment of the trial court vesting title in the county pursuant to the special master’s award, the only action taken by appellants was the filing of what can only be denominated a notice of appeal to a jury. ... At no time did appellants file specific exceptions to the award of the special master in order to preserve their right to have the superior court pass upon their claims. . . .”

The response filed by defendant likewise does not fulfill the purpose of the exceptions required by Chapter 7, and the trial court’s failure to treat them as such was not error. It likewise follows that the court’s denial of defendant’s motion to amend this document was not error, because it did not perform the office of the requisite exceptions in the first place. It also follows that the denial of the motion to reconsider was not error, the initial determination having been correct. There being no exceptions filed, the court did not err in entering judgment on the auditor’s report in plaintiff’s favor. OCGA § 9-7-21 (a).

2. Enumerations of Error 5-19 are all matters which should have been excepted to and, as discussed above,,were not. Therefore, they were waived and will not now be considered. See Foster v. Pa. Millers Mut. Ins. Co., 143 Ga. App. 792 (240 SE2d 144) (1977).

3. After defendant was added to the suit in 1981, a change in counsel occurred and his present counsel entered the suit by appearance on March 29, 1983. No motion or other pleading was filed concerning the disqualification of plaintiffs’ law firm prior to the hearing conducted by the auditor during June 1984.

About halfway through the hearing, defendant’s counsel alluded to a perceived conflict in the context of objecting to the recovery of fees by plaintiffs’ counsel since counsel had allegedly represented both plaintiffs and defendant in the drafting of the joint venture agreement at issue. The auditor ruled that such a matter had not been included in the order referring the dispute to him and advised defendant to file any such motion with the court. When the motion was filed in June 1986, it was based on the ground that the firm of plaintiffs’ counsel had drafted the joint venture agreement (a lawyer other than trial counsel) and had obtained “privileged and confidential information” concerning the Guatemalan individual and defendant. Although there was conflict in the evidence as to whether the firm represented all three joint venturers or only the plaintiffs, it was not disputed that during all meetings with the attorney doing the drafting, all three joint venturers were present.

Decided April 22, 1987

Rehearing denied May 8, 1987

Joseph B. Bergen, Frederick S. Bergen, for appellant.

Walter C. Hartridge, Roy E. Paul, for appellees.

Even if the law firm represented all three joint venturers as argued by defendant, the trial court’s denial of the motion was not error. In a situation where joint venturers all meet with counsel at the same time for purposes of discussing their venture, the privilege does not apply as between the venturers. Walker v. Mason, 75 Ga. App. 229, 231 (1) (43 SE2d 116) (1947); Agnor’s Ga. Evid., § 6-3; see Gearhart v. Etheridge, 232 Ga. 638, 640 (208 SE2d 460) (1974). Healthcrest, Inc. v. American Med. Intl., 605 FSupp. 1507 (N.D. Ga. 1985), cited by defendant, does not dictate a different result. Aside from the fact that the case arose in a court whose rulings do not bind this Court, the ruling of the court was based on the specific finding that one of the drafting attorneys was a necessary witness for the client, a ground not raised in the present case.

Judgment affirmed.

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


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    73883.
    HILL v. PARADISE APARTMENTS, INC.
    (357 SE2d 288)
   McMurray, Presiding Judge.

Paradise Apartments, Inc., d/b/a Hollywood West Apartments (“Hollywood West”) brought this dispossessory action against Barbara A. Hill, a tenant in a residential facility owned and operated by Hollywood West. Ms. Hill filed an answer and a bench trial was conducted which resulted in the trial court granting a writ of possession to Hollywood West for the apartment unit occupied by Ms. Hill. Ms. Hill appeals. Held:

1. In her first enumeration of error Ms. Hill contends the evidence adduced at trial was not sufficient to support the termination of her tenancy. We do not agree.

The rental agreement entered into between Hollywood West and Ms. Hill provides “[t]he Landlord may terminate this Agreement only for . . . serious or repeated damage to the unit or common areas . . .” The evidence adduced at trial authorized a finding that Ms. Hill had repeatedly refused to comply with Hollywood West’s request for Ms. Hill to prevent her child/children from utilizing common areas in the apartment complex for recreational purposes. Ms. Hill’s failure to comply with this request resulted in damage to a recently landscaped common area. More specifically in this regard, Hollywood West’s apartment complex manager testified as follows: “[Hollywood West’s Attorney]: Did you have any discussion with Ms. Hill about her child playing on the grass? A. Yes I did ... We have went down and . . . reseeded the area. I talked to Ms. Hill and some of the other tenants’ kids that was playing on the grass. We called a landscaper in and had him to go down and . . . correct the problem. We had a big area there in front of Ms. Hill’s building where the kids would play volleyball over the fence ... I had talked to Ms. Hill about it. I talked to some of the other residents about it that lived in [the] building [where Ms. Hill lived] . . . Most of the residents, the residents sent their kids to the playground to play, all except Ms. Hill . . . [Ms. Hill] told me that she did not want her kids to play at the playground ... I stated to her that was the onliest area for the kids to play and that was [the] onliest area the kids would be allowed to play . . . because we was improving the landscaping and doing a lot of seeding and planting bushes and so forth at the complex. But her kids never played at the playground. Q. Now, did you have occasion to have signs posted . . . asking the residents to keep off the grass? A. That’s correct. We bought and posted keep-off-the-grass grass signs. Q. . . . [W]hat was Ms. Hill’s response to the posting of those signs? A. There was none. I went back to work the next day, and someone had pulled the sign up. . . . Q. Was Ms. Hill’s son the only child that continued to play on the grass in front of [the] building [where Ms. Hill lived]? A. He was the only child that continued to play on the grass . . . After I talked to the rest of the tenants and I sent out letters letting them know what we was doing to improve the complex, [the other residents] sent their kids to the playground. Q. Now, was Ms. Hill’s children’s repeated playing on the grass causing a problem? A. That’s true ... It was causing bare spots to the area. . . . Q. In your notices [to Ms. Hill], did you point out . . . that this was a violation of the lease? A. Yes, I did. Q. Did Ms. Hill respond ... to your notice to her that she was in violation of her lease? A. She did once. She told me that she didn’t want her kids to play at the playground because the guys was looking at her daughters and she wanted them to stay close where she could see them.” Further, Hollywood West’s maintenance employee testified that the area in question had to be reseeded because of damage caused by children’s recreational activity. This evidence alone was sufficient to authorize the factfinder’s conclusion that Ms. Hill had breached the rental agreement by failing to prevent her child/children from causing “repeated damage” to a common area in the apartment complex. The evidence presented also authorized the factfinder’s finding that Hollywood West had proper grounds for termination of its lease with Ms. Hill. See Griffin v. Housing Auth. of Savannah, 169 Ga. App. 621 (1) (314 SE2d 462), for discussion concerning the role of the trier of fact in cases involving dispossessory actions.

2. In her second enumeration of error Ms. Hill contends the judgment ordering her eviction was invalid because she was not given sufficient notice of the reasons for the termination of her tenancy as is required by the rental agreement she entered into with Hollywood West. The provision upon which Ms. Hill relies requires Hollywood West to notify Ms. Hill in writing of any proposed termination of her tenancy and “state the grounds for termination with enough detail for [her] to prepare a defense.” This provision conforms to a regulation promulgated by the United States Department of Housing and Urban Development (HUD) which provides that “[t]he landlord’s determination to terminate the tenancy shall . . . state the reasons for the landlord’s action with enough specificity so as to enable the tenant to prepare a defense . . .” 24 CFR § 247.4 (a) (2).

Hollywood West participates in federal government lower income housing programs that are administered by HUD and is required to adhere to the above regulation. Smith v. Hendrix, 162 Ga. App. 299, 300-301 (290 SE2d 504). Generally, failure to comply with this notice requirement will invalidate a HUD regulated landlord’s termination of tenancy. 24 CFR § 247.3 (a); Smith v. Hendrix, 162 Ga. App. 299, 301 (2), supra. However, in those cases where the tenant has not been harmed by the landlord’s failure to provide adequate reasons for the termination of the tenancy, the judgment ordering dispossession of a tenant holding over will not be overruled on appeal. Smith v. Hendrix, 162 Ga. App. 299, 301 (2), supra.

“The manifest purpose of the foregoing [regulation] is to afford procedural due process in eviction proceedings to tenants in federally subsidized housing projects, ‘. . . to cure the evils of discriminatory and arbitrary eviction procedures prevalent in federally-subsidized housing . . .’ Goler Metropolitan Apts. v. Williams, 43 N. C. App. 648 (260 SE2d 149) (1979); see also Green v. Copperstone Ltd. Partnership, 28 Md. App. 498 (346 A2d 686) (1975); Anderson v. Denny, 365 F.Supp. 1254 (W.D. Va. 1973).” Smith v. Hendrix, 162 Ga. App. 299, 302, supra.

In the case sub judice, even assuming Hollywood West’s letter failed to comply with the notice provision of the rental agreement and the subject HUD regulation, we find that Ms. Hill was not deprived of procedural due process because of lack of information concerning the basis of her termination.

We base this conclusion on the fact that Hollywood West sent Ms. Hill a termination letter dated October 2, 1984, stating, among other grounds, that her lease would not be renewed because of: “your son Jimatez playing on the grass, you fail to see that your child/ren play at the playground.” Next, Ms. Hill was given 10 days from the date of the letter to discuss the basis of her termination with Hollywood West and 30 days from the date of the termination letter to vacate the leased premises. Finally, and most persuasively, Ms. Hill retained an attorney to represent her in this dispossessory action who filed an answer on her behalf and actively pursued pretrial discovery by filing interrogatories and a subpoena for the production of documents. Under these circumstances, it is a hollow argument to assert harmful error based on lack of notice because of insufficient information concerning the reasons for the termination of her tenancy. If Ms. Hill and her attorney were not aware of the basis for the termination of her tenancy at the time of trial, it was not as a result of a deficient termination letter sent by Hollywood West.

“ ‘It is an old and sound rule that error to be reversible must be harmful. (Cits.) Thus, when a plaintiff in error . . . brings a case here, he must show error which has hurt him. This court is not an expounder of theoretical law but it administers practical law, and corrects only such errors as have practically wronged the complaining party.’ Best Concrete Products Co. v. Medusa Corp., 157 Ga. App. 97, 101 (276 SE2d 147) (1981). In our view, the record in [the case sub judice] discloses that [Ms. Hill] was not denied her right to due process, even though the notice provided by [Hollywood West] may not have precisely conformed to the directives of the [rental agreement and the] subject regulations. [Cits.] Therefore, [Ms. Hill] has failed to show that she was ‘practically wronged’ by the subject enumerated [ruling] of the trial court relating to [Hollywood West’s] alleged noncompliance with said [rental agreement and regulation].” Smith v. Hendrix, 162 Ga. App. 299 (2), 302-303, supra. Consequently, this enumeration of error is without merit. See Henderson v. Colony West, 175 Ga. App. 676 (1), 677 (332 SE2d 331). Compare Housing Auth. of DeKalb County v. Pyrtle, 167 Ga. App. 181 (306 SE2d 9).

Judgment affirmed.

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

Beasley, Judge,

concurring specially.

I concur fully in Division 1. I concur in the judgment of Division 2 for the reason that I am of the opinion that the trial court was authorized to find that the notice of the reasons for termination, given to the tenant by the landlord, was sufficient. Taken with all of the other evidence that she had been repeatedly warned, both orally and in writing, of the very deficiencies for which she was being terminated, the capsulizing letter identified for her the basis. This dovetailed with the lease, which specifically provided for termination for “serious or repeated damage to the unit or common areas.”

Decided May 11, 1987.

Elizabeth Bentley Watson, for appellant.

June D. Green, for appellee.

Plus, although only the lease but not the regulations require it, she was expressly notified in the letter of an opportunity to discuss it further with the landlord. So, having been put on notice of what the violations were, she could dispute it and defend against it in the meeting with management. If she needed further particulars, she could get them then or make further inquiry beforehand.

The retention of an attorney to defend against the dispossessory action, and the discovery conducted as part of the litigation, is not relevant to the issue. Appellant complains of the notice given by the landlord, which supposedly prevented her from defending in her presuit dealings with the landlord. She is not complaining that the lawsuit did not put her sufficiently on notice so as to be able to prepare a defense; if that were the target, instead of what is, then the post-suit revelations would be the deflectors from such an attack.


text:
    73918.
    KING v. AMOCO OIL COMPANY.
    (357 SE2d 291)
   Sognier, Judge.

Amoco Oil Company brought a collection action against Nina Sue King on a commercial account for fertilizer. Amoco filed a motion to join King’s husband as an additional party defendant, but he died before service on him was effected. The trial court granted Amoco’s motion for summary judgment, and King appeals.

1. Appellant contends the trial court erred by granting summary judgment in favor of appellee because there remained genuine issues of material fact which required jury resolution as to her defensive allegations that she never contracted for or received any goods or services from appellee nor did she order or receive the fertilizer reflected on appellee’s invoices. The record reveals that in support of its motion for summary judgment, appellee submitted the affidavit of Loretta Brown, its credit representative, who stated she was familiar with appellee’s record keeping procedure, and that the business records attached to the affidavit correctly represented invoices for fertilizer sold and delivered to appellant. In opposition to the motion, appellant proffered her own affidavit, swearing she had never either expressly or impliedly purchased or contracted for any merchandise or services from appellee, nor had she authorized anyone else to do so on her behalf. Appellant further swore that she neither was then, nor had she ever been, engaged in any business or commercial venture, including farming, and had never agreed to pay any commercial accounts for any other person. She further denied that the business records attached to Brown’s affidavit pertained to her.

Viewing this conflicting evidence in the light most favorable to appellant as the nonmovant, see Mallard v. Jenkins, 179 Ga. App. 582 (347 SE2d 339) (1986), we agree with appellant that these opposing affidavits created a genuine issue of material fact as to whether appellant ever contracted for or received the goods or services for which appellee sought payment. Summary judgment on this issue was therefore improper. See Paulk v. Car. Eastern, 172 Ga. App. 669 (324 SE2d 527) (1984).

2. Appellant further contends that even if it is found that she is liable to appellee in some amount, a genuine issue of material fact remains for jury resolution as to the amount owed. Appellant argues that appellee failed to establish that the amount sued for is the correct amount owed. In her affidavit, appellant denied that the invoices reflect goods or services sold and delivered to her. Appellee has failed to pierce this allegation, in that it has shown no evidence that any goods or services were actually ordered by or delivered to appellant. Therefore, any amount owed must be determined by a jury at trial, and summary judgment on this issue was improper as well. See Walker v. Modnar Corp., 178 Ga. App. 374, 376 (343 SE2d 148) (1986).

3. Appellee concedes that summary judgment in its favor was improper as to the issues considered in Divisions 1 and 2. Appellee argues, however, that appellant raised numerous other defenses to the action both in her answer and in the pretrial order, and that as to those other defenses, the trial court properly granted summary judgment in favor of appellee. Although appellant enumerated as error the grant of summary judgment in general, she presented argument and citations of authority only as to the issues discussed in Divisions 1 and 2 of this opinion. We agree with appellee that as to all other issues, the trial court’s grant of summary judgment in favor of appellee was proper.

(a) Appellant’s defense that appellee is unauthorized to transact business in Georgia was pierced by Brown in her affidavit stating that appellee is a Maryland corporation registered and authorized to do business in Georgia. In the absence of any evidence rebutting this assertion, the trial court properly granted summary judgment to appellee on this issue. OCGA § 9-11-56 (e). See Douglas County v. Anneewakee, Inc., 179 Ga. App. 270, 274 (346 SE2d 368) (1986).

(b) Appellant’s asserted defense that the interest charged by appellee was usurious is not meritorious. OCGA § 7-4-16 provides for a rate of interest of I-V2 percent per month on the unpaid balance in commercial accounts “[u]nless otherwise provided in writing signed by the obligor.” It is uncontroverted that the invoices attached to the affidavit in support of appellee’s motion for summary judgment provide for interest of I-V2 percent per month on the unpaid balance. It is thus clear as a matter of law that the interest charged by appellee was not usurious, and summary judgment was properly granted in favor of appellee on this issue.

(c) Appellant alleged as a defense that appellee had violated the Georgia Plant Food Act of 1970 (OCGA § 2-12-1 et seq.). OCGA § 2-12-1 et seq. sets forth a complex regulatory scheme which is administered by the Commissioner of Agriculture. OCGA § 2-12-3. Violations of the Act are criminal in nature and are to be referred to the courts by the Commissioner for prosecution. The only remedy available to a commercial purchaser of fertilizer is that set forth in OCGA § 2-12-16 (a), which provides for penalties to be paid to the purchaser for fertilizer which has been found by the Commissioner to be short in weight, after administrative action. The record reveals no showing by appellant that the fertilizer in question was short in weight, that administrative action was initiated by the Commissioner of Agriculture to make such a finding, or that a private right of action for violation of the statute exists apart from the regulatory scheme set up in the statute under the aegis of the Commissioner. We therefore agree with appellee that the trial court properly granted summary judgment in its favor as to this defense.

(d) Appellant alleged several defenses based on federal consumer protection statutes. The Truth-In-Lending Act, 15 USC § 1601 et seq., specifically exempts “[c]redit transactions involving extensions of credit primarily for business, commercial, or agricultural purposes” from its purview. 15 USC § 1603 (1), 12 CFR § 226.3 (a). Similarly, the Fair Debt Collection Practices Act, 15 USC § 1692 et seq., was intended to apply to debts arising out of transactions “in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes.” 15 USC § 1692a (5). The transactions which form the subject of this action would therefore not be covered. See Munk v. Fed. Land Bank, 791 F2d 130, 132 (2) (10th Cir. 1986). Further, appellee was not attempting to collect another’s debt and is therefore not a “debt collector” within the meaning of the statute. Id. 15 USC § 1692a (6) (A). Accordingly, summary judgment was properly granted in favor of appellee as to these defenses.

Judgment affirmed in part and reversed in part.

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

Decided May 11, 1987.

Luman C. Earle, for appellant.

Ward Stone, Jr., James J. Fason III, for appellee.


text:
    74040.
    DAVIS v. THE STATE.
    (357 SE2d 294)
   Sognier, Judge.

Davis was charged with rape and convicted of aggravated assault, and he appeals.

1. Appellant contends the evidence is not sufficient to support the verdict. The evidence disclosed that the victim was returning home from work about 11:30 p.m. As she was walking from the bus stop to her home appellant came up beside her and pointed a gun at her. The victim screamed and ran to a nearby house, and when no one answered her knocks on the door, she hid in some nearby bushes. After fifteen or twenty minutes the victim started running toward her home, but was again accosted by appellant, this time with a knife. Appellant put his arm around the victim’s neck and forced her into a nearby wooded area. There he ordered the victim to disrobe and had sexual intercourse with her against her will. Although she called her boyfriend immediately after the incident, she did not report the incident to the police. A few days later the victim was in a laundromat and saw appellant across the street. The victim called the police and on their arrival pointed out appellant as the person who had raped her. When a police officer approached appellant he ran into a nearby housing area, but was apprehended a short time later hiding in a crawl space under a house. The victim identified appellant positively as the person who had raped her. Appellant made a statement to the police acknowledging his encounter with the victim but denying that he raped her. Appellant told the police that he thought about raping the victim but did not do so. Appellant did not testify and no evidence was presented by the defense.

Although appellant attempted to discredit the victim’s testimony on cross-examination, her credibility was a question for the jury, which decided that issue adversely to appellant. We find the evidence sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Appellant contends the trial court erred by denying his motion for a mistrial after the prosecuting attorney, in closing argument, stated that appellant was guilty.

During closing argument the prosecuting attorney stated: “I am simply asking that you mete out justice in this case. This man is guilty.” Appellant moved immediately for a mistrial on the ground that the prosecuting attorney had expressed his personal opinion that appellant was guilty. The court denied the motion but instructed the jury that counsel can state what they feel the evidence shows, but cannot state any personal opinions they may have about the guilt or innocence of the accused. The court also instructed the jury to disregard any personal opinions of counsel as to the guilt or innocence of the accused. Appellant’s renewal of his motion on the ground that the court’s admonition to the jury was insufficient was overruled.

Decided May 11, 1987.

Carl P. Greenberg, for appellant.

Robert E. Wilson, District Attorney, Susan Brooks, John H. Petrey, Assistant District Attorneys, for appellee.

A trial court has broad discretion in ruling on a motion for mistrial, and this court will not disturb such a ruling in the absence of a manifest abuse of discretion, and a mistrial is essential to preserve the defendant’s right to a fair trial. Ewald v. State, 156 Ga. App. 68, 70 (5) (274 SE2d 31) (1980). Under the circumstances of the instant case, we find no abuse of discretion in the denial of appellant’s motion. Also, any prejudicial harm caused by the prosecutor’s remark was immediately corrected by the trial judge when he ruled it out of the record and instructed the jury to disregard any expression of personal opinion by counsel. Campbell v. State, 143 Ga. App. 445, 446 (2) (238 SE2d 576) (1977); Everett v. State, 160 Ga. App. 809 (288 SE2d 233) (1982).

Judgment affirmed.

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