author: McMurray, Presiding Judge. Deen, Presiding Judge, Beasley, Judge,

text:
    74245.
    SWOFFORD et al. v. COOPER.
    (360 SE2d 624)
   McMurray, Presiding Judge.

Plaintiff Priscilla Swofford brought two medical malpractice actions against Dr. Annie B. Cooper, a practicing psychiatrist. A third medical malpractice action against Dr. Cooper was brought by Jerry Swofford, by Priscilla Swofford, his guardian (and mother). In each action, it was alleged that Oren Swofford, Priscilla Swofford’s deceased husband, was stabbed to death by Jerry Swofford, the Swoffords’ son and defendant’s patient. In one case, Priscilla Swofford, individually and as executrix of the estate of Oren Swofford, sought damages for her husband’s wrongful death and for the pain and suffering he endured before he died. In another case, Priscilla Swofford sought damages for the pain and suffering she herself incurred when she and her husband were attacked by their son. In the third case, Jerry Swofford by his guardian, Priscilla Swofford, sought the recovery of damages for the physical pain and emotional suffering which he incurred as a result of having killed his father. In that case, Jerry Swofford, by his guardian, also sought to recover the legal expenses which were incurred in a criminal matter stemming from the stabbing incident. Following discovery, the trial court granted summary judgment to defendant in each case and plaintiffs appeal. We reverse.

Jerry Swofford was given up for adoption by his natural mother shortly after he was born. During his early years, he lived in a number of foster homes. When he was five years old, he was placed with the Swoffords. Over the years, the Swoffords had cared for more than 100 foster children. They decided to adopt Jerry when he was eight years old. .

Jerry’s natural mother contracted rubella during her pregnancy. Consequently, Jerry has endured numerous mental and physical problems. He is deaf, partially blind and mentally retarded. In addition, Jerry has heart problems, scoliosis and epilepsy.

When Jerry reached his teenage years he became combative and aggressive. He was placed in various schools and mental hospitals around the State. On December 10,1982, Jerry was admitted to Parkway Regional Hospital. He remained there until January 12, 1983, when he was admitted to Georgia Regional Hospital at Atlanta. The physician’s transfer certificate stated that Jerry had been homicidal and was threatening to kill his family.

Jerry was placed on the adolescent unit at Georgia Regional. Defendant was the staff psychiatrist of that unit. It was defendant’s responsibility to supervise and direct Jerry’s treatment. She was aware of Jerry’s history of aggressive behavior and of the homicidal threats which he had made. Her treatment goals were to stabilize Jerry’s behavior and to find appropriate placement for him.

Jerry remained at Georgia Regional for the next 11 months. During that time, Jerry was given a number of hourly, daily and weekend passes. The passes were given with defendant’s approval. In the week before Christmas, defendant approved a two-week pass for Jerry.

The Swoffords took Jerry home on December 22, 1983. Four days later, as his parents slept, Jerry picked up a kitchen knife, entered their bedroom and fatally stabbed his father. Jerry’s mother was awakened when her husband called out for help. Then Jerry attacked her. She was able to disarm Jerry without sustaining serious injury.

In an affidavit which she submitted in support of her motion for summary judgment, defendant averred that in treating Jerry she was at all times acting in her official capacity as a physician specialist on the staff at Georgia Regional Hospital at Atlanta; and that she acted in good faith in carrying out her duties. With regard to the issue of negligence, defendant opined that she exercised that degree of care and skill which, under similar conditions and like circumstances, is ordinarily employed by the medical profession.

In opposition to defendant’s summary judgment motion, plaintiffs submitted the deposition testimony of Dr. Robert J. Alpern. It was Dr. Alpern’s opinion that Jerry became more aggressive during his hospitalization at Georgia Regional; that, given the state of Jerry’s aggressiveness, it was not prudent to issue a two-week pass to him; and that the issuance of such a pass to Jerry constituted medical negligence. In Dr. Alpern’s words, the issuance of the pass was “below the acceptable level of care.” Although Dr. Alpern stated that no one could have expected Jerry to fatally stab his father, he opined that “some sort of physical injury” was a foreseeable consequence of defendant’s negligence. In this regard, Dr. Alpern commented that Jerry’s aggressive behavior was apparent and that if that behavior was not contained when it occurred, assaultive behavior could have been expected. Held:

1. In Hennessy v. Webb, 245 Ga. 329 (264 SE2d 878), the Supreme Court made it clear that the discretionary acts of public employees are protected by the doctrine of official immunity. Quoting from Partain v. Maddox, 131 Ga. App. 778 (206 SE2d 618), the court said: “ ‘It is a well-established principle that a public official who fails to perform purely ministerial duties required by law is subject to an action for damages by one who is injured by his omission. However, it is equally well established that “where an officer is invested with discretion and is empowered to exercise his judgment in matters brought before him, he is sometimes called a quasi-judicial officer, and when so acting he is usually given immunity from liability to persons who may be injured as a result of an erroneous decision; provided the acts complained of are done within the scope of the officer’s authority and without wilfulness, malice, or corruption.” ’ These discretionary acts ‘. . .lie midway between judicial and ministerial ones. The name of the public officer or officers is immaterial, and the question depends on the character of the act. If the act done for which recovery is sought is judicial or quasi-judicial in its nature, the officer acting is exempt from liability.’ ” Hennessy v. Webb, supra at 330, 331.

“ ‘(I)n Georgia the distinction between a ministerial and a discretionary act, and therefore the scope of the immunity granted a public official in any given situation, turns upon the specific character of the complained-of act, not the more general nature of the job. Partain v. Maddox, (131 Ga. App. 778, 783 (206 SE2d 618) (1974)); Price v. Owen, [67 Ga. App. 58 (19 SE2d 529) (1942)]. Under this standard it makes no difference that the official is required to perform discretionary acts if the complained-of act is more properly characterized as ministerial. The grant of qualified immunity, then, is really more in the nature of a transitory privilege rooted in the fear that a contrary rule would inhibit the judgment upon which good government rests. The single overriding factor is whether the specific act from which liability allegedly arises is discretionary or ministerial.’ Miree v. United States, 490 FSupp. 768, 773 (1980).” Shuman v. Dyess, 175 Ga. App. 213, 216 (333 SE2d 379). This determination is made on a case-by-case basis. Id. at 215.

In our opinion, the decision to permit a patient to leave a mental hospital for home visitation is undisputably a discretionary act. Roberts v. Grigsby, 177 Ga. App. 377 (339 SE2d 633). It “is precisely the type of governmental decision that discretionary immunity was designed to protect from tort litigation by after-the-fact review. . . .” Cairl v. State, 323 NW2d 20, 23 (Minn. 1982). In making such a decision, treating physicians must weigh the patient’s physical and emotional needs, the suitability of the home milieu and the public safety. This decision should not be made with the threat of civil liability in mind. A “plaintiff could undoubtedly find qualified psychiatrists who would testify that the treating physicians exercised negligent judgment, especially when they are fortified by hindsight. The effect would be fairly predictable. The treating physicians would indulge every presumption in favor of further restraint, out of fear of being sued. Such a climate is not in the public interest.” Sherrill v. Wilson, 653 SW2d 661, 664 (Mo. banc 1983).

Defendant’s approval of Jerry’s two-week holiday pass was a discretionary act. It follows that defendant was cloaked with official immunity. Hennessy v. Webb, 245 Ga. 329, supra; Roberts v. Grigsby, 177 Ga. App. 377, supra.

2. Relying upon Jackson v. Miller, 176 Ga. App. 220 (335 SE2d 438), plaintiffs contend defendant is not immune from liability since the Hennessy v. Webb, 245 Ga. 329, supra, doctrine does not insulate public clinic physicians from liability to their patients for medical malpractice. We agree that defendant cannot invoke the doctrine of official immunity in the lawsuit brought by Jerry Swofford by his guardian, Priscilla Swofford. After all, Jerry was a patient of defendant. Thus, with respect to Jerry, defendant’s “alleged negligence was simply that of a medical doctor in providing treatment to a patient.” Jackson v. Miller, supra at 221. The Hennessy v. Webb, supra, doctrine does apply however, to the lawsuits brought by Priscilla Swofford.

Priscilla Swofford urges us to extend the Jackson v. Miller, supra, rationale to her own lawsuit and to the lawsuit which she brought individually and as executrix of her deceased husband’s estate. In this regard, Priscilla Swofford argues that she and her husband were also “patients” of the defendant because they were counseled by defendant and her staff. We disagree. The record does not demonstrate that Priscilla Swofford and Oren Swofford necessarily or customarily participated in the consultation and treatment of Jerry. See generally Sims v. State, 251 Ga. 877, 881 (311 SE2d 161). At best, the record merely demonstrates that at times Priscilla Swofford and her husband were advised about the best way to handle Jerry in a given situation. It cannot be said that by receiving such advice, Mr. and Mrs. Swofford became defendant’s “patients.”

3. Defendant argues that Jerry Swofford cannot maintain the lawsuit brought by his guardian, Priscilla Swofford, for two reasons. First, she contends she is immune from civil liability under OCGA § 37-3-4. Second, she asserts the fatal stabbing of Oren Swofford by Jerry was unforeseeable. We disagree.

OCGA § 37-3-4 applies to “actions in connection with the admission of a patient to a facility or the discharge of a patient from a facility.” It has no application to actions concerning the treatment of a patient. Consequently, it has no application to hourly, daily or holiday visitation passes dispensed by a physician in the treatment process.

With regard to foreseeability, we simply point out “that in order for a party to be held liable for negligence, it is not necessary that he should have been able to anticipate the particular consequences which ensued. It is sufficient if, in ordinary prudence, he might have foreseen that some injury would result from his act or omission, and that consequences of a generally injurious nature might result. Wright v. Southern Ry. Co., 62 Ga. App. 316 (3) (7 SE2d 793).” Emory Univ. v. Lee, 97 Ga. App. 680, 691 (104 SE2d 234).

4. In its order granting summary judgment to defendant in all three lawsuits, the trial court ruled that Jerry Swofford could not maintain the lawsuit which his guardian, Priscilla Swofford, brought because Jerry himself was negligent. We disagree with this analysis. The record demonstrates that Jerry was psychotic when he stabbed his father. (Jerry was declared incompetent to stand trial and remains in a mental institution.) Thus, “he could not have been held to the exercise of any degree of diligence.” Emory Univ. v. Lee, supra at 702.

5. Pointing out that defendant was insured by a policy of liability insurance which was purchased by the department employing defendant, plaintiffs contend that defendant’s official immunity defense is waived to the extent of the insurance coverage. (The insurance policy provided for the payment of “all sums which the insured [defendant] shall become legally obligated to pay as damages, court costs and attorney fees, because of bodily injury, property damage or personal injury resulting from any job related occurrences caused by any insured.”) In support of their contention, plaintiffs cite Art. I, Sec. II, Par. IX of the Constitution of the State of Georgia of 1983, which provides, in pertinent part: “[T]he defense of sovereign immunity is waived as to those actions for the recovery of damages for any claim against the state or any of its departments and agencies for which liability insurance protection for such claims has been provided. . . .” Defendant takes issue with plaintiffs’ contention. She posits that the constitutional provision concerns the doctrine of sovereign immunity and applies only to the State, its departments and agencies. Thus, defendant takes the position that the official immunity doctrine is not affected by Art. I, Sec. II, Par. IX of the 1983 Constitution.

In Martin v. Ga. Dept. of Public Safety, 257 Ga. 300 (357 SE2d 569) (1987), our Supreme Court recently resolved this issue. In that case, employees of the Department of Public Safety argued that the purchase of liability insurance did not constitute a waiver of their official immunity. This argument was rejected, the Supreme Court holding: “Because negligence in performing official acts is covered by this insurance, these officers’ official immunity is waived to the extent to which this coverage will pay for the claims asserted. DeKalb County School Dist. v. Bowden, 177 Ga. App. 296, 300 (339 SE2d 356) (1985), cert. denied.”

In the case sub judice, the acts of defendant were covered by a policy of liability insurance. It follows that defendant’s official immunity is waived to the extent of that insurance. Martin v. Ga. Dept. of Public Safety, 257 Ga. 300, supra.

6. The trial court erred in granting defendant’s motion for summary judgment in each of these medical malpractice actions. With regard to the lawsuit which Jerry Swoiford, by his guardian (and mother), Priscilla Swoiford, brought, the doctrine of official immunity is inapplicable. With regard to the lawsuit which Priscilla Swoiford brought individually and as executrix of her husband’s estate, and with regard to the lawsuit which she brought in her own right, seeking damages for the pain and suifering she herself incurred, defendant’s official immunity was waived to the extent of defendant’s insurance coverage.

Judgment reversed.

Birdsong, C. J., Banke, P. J., Carley, Sognier, and Benham, JJ., concur. Deen, P. J., concurs specially. Pope, J., concurs in judgment only. Beasley, J., concurs in part and dissents in part.

Deen, Presiding Judge,

concurring specially.

While personally agreeing with Judge Beasley’s perspicacious analysis regarding the plan, purpose, and proper effect of purchasing insurance for state employees pursuant to OCGA § 45-9-1 et seq., the fact remains that the Supreme Court does not share that view. In Martin v. Ga. Dept. of Public Safety, 257 Ga. 300 (357 SE2d 569) (1987), the Supreme Court definitely held that purchase of such insurance (or establishment of a self-insurance fund) effects a waiver of both sovereign immunity and official immunity. In view of the holding in Martin, therefore, I agree with the majority opinion that the defendant was no longer shielded by official immunity.

Beasley, Judge,

concurring in part and dissenting in part.

I agree with all except Divisions 2 and 5 and those parts of Division 6 which summarize them.

1. The reason that I must file this partial dissent is that it appears that the official immunity asserted by Dr. Cooper would prevent recovery by Jerry Swoiford, the patient, as well.

It has been held by the Court that the doctor’s approval of the two-week pass as a part of Jerry’s therapeutic/recreational treatment was a discretionary act. It is the nature of the act which controls. Partain v. Maddox, 131 Ga. App. 778, 783 (206 SE2d 618) (1974); Price v. Owen, 67 Ga. App. 58 (19 SE2d 529) (1942). “ ‘The single overriding factor is whether the specific act from which liability allegedly arises is discretionary or ministerial.’ [Cit.]” Shuman v. Dyess, 175 Ga. App. 213, 216 (333 SE2d 379) (1985). Thus it is not who is injured as a proximate result of that act, or what the relationship between the alleged tortfeasor and the injured party is, that determines whether official immunity applies. That is, it makes no difference to the application of the limited official immunity that patient Jerry Swofford’s injuries were attributable to negligence in medical treatment, assuming such latter was proved. Official immunity intervenes even where the negligence by the doctor injures the patient, and not only where it injures third parties. I do not see that the relationship between the tortfeasor and the injured party creates an exception to the official immunity rule here, where there is a physician and patient, any more than did the relationship of warden and inmate in Gray v. Linahan, 157 Ga. App. 227 (276 SE2d 894) (1981). It is inconsistent for the Court to hold that the defendant “was cloaked with official immunity,” which means that the act was a discretionary one performed as part of the defendant’s official duties, and then also hold that the act was merely medical treatment rather than performance of an official duty.

I respectfully suggest that Jackson v. Miller, 176 Ga. App. 220 (335 SE2d 438) (1985) be overruled because it does not make the distinction between sovereign immunity, which relates to suits against the state and its departments and agencies and insulates the state treasury, and official immunity, which relates to suits against officials and employees personally and insulates their decision-making and their own purses.

It is true that Dr. Miller could not invoke the doctrine of sovereign immunity because he was not being sued as an agent of the state. Ga. Const. 1983, Art. I, Sec. II, Par. IX. Instead, he was being sued individually. The immunity found in Hennessey v. Webb, 245 Ga. 329 (264 SE2d 878) (1980), is of the latter sort.

I agree with the special concurrence in Roberts v. Grigsby, 177 Ga. App. 377, 379 (339 SE2d 633) (1985) that Jackson v. Miller, 176 Ga. App. 220, supra, should be overruled. I cannot find the root of the rule stemming from Jackson. Irwin v. Arrendale, 117 Ga. App. 1 (159 SE2d 719) (1967), cited in Jackson, deals with sovereign immunity, not official immunity, and predates Hennessey.

2. It is difficult to understand that the reasoning in Martin v. Ga. Dept. of Public Safety, 257 Ga. 300 (357 SE2d 569) (1987) controls this case.

As shown by the record, the insurance covering Dr. Cooper is comprehensive general liability insurance established pursuant to Ga. L. 1977, p. 1051 under a self-insurance scheme by the Department of Administrative Services. That Act, as amended, now comprises OCGA Title 45, Ch. 9, Art. 1. It permits the purchase of insurance, as additional compensation to officials and employees, to cover them “to the extent they are not immune from liability against personal liability for damages arising out of the performance of their duties or in any way connected therewith.” Section 2 of that Act permitted the self-insurance mechanism as opposed to separate policies purchased by each agency which chose to provide this type compensation for its officials and employees. The scope of the authorization is now codified in OCGA § 45-9-1, and the self-insurance alternative method for implementing the same appears as OCGA § 45-9-4.

The insurance, which is a liability trust fund, agrees to pay only sums “which the insured [employee] shall become legally obligated to pay,” and it expressly states that it “shall be governed by and construed under and in accordance with the laws of the State of Georgia.” Nowhere does it, or the Act, give any indication that the official immunity established much prior to passage of the Act was no longer to be a legal defense.

I fail to understand how the 1983 Constitution of the State of Georgia changed this. Art. I, Sec. II, Par. IX provides for sovereign immunity of the state from suit. Neither the state nor any of its departments or agencies is being sued by Swofford. Thus the limited waiver yielded by the sovereign state in that provision to the extent the General Assembly provides liability insurance which will cover the damages instead of the state treasury being the source for the same, does not seem to relate to plaintiffs’ attempt to reach Dr. Cooper’s own pocket or the insurance provided as compensation to her, which insurance covers her non-immune acts and guards her personal assets by paying when she is found liable. This would generally occur when she is sued for an act other than a discretionary, uncorrupt act done in the performance of her official duties.

The distinction between a suit against the state and a suit against a state employee or official individually was observed in Florida State Hosp. v. Durham Iron Co., 194 Ga. 350, 352 (21 SE2d 216) (1942): “A sovereign State can not be sued in one of its courts except by consent of the proper authorities . . . The rule . . . related to actions . . . where the judgment will affect the State’s control over or diminish its property or assets by enforcing a liability against the same . . . ‘any suit against an officer or agent of the State, in his official capacity, in which a judgment can be rendered controlling the action or property of the State in a manner not prescribed by statute, is a suit against the State.’ and can not be brought without her consent ... A suit against a State officer or agent as an individual is not one against the State. Consequently, where State officers or agents are sued personally, the suit is generally maintainable . . .” Id. at 353. See also Crowder v. Dept. of State Parks, 228 Ga. 436 (185 SE2d 908) (1971).

Although neither the state nor any of its departments or agencies is a party defendant in this suit, it should be pointed out that the 1977 Act, to make clear that the provision of insurance to protect state employees’ personal assets was in no way to be construed to constitute a legislative waiver of the immunity of the state from suit, expressly so provided in Section 3 thereof. After adoption of the new constitution, the legislature reiterated this position in 1986 when it amended this section, which has been codified as OCGA § 45-9-5, to include the following explicit statement of its intent: “The exercise of authority provided in this article shall not constitute the provision of liability insurance protection under Article I, Section II, Paragraph IX of the Constitution.” Ga. L. 1986, p. 150.

Official immunity is not the same as sovereign immunity. As well-stated in Restatement (Second) Torts, § 895D, Comment B: “The basis of the immunity has been not so much a desire to protect an erring officer as it has been a recognition of the need of preserving independence of action without deterrence or intimidation by the fear of personal liability and vexatious suits. This, together with the manifest unfairness of placing any person in a position in which he is required to exercise his judgment and at the same time is held responsible according to the judgment of others, who may have no experience in the area and may be much less qualified than he to pass judgment in a discerning fashion or who may now be acting largely on the basis of hindsight, has led to a general rule that tort liability should not be imposed for conduct of a type for which the imposition of liability would substantially impair the effective performance of a discretionary function.”

It has been similarly stated in Georgia: “It is a well-established principle that a public official who fails to perform purely ministerial duties required by law is subject to an action for damages by one who is injured by his omission. However, it is equally well established that ‘where an officer is invested with discretion and is empowered to exercise his judgment in matters brought before him, he is sometimes called a quasi-judicial officer, and when so acting he is usually given immunity from liability to persons who may be injured as the result of an erroneous decision; provided the acts complained of are done within the scope of the officer’s authority, and without wilfulness, malice, or corruption.’ [Cit.]” Gormley v. State, 54 Ga. App. 843, 847-848 (189 SE 288) (1936). See Gray v. Linahan, supra.

Considering all of the foregoing, I fail to comprehend how Martin subjects Dr. Cooper to further maintenance of this lawsuit. If the insurance covers only non-immune acts, which is what is authorized by law, it is not involved because as the majority states, this was a discretionary act. If it does cover discretionary acts which were formerly considered immune from suit, it is not the type of insurance which waives sovereign immunity under the 1983 Constitution as this is not a suit against the state in the first place and it is not the type of insurance which the state acting through its General Assembly intends to constitute a constitutional waiver.

Decided July 31, 1987

Paul A. Dietrick, for appellants.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Mary Foil Russell, Assistant Attorney General, Bruce M. Edenfield, for appellee.

That being the case, I cannot concur in Division 5 either. In sum, I would uphold the grant of summary judgment to defendant.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    72561.
    GEORGE v. THE STATE.
    (361 SE2d 284)
    Decided September 8, 1987.

      Thomas C. Sanders, for appellant.

      Frank C. Winn, District Attorney, J. David McDade, Assistant District Attorney, for appellee.
   McMurray, Presiding Judge.

Our judgment in George v. State, 180 Ga. App. 548 (349 SE2d 473), has been reversed by the Supreme Court of Georgia on certiorari. George v. State, 257 Ga. 176 (356 SE2d 882). In accordance with the opinion of the Supreme Court, our judgment is hereby vacated and the judgment of the Supreme Court is made our own. Accordingly, the judgment of the trial court is reversed.

Judgment reversed.

Carley and Pope, JJ., concur.


author: Beasley, Judge.

text:
    73162.
    WHITE v. THE STATE.
    (361 SE2d 284)
   Beasley, Judge.

On certiorari our decision affirming the trial court in White v. State, 181 Ga. App. 354 (352 SE2d 205) (1986), has been reversed by the Supreme Court in White v. State, 257 Ga. 236 (356 SE2d 875) (1987). Accordingly, our decision is vacated and the judgment of the Supreme Court is made the judgment of this Court.

Decided September 8, 1987.

Will Ed Smith, for appellant.

Beverly B. Hayes, District Attorney, Samuel A. Hilbun, Assistant District Attorney, for appellee.

Judgment reversed.

Birdsong, C. J., Deen, P. J., McMurray, P. J., Banke, P. J., Carley, Sognier, Pope and Benham, JJ., concur.


author: Deen, Presiding Judge.

text:
    74361.
    GRIFFIN v. THE STATE.
    (361 SE2d 284)
    Decided September 8, 1987.

      Charles H. S. Lyons III, for appellant.

      Michael C. Eubanks, Solicitor, for appellee.
   Deen, Presiding Judge.

John F. Griffin’s appeal was docketed in this court on January 21, 1987. His brief and enumeration of errors were due to be filed on February 20, 1987. They were not filed, and this court ordered him to file them no later than February 23, 1987. The appellant has not responded to this order.

1. Following the authority set forth in Conyers v. State, 183 Ga. App. 591 (359 SE2d 454) (1987), this case will be reviewed and a decision made on its merits.

2. We have reviewed the record on appeal and find no error.

Judgment affirmed.

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


author: Benham, Judge.

text:
    74430.
    McLEROY v. THE STATE.
    (360 SE2d 631)
   Benham, Judge.

This appeal is from appellant’s conviction of burglary. The testimony of the arresting officer was that he heard glass breaking while on patrol; that he returned to the place where he heard that sound and found a window broken and burglar bars bent; that he shined his flashlight through the window and saw appellant; and that appellant was arrested when he exited the building through the broken window at the officer’s direction. Two issues are raised on appeal: the admission of evidence of two previous burglaries by appellant, and the trial court’s refusal to give a requested charge on criminal trespass as an included offense.

Decided September 8, 1987.

J. Douglas Willix, for appellant.

1. The evidence of similar transactions established that appellant had entered pleas of guilty to two burglary indictments 10 and 11 years prior to the present prosecution. In both those cases appellant had gained access to unoccupied buildings by forcing entrance, had stolen items from inside the buildings, and had been apprehended either inside or as he departed the building. Here, appellant had broken a window and bent burglar bars with a piece of lumber, then ransacked the premises, a doctor’s office, strewing medication around the floor. We find the prior transactions sufficiently similar to the present case to permit the admission of the evidence for the purpose of showing that appellant entered the building on this occasion with the intent to steal as he had done on both previous occasions. We also find that the passage of time since the previous burglaries was not so great as to require that the evidence be excluded. Support for our position on both issues may be found in our recent decision in Nelson v. State, 181 Ga. App. 481 (352 SE2d 804) (1987). Therefore, the trial court did not err in admitting the evidence and denying appellant’s motion for new trial.

2. Appellant filed a request with the trial court for a jury instruction concerning criminal trespass as an included offense of burglary. The refusal of the trial court to give that charge is enumerated as error.

Appellant’s request to charge purported to set out the provisions of OCGA § 16-7-21 (a) and (b) (1), which establish two different ways the offense may be committed: by intentionally damaging the property of another in an amount set by the statute or less; or by entering the premises of another for an unlawful purpose. Since there was no evidence in the present case concerning the dollar amount of the damage done to the premises entered by appellant, and since there is no evidence of any intent other than that set out in the indictment, to commit a theft, the requested charge was not supported by evidence. See Johnson v. State, 156 Ga. App. 411 (2) (274 SE2d 778) (1980); Fullewellen v. State, 127 Ga. App. 568 (194 SE2d 275) (1972). That being so, the trial court did not err in refusing to give the requested charge. Prater v. State, 171 Ga. App. 122 (3) (318 SE2d 816) (1984).

Judgment affirmed.

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

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


text:
    74465.
    RADFORD et al. v. IPD PRINTING & DISTRIBUTING, INC.
    (360 SE2d 656)
    Decided September 8, 1987.
    Arthur A. Radford, pro se.

      Susan L. Howick, for appellee.
   Beasley, Judge.

1. Defendants seek to appeal directly an order denying a motion to set aside the judgment. They have failed to follow the statutorily prescribed procedure for appealing such an order. OCGA § 5-6-35 (a) (8). The appeal must be dismissed. Goodwin v. Richmond, 182 Ga. App. 745 (1) (356 SE2d 888) (1987); Folks, Inc. v. Agan, 177 Ga. App. 480 (340 SE2d 26) (1986).

2. Plaintiff filed a motion for imposition of 10 percent damages pursuant to OCGA § 5-6-6. As in Miller v. Bank of the South, 177 Ga. App. 42, 43 (2) (338 SE2d 436) (1985), we deny the motion. We are of the opinion that we must do so, no matter how meritorious the motion may be. The statute provides for such damages in an appropriate case “upon any judgment . . . which has been affirmed.” It does not expressly authorize these damages when an appeal is dismissed. The extent of the authority is plain, giving ordinary signification to the words. OCGA § 1-3-1 (b). We cannot supply additional words. Nor can we construe plain and unequivocal words. City of Jesup v. Bennett, 226 Ga. 606, 609 (2) (176 SE2d 81) (1970).

Appeal dismissed.

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


author: Sognier, Judge.

text:
    74507.
    KEARNEY v. THE STATE.
    (360 SE2d 633)
   Sognier, Judge.

Appellant was convicted of endangering a security interest and he appeals.

Appellant contends the trial court erred by denying his motions for a directed verdict of acquittal and a new trial because the State failed to show that the bank involved had a valid security interest in the property appellant had pledged as collateral.

The evidence disclosed that in March 1983, appellant obtained a six-month loan from the Bank of Quitman and gave the bank a list of tools which were pledged as collateral for the loan. The bank prepared a financing statement showing the bank as the secured party and appellant as the debtor; the financing statement was recorded with the clerk of the Superior Court of Brooks County and contained a block showing that it covered “Tools & Equip in List Att.” However, no list was in fact attached to the financing statement that was filed and recorded, although copies of the financing statement and an itemized list of the tools covered by the financing statement were kept in the bank’s files.

At the end of six months appellant paid the interest due and renewed the note for another six months. When he was unable to pay the principal at the end of the latter period, A.C. Lowe, the bank officer handling the loan, suggested that appellant make the loan an installment loan payable on a monthly basis. Appellant agreed and signed a promissory note for $9,513.60, payable in monthly installments over a period of 48 months. In a block entitled “SECURITY INTEREST” on the note signed by appellant was the notation “List of tools in Exhibit ‘A’ In Financing Statement dated 3-29-83 File 83258 and recorded in Public Records in Brooks Co.”

Appellant made only two monthly payments on the note, and after he had missed three or four payments, Lowe talked to appellant and asked him where the tools were stored. Appellant informed Lowe that the tools were stored on a farm in Brooks County and gave Lowe directions to the farm. When Lowe went to the farm the tools were missing from the cabin in which they had been stored, and the tools have never been located. Ted Harrell, a State witness, testified that he had sold the tools to appellant, and at the time of the sale they were stored in a locked cabin on the farm to which Lowe went to retrieve the tools. Harrell also testified that appellant did not have access to the cabin, as Harrell (lessee of the farm) and the owner of the farm had the only keys. When Harrell learned that appellant’s tools were missing, Harrell checked the cabin and discovered that a screen had been cut and the door was ajar. In addition to appellant’s tools being gone, about two to three thousand dollars worth of Harrell’s tools were also missing.

Based on this evidence, appellant was convicted of endangering a security interest by unlawfully, knowingly, wilfully and intentionally concealing the tools. He contends that no valid security interest in the tools was created, because the State failed to produce any security agreement that complied with the Uniform Commercial Code—Secured Transactions. OCGA § 11-9-101 et seq.

Pretermitting the question of whether a valid security interest was created, the State presented no evidence that appellant endangered the security interest by unlawfully, knowingly, wilfully and intentionally concealing the tools in this case. On the contrary, the evidence presented by the State established that the tools were missing, presumably stolen, from a locked cabin to which appellant had no access. There was no evidence, circumstantial or otherwise, that appellant was connected with the theft or that he took any other action to conceal the tools. Hence, 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). Accordingly, we find that it was error to deny appellant’s motion for a directed verdict of acquittal. See Lee v. State, 247 Ga. 411, 412 (6) (276 SE2d 590) (1981). It follows that it was also error to deny his motion for a new trial. Although appellant did not enumerate the general grounds as error, we have followed the general rule that in exceptional circumstances, especially in criminal cases, appellate courts may, on their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings. See Almond v. State, 180 Ga. App. 475, 480 (349 SE2d 482) (1986). To allow a criminal conviction to stand when the State has presented no evidence on an essential element of the offense charged would impugn the integrity and fairness of the judicial system. Accordingly, we reverse.

Decided September 8, 1987.

Bradfield M. Shealy, for appellant.

H. Lamar Cole, District Attorney, for appellee.

Judgment reversed.

McMurray, P. J., concurs. Beasley, J., concurs in the judgment only.


author: Banke, Presiding Judge.

text:
    74541.
    BROCKMAN v. BURNETTE.
    (360 SE2d 655)
   Banke, Presiding Judge.

The appellant was injured in an automobile collision which occurred on March 14, 1984, within the city limits of Forest Park. The driver of the other car had failed to stop at an intersection at which the city normally maintained a stop sign but at which no stop sign was present on this occasion. On September 3, 1985, the appellant filed suit against the second driver and the City of Forest Park, alleging that the city had been aware that the stop sign was missing prior to the collision and had been negligent in failing to replace it.

It is undisputed that at the time of the accident the city was insured under a general liability insurance policy. The trial court granted the city’s motion for judgment on the pleadings, concluding that because the maintenance of the stop sign was a governmental function, the city was immune from liability for its alleged negligence in failing to replace it. We granted the appellant-plaintiffs application for interlocutory review. Held:

The Supreme Court’s recent decision in Martin v. Ga. Dept. of Public Safety, 257 Ga. 300 (357 SE2d 569) (1987), is dispositive of the immunity issue and mandates reversal of the grant of judgment on the pleadings to the city in the present case. Martin held that the purchase of a comprehensive liability policy insuring employees of the Georgia Department of Public Safety against liability resulting from the negligent performance of their official duties resulted in a waiver of sovereign immunity by the state to the extent of such insurance coverage. While Martin did not involve a municipality, the Court, in a footnote, overruled Robinson v. City of Decatur, 253 Ga. 779 (325 SE2d 752) (1985), and Rea v. Bunce, 179 Ga. App. 628 (347 SE2d 676) (1986), two cases wherein it had been held that the purchase of liability insurance by a municipality did not constitute a waiver of sovereign immunity under the Georgia Constitution as it existed prior to 1983. Specifically, the Court ruled that “[i]nsofar as [Rea v. Bunce, supra, and Robinson v. City of Decatur, supra] are inconsistent with 1983 Const., Art. I, Sec. II, Par. IX, they must be and hereby are overruled.” Martin, supra at footnote 1.

We recognize that when, in 1986, the Legislature amended OCGA § 36-33-1 to provide that a municipal corporation waives sovereign immunity to the extent of any applicable liability insurance coverage it has purchased, it specified that the amendment was not to be construed “to affect any litigation pending on July 1, 1986.” Ga. L. 1986, p. 1312, § 1, effective July 1, 1986. Arguably, it may be inferred from the language of this amendment that the Legislature did not intend for the 1983 constitutional provision to be self-executing, with the result that, with respect to suits filed prior to July 1, 1986, the purchase of liability insurance by a municipality was not intended to result in an automatic waiver of immunity. However, the 1983 constitutional provision is by its terms self-executing, and the Martin decision clearly stands for the proposition that, as of the provision’s effective date in 1983, it results in an automatic waiver by a municipality of the defense of sovereign immunity to the extent of any applicable general liability insurance coverage carried by the municipality. Applying the mandate in Martin to the present case, we hold that the trial court erred in granting judgment on the pleadings to the City of Forest Park.

Judgment reversed.

Carley and Benham, JJ., concur.

Decided September 8, 1987.

Warner R. Wilson, Jr., for appellant.

Brady D. Green, Neal C. Scott, for appellee.


text:
    74561.
    WILLIAMS v. THE STATE.
    (360 SE2d 634)
   Sognier, Judge.

Appellant was convicted of distributing cocaine in violation of the Georgia Controlled Substances Act, and he appeals.

1. In his first two enumerations of error appellant contends the trial court erred by denying his motion for a directed verdict of acquittal, and that the evidence is not sufficient to support the verdict. The evidence disclosed that George Halliburton was working as an undercover agent in Camilla, Georgia, when he met appellant. On April 1, 1986, appellant asked Halliburton to drive him (appellant) to the P & L Grocery in Pelham, Georgia, so he could buy some cocaine. Halliburton agreed, and gave $25 to appellant, telling him it was for a friend of Halliburton’s. On arrival at the store appellant went in a rear door while Halliburton waited outside. Appellant returned a few minutes later with two small packets of cocaine, and gave one of them to Halliburton.

Appellant argues that because Halliburton testified at trial that the drug transaction occurred at the P & L Grocery, and in his affidavit to obtain an arrest warrant stated that it occurred at “Mom’s Kitchen” in Camilla, appellant’s conviction must be set aside. He also argues that the State did not establish the existence of P & L Grocery, because the assistant city clerk of Pelham testified that no business license had been issued for such an establishment, and she had no personal knowledge of such a place although she had lived in Pelham for 43 years. These arguments are without merit.

Halliburton explained the discrepancy between his affidavit and his trial testimony, and despite the testimony of the assistant city clerk of Pelham, other witnesses’ description of the grocery store where the drug transaction took place was the same as Halliburton’s description, except for the name. He called it the P & L Grocery because that is the name appellant used when he asked for a ride to the store.

The weight of the evidence and credibility of witnesses are questions for the jury, Bryant v. State, 174 Ga. App. 468 (1) (330 SE2d 406) (1985), and this court passes on the sufficiency of the evidence, not its weight. Miller v. State, 163 Ga. App. 889, 890 (1) (296 SE2d 182) (1982). 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). Hence, it was not error to deny appellant’s motion for a directed verdict of acquittal. Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984).

Decided September 8, 1987.

Thomas G. Ledford, for appellant.

J. Brown Moseley, District Attorney, for appellee.

2. Appellant asserts error in the denial of bond pending appeal of his case. The trial court held an evidentiary hearing on appellant’s motion for a new trial and his request for supersedeas bond pending appeal. At the conclusion of the hearing the trial court found that the offense which appellant committed was a serious felony and he would be a threat to the community (if released). This finding met the requirements of Moore v. State, 151 Ga. App. 413 (260 SE2d 350) (1979) to authorize denial of bond. Hence, there was no error in the trial court’s ruling.

Judgment affirmed.

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


text:
    74570.
    In re R. L. Y. et al.
    (360 SE2d 636)
   Sognier, Judge.

This is the second appearance of appellant, the father of R. L. Y., M. R. Y., and R. A. Y., before this court. In In re R. L. Y., 181 Ga. App. 14 (351 SE2d 243) (1986), we reversed the trial court’s order of termination of appellant’s parental rights and remanded the case for further findings by the trial court in order to clarify that the trial court applied the “clear and convincing” evidentiary standard in its ruling. The trial court entered a new order terminating appellant’s parental rights and this appeal ensued.

1. We find that the evidence in the transcript and detailed in the trial court’s order constitutes clear and convincing evidence to support the trial court’s conclusions of law that the children qualify as deprived under OCGA § 15-11-2 (8), that the children are without proper parental care and control, that the mental illness which renders appellant incapable of extending such proper parental care and control is not treatable and appellant will not recover from it, and that the children will suffer serious physical, mental or emotional harm if they are restored to their father. Thus, the trial court was authorized under OCGA § 15-11-81 (b) (4) (A) to terminate appellant’s parental rights in the children. See also In re R. L. Y., supra.

Decided September 8, 1987.

Franklin E. Remick, for appellant.

W. Ashley Hawkins, Malcolm K. Sullivan, Michael J. Bowers, Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, for appellees.

2. Appellant contends the trial court erred by failing to investigate possible alternatives thoroughly before recourse to complete termination. The transcript reflects that caseworkers with the Department of Human Resources “checked out” relatives and acquaintances of the natural parents in an attempt to develop “relative placement” for the children, that all resources in this regard were “exhausted,” and that there was “nobody left” with whom the children could stay. Contrary to appellant’s assertion, the record reflects that the trial court entertained testimony regarding the possibility of placing the children in group homes, such as church-related children’s homes, and the disadvantages and probable negative impact such an impermanent disposition would have on the children. The trial court noted in its order appellant’s request to place the children in a church-related orphan’s home. However, the trial court determined that it was in the best interest of the children that appellant’s parental rights be terminated and the children be placed in the custody of the Department of Human Resources so that they could be placed permanently for adoption as soon as possible. Under the facts in this case, we find no error in the trial court’s order.

Judgment affirmed.

McMurray, P. J., concurs. Beasley, J., concurs in Division 2 and in the judgment.


text:
    74667.
    RIVERS et al. v. GOODSON et al.
    (360 SE2d 740)
   Sognier, Judge.

James and Ronald Rivers brought suit against William C. Good-son and Composite Communications Corporation seeking damages arising out of alleged harassment and interference with the operation of radio stations formerly owned by a corporation in which the Riverses were substantial stockholders. The trial court denied the Riverses’ motion to disqualify counsel for Goodson and Composite Communications, and dismissed the complaint as a sanction for the Riverses’ failure to permit discovery. This appeal ensued.

1. Appellants contend the trial court erred by denying their motion to disqualify Gary M. Christy, counsel for appellees, alleging that Christy’s representation of appellees created an “appearance of impropriety,” contravening The Canons of Ethics, Code of Professional Responsibility, Rule 3-109 (Canon 9), EC 9-3 and DR 9-101 (B). EC 9-3 provides: “After a lawyer leaves judicial office or other public employment, he should not accept employment in connection with any matter in which he had substantial responsibility prior to his leaving, since to accept employment would give the appearance of impropriety even if none exists.” 252 Ga. 637. Similarly, DR 9-101 (B) provides: “A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee.” 252 Ga. 638.

Appellants argue an appearance of impropriety exists because Christy was serving as district attorney for the Cordele Judicial Circuit when appellant James Rivers had occasion to consult with him about a possible criminal investigation related to incidents which later became the subject of this civil action. The record reflects that the meeting was brief, lasting approximately one hour, and that the district attorney’s office undertook no further action or investigation, but referred the entire matter to the sheriff’s department.

“[T]he right to counsel is an important interest which requires that any curtailment of the client’s right to counsel of choice be approached with great caution.” Blumenfeld v. Borenstein, 247 Ga. 406, 408 (276 SE2d 607) (1981). “The rules of disqualification of an attorney will not be mechanically applied; rather, we should look to the facts peculiar to each case in balancing the need to ensure ethical conduct on the part of lawyers appearing before the court and other social interests, which include the litigant’s right to freely chosen counsel. [Cit.]” Stoddard v. Bd. of Tax Assessors, 173 Ga. App. 467, 468 (1) (326 SE2d 827) (1985). The facts presented here do not indicate Christy had a “substantial responsibility” in the criminal investigation of appellants’ allegations in his former capacity as district attorney, nor have appellants demonstrated by any evidence, other than their bare assertion, how they will be harmed or prejudiced by Christy’s current representation of appellees in the civil litigation regarding this matter. Under these circumstances, we cannot agree with appellants “that such an appearance of impropriety exists here to outweigh [appellees’] interest in being represented by [their] counsel of choice.” Id. at 469 (1). We find no abuse of discretion by the trial court in denying appellants’ motion to disqualify appellees’ attorney.

2. Appellants also maintain the trial court erred by dismissing their complaint as a discovery sanction. Appellants argue the dismissal was improper because they had not failed to comply with any enforceable order of the trial court compelling discovery, nor had they totally failed to respond at the time the dismissal order was entered. We agree and reverse.

OCGA § 9-11-37 provides two avenues by which sanctions may be imposed on a party for failure to permit discovery. Where some response is made, the propounding party may seek a court order compelling further answer pursuant to § 9-11-37 (a), and only the subsequent violation of such an order authorizes sanctions under § 9-11-37 (b). Alternatively, sanctions may be sought immediately for total failure to respond to discovery requests pursuant to § 9-11-37 (d) without necessity of first obtaining a court order compelling compliance. Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 438 (254 SE2d 825) (1979).

The record reveals that appellants failed to respond to appellees’ discovery requests within the original 30-day period. Although this failure would have authorized the trial court to impose immediate sanctions, including dismissal, pursuant to OCGA § 9-11-37 (d), Mayer, supra, the trial court decided instead to grant appellees’ motion to compel discovery. Thus the trial court verbally ordered appellants on October 28, 1986 to answer appellees’ interrogatories in 10 days. It is undisputed that in the October 28 verbal order the trial court did not expressly order appellants to respond to appellees’ request for production of documents. It is further uncontroverted that in compliance with the verbal order, appellants filed their response to the interrogatories within the 10-day period granted to them. On December 23, 1986 (after a hearing on a second motion by appellees to compel discovery or for sanctions), an order was entered nunc pro tunc which purported to reduce the October 28 order to writing. The nunc pro tunc order, however, recited that appellants “have ten (10) days from the announcement of the Order, October 28, 1986, to comply fully with [appellees’] interrogatories and requests for production.” (Emphasis supplied.)

The dismissal order appealed from was entered on the same day the nunc pro tunc order was entered. The dismissal was based on three grounds. First, the trial court found appellants had failed to comply with its previous orders. However, the nunc pro tunc order was invalid insofar as it ordered compliance with appellees’ request for production of documents. “ ‘A nunc pro tunc entry is for the purpose of recording some action that was taken or judgment rendered previously to the making of the entry which is to take effect as of the former date. Such an entry cannot be made to serve the office of correcting a decision however erroneous, or of supplying non-action on the part of the court.’ [Cits.] Further, such an entry ‘cannot serve . . . to supply an order which it (the trial court) failed to make.’ [Cit.]” Beatty v. Underground Atlanta, 237 Ga. 844-845 (1) (229 SE2d 615) (1976). Hunt v. Williams, 104 Ga. App. 442 (122 SE2d 149) (1961), cited by appellees, is inapposite in that in Hunt, we held a nunc pro tunc order granting an extension of time for filing a brief of evidence validly related back to an order granting a motion for new trial from which the provision for an extension had been omitted, because “[t]he clear intendment of the court’s order nunc pro tunc was that at the time the [order] was issued the court did in fact grant the extension of time to prepare and file a brief of evidence but failed to properly record this action.” Id. at 454. Unlike the situation in Hunt, the record in the case at bar fails to indicate the trial court in fact ordered appellants to comply with the request for production of documents. Further, contrary to appellees’ argument, the rule that we will presume the regularity of proceedings in a court of competent jurisdiction, see Vaughan v. Buice, 253 Ga. 540 (322 SE2d 282) (1984), has no application here, where the transcript is included in the record, and that transcript unequivocally indicates a discrepancy between the oral order and the one later entered nunc pro tunc. Since the nunc pro tunc order was ineffective to compel production of documents, and it is clear appellants had complied with the previous order compelling answers to the interrogatories, the trial court’s finding that appellants had not complied with its previous orders is erroneous.

Second, the trial court found that appellant James Rivers’ failure to verify his interrogatory answers until December 22, 1986 constituted a total failure on his part to respond. However, the responses in the case at bar were submitted on behalf of both appellants prior to the motion for sanctions, and in compliance with the court’s previous order. Merrill Lynch &c., Inc. v. Echols, 138 Ga. App. 593 (226 SE2d 742) (1976), relied upon by the trial court, is therefore factually inapposite. In addition, unlike the responses in Merrill Lynch at 595 and those in Gregory v. King Plumbing, 127 Ga. App. 512 (1) (a) (194 SE2d 271) (1972) and Williamson v. Lunsford, 119 Ga. App. 240 (2) (166 SE2d 622) (1969), the responses were signed and verified not by counsel, but by appellant Ronald Rivers, one of the two parties. We therefore do not agree with the trial court that this constituted a willful total failure to respond on the part of appellant James Rivers.

Finally, the trial court found that the responses submitted were so evasive and incomplete as to be treated as a complete failure to answer. This finding appears to be based on OCGA § 9-11-37 (a) (3), which provides that “[f]or purposes of the provisions of this chapter which relate to depositions and discovery, an evasive or incomplete answer is to be treated as a failure to answer.” However, in Thornton v. Burson, 151 Ga. App. 456 (260 SE2d 388) (1979), under circumstances factually similar to those here, this court considered OCGA § 9-11-37 (a) (3) with respect to the imposition of the dismissal sanction. Citing Mayer, supra, we held in Thornton, supra at 461, that the “response to the order to compel — inadequate though it may be — should not have been treated as a total failure to respond under [OCGA § 9-11-37 (d)] so as to authorize the imposition of the ultimate sanction.”

Decided September 8, 1987.

Ben B. Mills, Jr., Kenneth L. Millwood, for appellants.

Gary C. Christy, David N. Rainwater, for appellees.

We recognize that a trial court has broad control over the use and limitations of discovery procedures, and unless there is a clear abuse of this discretion the appellate courts will not interfere. Jackson v. Gordon, 122 Ga. App. 657 (178 SE2d 310) (1970). Under the circumstances here, however, we are constrained to hold the trial court abused its discretion in imposing the ultimate sanction and dismissing appellants’ complaint. See Thornton, supra.

Judgment affirmed in part and reversed in part.

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


text:
    74676.
    LINER et al. v. NORTH.
    (360 SE2d 637)
   Banke, Presiding Judge.

Appellants filed suit in the Superior Court of Walker County against North, individually and as executor of the estates of Fannie and Leroy Monds. On that same date, they filed suit in the Probate Court of Walker County against North as executor of the estate of Leroy Monds. This appeal is from the grant of the appellee’s motion to dismiss the superior court action pursuant to OCGA § 9-2-5, based on the pendency of the simultaneously filed probate court action. Held:

1. Appellants contend that an attack based on simultaneous pleadings must be made by motion for summary judgment rather than by motions to dismiss. This contention is without merit. Because such an attack does not go to the merits of the underlying claim, it is more appropriately asserted by a motion to dismiss. Accord Dawson v. McCart, 169 Ga. App. 434, 435 (313 SE2d 135) (1984). See generally Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 604 (203 SE2d 173) (1974); Hilliard v. Edwards, 169 Ga. App. 808, 809 (315 SE2d 39) (1984).

2. OCGA § 9-2-5 provides in pertinent part, as follows: “No plaintiff may prosecute two actions in the courts at the same time for the same cause of action and against the same party. If two such actions are commenced simultaneously, the defendant may require the plaintiff to elect which he will prosecute.” In such a situation, the “plaintiff must select the case he will pursue and the others must be dismissed.” Clark v. Weaver, 159 Ga. App. 594, 595 (284 SE2d 95) (1981).

Decided September 8, 1987.

William G. Schwall, for appellants.

Norman S. Fletcher, Ronald R. Womack, for appellee.

“[Separate actions involve the ‘same cause’ . . . where the relief requested relates to substantially the same set of facts.” Cooper v. Public Fin. Corp., 146 Ga. App. 250, 252 (246 SE2d 684) (1978). “ ‘Generally, a single cause of action with several elements of damage admits of but one action, where there is an identity of subject-matter and of parties.’ [Cits.]” Id. at 251.

Appellants urge they are entitled to pursue the probate and the superior court actions simultaneously, both because the relief sought in each case is different and because the defendant in each case is different. We disagree. Both suits clearly involved the same defendant and the same transactions, and both sought substantially the same relief, as evidenced by the appellants’ own motion to consolidate the actions filed prior to the trial court’s ruling on the motion to dismiss. Therefore, the trial court did not err in dismissing the superior court action in the absence of an election by the appellants as to which action they intended to pursue. See Dawson v. McCart, supra. In making this ruling, we of course express no opinion whatsoever on the merits of the appellants’ underlying claim.

Judgment affirmed.

Carley and Benham, JJ., concur.


text:
    74701.
    COMBS v. EDENFIELD.
    (360 SE2d 743)
   Beasley, Judge.

Appellant Lona Combs and Mr. and Mrs. Daniel Sea entered into a sales contract and one-year lease agreement dated March 7, 1985, in regard to residential property owned by Combs in Gwinnett County. On July 21, 1985, the Seas signed a sales contract on a house in Lilburn, Georgia which another real estate agent, appellee Helen Edenfield, had showed them. Title to the Lilburn house was transferred to the Seas in September and they moved into it in October.

Ms. Combs immediately filed suit against the Seas for rental payments due, breach of the sales contract and fraud, and against Eden-field and the listing agent of the Lilburn property, who was later dismissed, for tortiously interfering with the contractual relationship between her and the Seas. After discovery defendant Edenfield was granted summary judgment, hence this appeal.

The undisputed facts underlying summary judgment are as follows: Mr. Sea was transferred by his business to Atlanta from Illinois on March 1, 1985. Between March 1 and 3, Edenfield telephoned Mrs. Sea in Illinois about selling the Seas a house in the Atlanta area; they discussed preferences and price range. On March 4 the Seas flew to Atlanta and Edenfield showed Mrs. Sea several houses that afternoon and the following day. While Mrs. Sea was out with Edenfield, Carolyn McMullan took Mr. Sea to see Combs’ house, which he liked. On March 5 or 6, Mrs. Sea advised Edenfield that Mr. Sea had seen a house he liked and she would get back in touch with her. Mrs. Sea met the next day with McMullan to look at Combs’ house. A sales contract and rental agreement on the Combs’ house were signed March 7, Mr. Sea moved in on March 10, and Mrs. Sea and the children moved on March 25.

Several weeks later Mrs. Sea called defendant Edenfield to tell her they had decided not to exercise the option on the Combs’ house because she did not like it. She asked Edenfield if she would be willing to show them other houses in the areas earlier seen. Edenfield advised Mrs. Sea to “bide it out” until they sold their residence in Illinois.

In June, Mrs. Sea called Edenfield to tell her they had a contract bid on their house in Illinois and she would get in touch with her when they got back from the closing to start looking at other houses. Mrs. Sea also asked Edenfield about the contract on the Combs’ house. According to Mrs. Sea’s deposition, Edenfield replied that she was not a lawyer and did not give legal opinions, but that she would be seeing a very good attorney the next day and would ask him to look at the documents. Edenfield stated by affidavit that when she reviewed the papers, it appeared to her the Seas had signed a lease/ purchase contract, not a lease with an option to buy as they thought. She did not recommend the law firm for the purpose of obtaining an opinion that the contract documents were unenforceable, but because she “felt it imperative that the Seas be fully advised of their rights and liabilities by competent attorneys before making a decision.” Edenfield took the documents to the law firm of the attorney she had mentioned, and Mrs. Sea made an appointment to see him but was referred to another lawyer in the firm.

On July 15, the Seas wrote Combs’ agent McMullan asking to be released from the sales contract they signed March 7 on the Combs’ property. On July 21 the sales contract on the Lilburn house which Edenfield showed them was signed, even though the Seas had been advised by the attorney that there was a 50 percent chance they might be sued on the Combs’ contract. Mrs. Sea testified that she told Edenfield that Combs “said we have a problem but you’re released.” The sale of the Lilburn house was closed on September 25, 1985, and the Seas vacated the Combs’ house in October and moved into the new house.

There is no evidence upon which to base an action for tortious interference with a contractual relationship against Edenfield. OCGA § 51-9-1. The principles regarding this tort are set out in Wometco Theatres v. United Artists Corp., 53 Ga. App. 509, 513 (2) (186 SE 572) (1936), repeated in First Mortgage Corp. v. Felker, 158 Ga. App. 14, 15 (1) (279 SE2d 451) (1981), and applied recently in Carter v. Willowrun Condo. Assn., 179 Ga. App. 257, 259 (4) (345 SE2d 924) (1986). To recover, Combs must show that Edenfield maliciously and without justifiable cause induced or procured the Seas to break their contract with Combs and thereby damaged Combs. “ ‘Maliciously’ means any unauthorized interference or any interference without legal justification or excuse . . . Luke v. DuPree, 158 Ga. 590 (124 SE 13) (1924). This tort occurs, as recognized in Wometco Theatres, supra at 514, when a “third party knowing the existence of a contract procured for his own benefit one of the parties to breach the same.”

The evidence discloses unequivocally and without contradiction that agent Edenfield did not unlawfully interfere with the contractual relationship between Combs and the Seas or procure or induce the Seas to breach the contract. While she would have an affirmative duty not to intermeddle, the evidence including all reasonable inferences favorable to plaintiff establishes that she did not violate any duty, but rather acted within the bounds of her profession as a real estate agent. She even alerted the Seas that they should obtain legal advice because they might be breaching their contract with Combs. This caution on her part is directly contrary to the theory that she induced the rupture.

It is clear, on the other hand, that before Edenfield was contacted again, the Seas were determined to move to a different location for personal reasons of their own, regardless of their having signed the contract with Combs. It is also clear that they were prepared to do this no matter what the legal consequences insofar as their contractual liabilities were concerned. Like the situation in Steele v. Cincinnati Ins. Co., 171 Ga. App. 499, 500 (2) (320 SE2d 203) (1984), it was for reasons of their own that the Seas did not buy the Combs house; the fact that the sale did not take place was not caused by any action on Edenfield’s part. As far as the evidence goes, Combs had no personal knowledge about the transactions between Edenfield and the Seas and failed to rebut the averments of Edenfield’s affidavit or to establish any facts sufficient to withstand the latter’s motion for summary judgment. See Kelson Cos. v. Feingold, 168 Ga. App. 391, 393 (309 SE2d 394) (1983). As in First Mortgage Corp., supra at 17, whether Combs is entitled to recover from the Seas is a contractual issue, and that remains pending.

Decided September 8, 1987.

Robert M. Darroch, for appellant.

T. Michael Farrell, R. Chris Irwin, Kathleen M. Pacious, for appellee.

Judgment affirmed.

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


text:
    74726.
    STEPHENS v. STOVALL & COMPANY, INC.
    (360 SE2d 638)
   Beasley, Judge.

The trial court granted judgment in favor of Stovall and Company, Inc. in its suit on account against Stephens, after the court found as a matter of law that the case had been settled, and granted the company’s motion to compel settlement. Stephens enumerates this as error on the ground that the case should have been automatically dismissed under OCGA § 9-2-60 (b) because no written order was taken in the case for more than five years.

Plaintiff filed suit on December 9, 1977. Defendant filed his answer and a motion for a more definite statement on January 11, 1978, and on April 11 an order was entered dismissing defendant’s motion for want of prosecution. Plaintiff filed an amendment to the complaint on June 26, 1981. The record over the next five years contains little other than letters from the parties’ counsel to the clerk of court requesting that the case be removed from calendars because settlement was being negotiated and the appearances and withdrawals of various counsel.

In July 1986, new counsel for plaintiff requested that the case be restipulated to the next available trial calendar. On October 16, plaintiff moved the court to compel settlement of the action or in the alternative to allow the filing as a second amendment to the complaint. Attached was a copy of a letter which plaintiff maintained evidenced acceptance by defendant in 1981 of an offer to settle. Defendant, also represented by new counsel, demanded a jury trial. On October 29, 1986, approximately eight and one-half years after the last written order filed in the case, the court entered an order of continuance to reschedule the action to a December jury calendar. Less than one month later, on November 20, the court issued judgment without a hearing, finding as a matter of law that the case was settled between the parties’ respective attorneys in August 1981. The following day, despite the judgment, defendant filed his prepared motion to dismiss and motion for summary judgment under OCGA § 9-2-60 (b). They were not ruled on, having been mooted by entry of the judgment.

Decided September 8, 1987.

James D. Hogan, Jr., for appellant.

1. OCGA § 9-2-60 (b) provides for automatic dismissal when no written order is taken for a period of five years. This is mandatory and dismissal is automatic and by operation of law. Any further action other than dismissal is a mere nullity. Bainbridge & Assoc. v. Johnson, 183 Ga. App. 784 (360 SE2d 273) (1987).

Plaintiff argues that the “five-year rule” is inapplicable because the case was compromised and settled in 1981. Even if the correspondence relied on by plaintiff was proper evidence of a settlement, this would not thwart the mandate of OCGA § 9-2-60 (b) and breathe life into the litigation.

The statutory provision “has at least the dual purpose of preventing court records from becoming cluttered by unresolved and inactive litigation and protecting litigants from dilatory counsel,. . .” Swint v. Smith, 219 Ga. 532, 534 (3) (134 SE2d 595) (1964). Certain exceptions have been made, such as a default in an action for liquidated damages or a jury verdict not reduced to judgment within the passage of five years. See Faircloth v. Cox Broadcasting Corp., 169 Ga. App. 914 (315 SE2d 434) (1984). These exceptions are consistent with the principle that in the exercise of its inherent power, a court of record has continuing jurisdiction to enter judgment on a jury verdict at any time. Moreover, a belated judgment can be made to conform to a verdict or a default in a liquidated claim without reference to evidence outside the record, which might be difficult or impossible to obtain after a case remains dormant for more than five years. Id. at 915.

Settlement, on the other hand, is an agreement between or among the parties without intervention of judge or jury. It resolves the dispute outside of the litigation. The litigation, if unpursued by the parties by even as little as an order of continuance while settlement is being processed, thereby remains unresolved and becomes precisely a situation which OCGA § 9-2-60 (b) was intended to end.

Accordingly, the case on which this appeal is based was no longer pending in the court below by operation of law well prior to the court’s judgment for plaintiff, rendering that judgment lifeless. Thus, even if the judgment were otherwise proper, which we do not decide, it cannot stand.

2. Our decision in Division 1 makes it unnecessary to address appellant’s remaining attack on the judgment.

Judgment reversed.

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

James D. Mitchell, for appellee.


text:
    74737.
    CULLEN et al. v. TIMM.
    (360 SE2d 745)
   Deen, Presiding Judge.

Appellants Cullen and Boylan were roommates of appellee Timm at Hunter Field, near Savannah, Georgia. On the evening on which the automobile collision occurred which gave rise to the action below, appellee was in his room watching television and writing a letter when Cullen and Boylan came in and suggested that he accompany them to a concert in Savannah. Appellee (somewhat reluctantly, according to his testimony) agreed to attend the concert, and the three proceeded downtown in Timm’s automobile, with Timm at the wheel. During the evening, prior to starting out for the concert, each of the three had consumed “a beer or two.”

In the course of the trip to town Timm stopped at between 15 and 20 stop signs and red traffic lights; on at least two occasions, however, according to testimony, the appellants had urged Timm not to wait until the light changed to green, but to go on through the intersection after pausing. On both these occasions Timm, seeing no traffic or “cops” in the vicinity, had acceded to Cullen’s and Boylan’s urging and had proceeded through the red light. On the second occasion, however, Timm’s car collided with an oncoming vehicle. Cullen, who according to undisputed testimony was not wearing his seat belt, was thrown from the car; Boylan, who did have his seat belt on, remained in the vehicle, but both sustained fractures, contusions, and other injuries, Cullen being the more seriously injured of the two.

At trial there was undisputed testimony that after the accident appellant Cullen, on some five or six occasions, voluntarily rode as a passenger in Timm’s car with Timm driving, and that Boylan rode with Timm at least twice. The trial court charged the jiiry on, inter alia, comparative negligence, assumption of the risk, and joint venture. The jury awarded each plaintiff/appellant $10,000 in general damages, and made additional awards to Cullen; i.e., $25,000 for future medical expenses and $15,000 for future lost earnings.

Plaintiffs moved for a new trial on the general grounds; on the ground of erroneous jury instruction on comparative negligence, duty of ordinary care, assumption of risk, and joint venture; and on the additional ground that the giving of identical $10,000 awards in general damages to both plaintiffs was so grossly disproportionate to the greater magnitude of Cullen’s injuries as to suggest bias, prejudice, gross mistake, or improper motive on the part of the jury. After denial of the motion, Cullen and Boylan now appeal, enumerating as error (1) the trial court’s overruling of the motion for new trial, with the concomitant inference of gross mistake or improper motive on the jury’s part; and (2), (3), (4), the allegedly improper instruction to the jury on comparative negligence, assumption of risk, and joint venture. Held:

1. It is well settled that such matters as negligence, ordinary care, comparative negligence, and assumption of risk are to be resolved by the jury. McKinney & Co. v. Lawson, 180 Ga. App. 550, 551 (349 SE2d 763) (1986); Eyster v. Borg-Warner, 131 Ga. App. 702 (206 SE2d 668) (1974). It is also the jury which assesses the credibility of witnesses and the weight to be assigned to the evidence. Young v. State, 232 Ga. 176 (205 SE2d 307) (1974); Armour v. State, 154 Ga. App. 740 (270 SE2d 22) (1980); Causey v. State, 154 Ga. App. 76 (267 SE2d 475) (1980).

In the instant case the record clearly indicates that the jury, after considering the evidence, found negligence on the part of defendant/ appellee Timm, in that it assessed against him a total of $60,000 in damages, $50,000 payable to appellant Cullen and $10,000 to appellant Boylan. The record also clearly indicates that the evidence authorized charges on comparative negligence and assumption of risk. The record is less clear, however, as to whether the evidence regarding joint venture was legally sufficient to authorize that jury charge. There was Timm’s testimony that the plaintiff/appellants were the instigators of the ill-fated ride; plaintiff/appellants testified that neither had his own means of transportation and routinely rode with Timm whenever going off the base, without reimbursing him in any manner for the transportation. There was also testimony that both voluntarily rode with Timm several times after the collision; that each of the plaintiff/appellants, during the ride on the crucial night, urged Timm to disregard at least one traffic signal, including the one at the intersection where the collision occurred; and that appellant Cullen was not wearing a safety belt. “It is the duty of the court to charge the jury on the law ‘as to every controlling, material, substantial and vital issue in the case.’ ” Berger v. Plantation Pipeline Co., 121 Ga. App. 362, 364 (173 SE2d 741) (1970); cited in Fowler v. Gorrell, 148 Ga. App. 573 (251 SE2d 819) (1978).

A careful review of the facts, however, shows that the “joy ride” of these three Army roommates to a local musical concert was in the eyes of the law a mutually agreed “joint trip to a concert.” Though appellee Timm indicated he had some reservations about leaving the barracks that night and some “cajoling” occurred, it is clear that the decision to drive the jeep with the two passengers was, in final import, the sole decision of Timm. Moreover, though there was a dispute in the evidence whether Timm, of his own volition and in disregard of the caution of his passengers, “ran” several red lights or ran one or two red lights only at the urging of his passengers, there is no dispute, and Timm candidly conceded, that the ultimate decision to run the red light rested solely in him. On two occasions Timm said he was not proud of the fact he had succumbed to “peer pressure,” or poor advice. Such testimony can only mean Timm recognized that it was he and he alone who held ultimate operational authority over the vehicle. To make his understanding crystal clear, Timm stated that he was the driver and the final decision was his. There was additional evidence that the two passengers were nothing more than guests in the vehicle, who contributed nothing to the costs of operation and could make nothing more than suggestions.

It is clear that in order for occupants of an automobile to be involved in a joint venture, there must be not only a joint interest in the purpose of the enterprise (in this case going to a concert) but also an equal right, express or implied, to direct and control the conduct of one another in the activity causing the injury (in this case the operation of the automobile). Holland v. Boyett, 212 Ga. 458 (93 SE2d 662) (1956); Keaton v. Fenton, 147 Ga. App. 579, 580 (249 SE2d 629) (1978). The purpose of the venture thus is not the same as the causation of the injury, and the charge on joint venture was therefore inappropriate and thus in error. It is still necessary, however, to measure that error for harm. Jackson v. Kight & Sons, 159 Ga. 584 (126 SE 379) (1924); Adrian Housing Corp. v. Lucas, 144 Ga. App. 186, 190 (240 SE2d 732) (1977).

The verdict of the jury reflects that it heard three avenues for denying liability against Timm or granting damages to Cullen and Boylan. If it believed that Cullen and Boylan contributed to their own injuries, assumed the risk of Timm’s negligence, or aided and encouraged Timm’s causative negligence, the jury was told to reduce or deny the right to recover damages. The jury perforce had to reject the probability that Cullen and Boylan were in joint control of the vehicle or necessarily had to believe that if they were, joint control merely reduced their right of recovery. The charge on comparative negligence also authorized such a reduction, and the charge on assumption of risk, if accepted; equally would prohibit a recovery. The conclusion is inescapable that the error in this charge was harmless. See McClure v. Ga. Power Co., 171 Ga. App. 257, 260 (3) (319 SE2d 93) (1984).

2. As to the disproportion allegedly inherent in the jury’s awarding identical sums ($10,000) in general damages to appellant Boylan, the less seriously injured of the two, and to appellant Cullen, who sustained more extensive injuries, the standard for the award of general damages for pain and suffering is the enlightened consciences of fair and impartial jurors. OCGA § 51-12-12; Wayco Enterprises v. Crews, 155 Ga. App. 775 (272 SE2d 745) (1980). The general rule on appeal of an award of damages is that a jury’s award cannot be suecessfully attacked so as to warrant a new trial unless it is so flagrantly excessive or inadequate, in the light of the evidence, as to create a clear implication of bias, prejudice, or gross mistake on the part of the jurors. Atlanta Transit System v. Robinson, 134 Ga. App. 170 (213 SE2d 547) (1975); Johnson v. Cook, 123 Ga. App. 302 (180 SE2d 541) (1971). Even though the evidence is such as to authorize a greater or lesser award than that actually made, the appellate court will not disturb it unless it is so flagrant as to “shock the conscience.” Kiker v. Davis, 103 Ga. App. 289 (118 SE2d 861) (1961); Brown v. Svc. Coach Lines, 71 Ga. App. 437 (31 SE2d 236) (1944). Other than the allegedly disproportionate awards themselves, plaintiff/appellants presented no scintilla of evidence, either on motion for new trial or on appeal, to substantiate an allegation of juror impropriety. Moreover, the trial court’s approval of the verdict creates a presumption of correctness that will not be disturbed absent compelling evidence. Id.; Langran v. Hodges, 60 Ga. App. 567 (4 SE2d 489) (1939).

Decided September 8, 1987.

Thomas R. Taggart, Laura A. Marcantonio, for appellants.

Richard B. Eason, Jr., Carolyn J. Kennedy, for appellee.

Although, as noted in Division 1, supra, there is some dispute as to whether appellants overbore appellee’s will in persuading him to run the traffic signals or even to go out that night at all, the evidence is undisputed that appellant Cullen was not wearing his seat belt, while appellant Boylan was. See generally Kirkland v. Williams, 172 Ga. App. 595 (323 SE2d 891) (1984). This factual distinction alone would authorize the jury in the case sub judice to take into consideration such issues as ordinary care, comparative negligence, and assumption of risk with special reference to Cullen, and to reduce accordingly what might conceivably have been a larger award of general damages. See Jordan v. Ellis, 148 Ga. App. 286 (250 SE2d 859) (1978).

We presume neither to second-guess the jury nor to urge that, on the basis of the evidence, jurors should have concluded that Cullen, although entitled to special damages because of the nature and extent of his injuries, was entitled to a larger award of general damages, also. In the light of the evidence, the award of general damages to Cullen was not so disproportionately small as to warrant the grant of a new trial.

Judgment affirmed.

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


text:
    74873.
    NELSON v. THE STATE.
    (360 SE2d 749)
   Deen, Presiding Judge.

Marshall Nelson was convicted of possession of cocaine and appeals following the denial of his motion for a new trial.

1. Appellant’s first three enumerations of error raise the general grounds. He was charged with only count five of a multiple-count indictment (trafficking in cocaine), but was convicted of the lesser included offense of possession.

The evidence showed that an undercover Drug Enforcement Administration Agent had several prior transactions with the Williams brothers, with the help of another individual who would front cocaine supplied by Bubba Bass. Finally, the agent arranged to buy four ounces of high-grade cocaine for $7,200. Willie Williams testified at trial that by the time the agent let it be known that he wanted to make the purchase, he and his brother had lost contact with Bass, but referred him to appellant. Appellant agreed to locate Bass in exchange for a cut of the cocaine. He had a telephone number by which Bass’ beeper could be contacted and went to a restaurant where he paged Bass and set up the cocaine delivery. The beeper had been rented by appellant and was listed in his name. Although he contended that he rented the beeper so his wife could contact him at work without calling on the telephone, and that he innocently left it with Bass, a jury could find that Bass, who was careful not to deal directly with the agent, conspired with Nelson to use the beeper in order to shield himself from direct involvement in a drug transaction. Bass met Williams and Nelson at the latter’s apartment, and then the men got into a car. Bass and Nelson were in the front seat, and Bass handed the drugs to Williams in the back seat who immediately left. Bass and Nelson followed Williams to a Zayre’s parking lot and observed the ensuing events from a Piggly Wiggly parking lot. Williams met the agent, an arrest followed, and Bass and Nelson left. Appellant admitted observing the drug bust, but claimed he was merely going out for dinner with Bass and did not know why they were parked in the Piggly Wiggly lot watching what was going on in the Zayre’s lot. Appellant freely admitted to the habitual use of cocaine.

From the evidence presented at trial, and construing it in favor of the prosecution, we find that a rational trier of fact could find Nelson guilty of possession beyond a reasonable doubt. Crawford v. State, 245 Ga. 89 (263 SE2d 131) (1980).

2. The trial court’s refusal to sever Nelson’s trial from that of his co-defendants was not an abuse of its discretion. Appellant argues that the multiple counts against his four co-defendants unfairly confused the jury and caused them to return a guilty verdict against him on count five.

The grant of a severance is within the sound discretion of the trial court and will not be reversed absent a showing that the joint trial constituted a denial of due process. Carroll v. State, 147 Ga. App. 332 (248 SE2d 702) (1978). The three elements that the court must consider are “(1) whether a joint trial will create confusion of evidence and law, (2) whether there is danger that evidence implicating one defendant will be considered against the other defendant despite cautionary instructions, and (3) whether the co-defendants will assert antagonistic defenses. Jones v. State, 243 Ga. 584, 586 (255 SE2d 702).” Polke v. State, 178 Ga. App. 404, 407 (343 SE2d 167) (1986).

Applying the above test to the instant case, we find that the trial court did not abuse its discretion in refusing to sever appellant’s trial. The evidence was overwhelming that Nelson took an active part in protecting Bubba Bass in procuring the cocaine and in expediting the sale of four ounces of cocaine. It is therefore unlikely that a jury returned a guilty verdict because the evidence against the co-defendants confused them. At no time did Williams or Bass predicate his defense upon the guilt of appellant. The jury was instructed that he was charged only with count five, trafficking in cocaine, in that he did (as a party) “deliver more than twenty-eight grams of cocaine,” and that they might convict him of the lesser included offense of straight possession of cocaine. He was convicted of the lesser offense of “constructive possession.” It is therefore obvious that the jury recognized that he did not actually possess the cocaine, and that it weighed the evidence against him individually and without confusion.

3. It was not error for the trial court to permit the prosecution to ask appellant about the marijuana cigarette found on the table in front of him at the time of his arrest. He claims that the question was a violation of Rule 31.3 of the Uniform Rules of the Superior Courts because he was not given the requisite notice of intent to use evidence of similar transactions against him at trial.

A similar enumeration was raised in the appeal of a co-defendant and decided adversely to him. Williams v. State, 182 Ga. App. 849 (357 SE2d 301) (1987). This situation, however, is factually different. “It is well-established that evidence of independent criminal conduct may be admitted for the purpose of showing intent, motive and the like where its relevancy and materiality outweigh any possible prejudice to the accused. [Cits.]” Mines v. State, 167 Ga. App. 766 (2) (307 SE2d 291) (1983). Moreover, during his testimony, appellant accused the arresting officer of making up a case against him in order to force him to help make a case against Bubba Bass. During cross-examination, the prosecution asked appellant if the officer found a marijuana cigarette, threw it away, and did not charge him with that offense. As this testimony was used to rebut his claim of coercion, we find that it did not violate the notice requirements of Rule 31.3. Subsection (E) of the rule states: “Nothing in this rule is intended to alter the rules of evidence relating to impeachment of witnesses.” Appellant voluntarily informed the jury on direct that he was a cocaine user and had used it on many occasions prior to his arrest. We fail to see how evidence of a marijuana cigarette which was used to rebut his claim of coercion could be harmful to him.

Decided September 8, 1987.

P. Craig Davis, for appellant.

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

4. As constructive possession may constitute trafficking, the court did not err in charging the jury accordingly. Lang v. State, 171 Ga. App. 368 (320 SE2d 185) (1984). Appellant, however, was found guilty of the lesser included offense of possession, and we find no error.

Judgment affirmed.

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


text:
    74881.
    MOORE v. FARMERS BANK OF UNION POINT.
    (360 SE2d 640)
   Deen, Presiding Judge.

For the second time this case has come before this court. On the trial level, the court found that a settlement agreement had been reached between appellant Moore, her former husband, and appellee bank. On appeal, the court remanded the case for findings of facts and conclusions of law. On remand the trial court found that a settlement agreement had been reached and that Mrs. Moore was obligated to pay the bank according to its terms. Mrs. Moore appeals on the ground that the trial court’s finding that a settlement agreement had been reached was not supported by the evidence.

This case centers on the purchase of a mobile home. The sole point of agreement appears to be that the appellant and her former husband had orally agreed to sign a promissory note provided by the appellee bank. The husband signed the note, but the wife never did. The couple entered into divorce proceedings in the Oglethorpe County Superior Court several months later. A divorce was apparently granted, although no divorce decree appears in the record.

According to the bank’s contentions, Mrs. Moore has made no payment on the note. Mr. Moore went bankrupt, and the bank filed suit against Mrs. Moore to collect on the note. The three parties, the bank, Mrs. Moore, and Mr. Moore, through their respective attorneys, corresponded in an attempt to settle the dispute. Prior to trial, counsel for the bank informed the court that a settlement had been reached. Because of a dispute over the terms of the agreement, however, the case went to trial. The trial court found that an agreement had been reached and determined the essence of the terms to be contained in a letter written by the attorney for the bank to the respective attorneys for Mr. Moore and Mrs. Moore. On remand, the trial court prepared findings of fact consisting chiefly of procedural details and reiterated its holding in favor of the bank.

Thorough scrutiny of the record, however, shows that the court’s findings of fact are not supported by competent evidence. The trial court, relying on McKie v. McKie, 213 Ga. 582 (100 SE2d 580) (1957), and Brown v. Farkas, 195 Ga. 653 (25 SE2d 411) (1943), held that “[s]ince a settlement agreement is also a contract, it must meet the same requirements of formation and enforceability as any other contract.”

In the present case there is no evidence that there was ever a meeting of the minds in regard to the essential terms of the agreement. Mrs. Moore contended that an essential term of the agreement was the procurement of mortgage insurance at a certain cost, whereas the bank argued that this was not an essential. According to Mrs. Moore, the parties had orally agreed to terms including the insurance costs, but, when the agreement was reduced to writing, the insurance was not included. No copy of the purported agreement appears in the record. Moreover, Mrs. Moore contended that the parties had agreed to a twenty-year note, but the written terms alluded to in the letter included only a ten-year note. Further, the amount of the note was disputed: the bank’s letter stated $20,000; Mr. Moore’s attorney wrote that he thought the amount owed was only $12,000 or $13,000.

Our scrutiny of the record indicates that, at most, the bank’s letter represents an offer to Mr. and Mrs. Moore. It refers to a $20,000 note at 9 percent interest to be payable over ten years. There is no letter in the record from Mrs. Moore’s attorney accepting these terms or any other evidence indicating acceptance on her part. The letter from the attorney representing Mr. Moore states that the terms seem agreeable, but he questions the amount owed. Furthermore, Mr. Moore’s attorney states that any acceptance must be conditioned on Mrs. Moore’s accepting $600 as child support in the pending divorce settlement, and alludes to a “modification” of the divorce decree. Said modification, like the original divorce decree, does not appear in the record. Thus this court, like the trial court, has nothing before it to indicate what the “agreement” actually embraced. A contract must include all of the material terms; a settlement does not exist until all of the essential terms have been agreed to. OCGA § 13-3-2.

The absence from the record of a written agreement, as well as of the divorce decree and the purported modification thereto, coupled with the parties’ disputed versions as to several of the material terms of the alleged agreement, makes it impossible for this court to determine what, if anything, the parties actually agreed to. “[T]he making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs, — not on the parties’ having meant the same thing but on their having said the same thing.” Oliver Wendell Holmes, “The Path of the Law,” 10 Harv. L. Rev. 457, 464 (March 1897).

Decided September 8, 1987.

Carol F. Lawrence, Phyllis J. Holmen, John L. Cromartie, Jr., for appellant.

J. Edward Allen, Jr., Sandra M. Baumwald, for appellee.

The trial court erred in ruling that the bank was entitled to enforcement of the settlement agreement, in that there was no existing agreement to be enforced; and in making a ruling on the basis of insufficient competent evidence.

Judgment reversed.

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


text:
    74891.
    DAVIS v. BEARD.
    (360 SE2d 642)
   Deen, Presiding Judge.

In September 1985 the appellant, Rex Davis, purchased a boat, motor, and trailer from the appellee Rex Beard. Shortly after the purchase, Davis had to have expensive repair work on the outboard motor. Subsequently, Davis commenced this action against Beard, alleging breach of express warranty as to the condition of the boat and motor, and fraudulent concealment of the defect (a crack in the foot of the motor) which had to be repaired. Davis here appeals from the trial court’s grant of summary judgment for Beard. Held:

Beard supported his motion for summary judgment with an affidavit in which he stated that he made no warranties other than the motor was in running condition, and that there was no crack in the foot of the motor at the time of the sale. In response to this evidence, Davis submitted his own affidavit, in which he merely stated that (1) he purchased the boat from Beard; (2) Beard had executed a bill of sale, witnessed by Beard’s father; and (3) he had dealt directly with Beard in purchasing the boat. In granting summary judgment for Beard, the trial court found that Davis’s affidavit simply failed to rebut Beard’s evidence which defeated Davis’s claims, and we agree.

Decided September 8, 1987.

Billy C. Mathis, Jr., for appellant.

Robert B. Langstaff, for appellee.

The trial court was so obviously correct, in fact, that this court is compelled to regard this appeal as frivolous. Accordingly, pursuant to Court of Appeals Rule 26 (b), we assess against the appellant a penalty of $200 for filing a frivolous appeal.

Judgment affirmed.

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