text:
    (445 SE2d 292)

      A92A2068.
    GARLAND v. THE STATE.
    (445 SE2d 567)
   Judge Harold R. Banke.

The appellant was convicted of rape, incest, aggravated child molestation, kidnapping and aggravated sodomy of his five-year-old niece. He appeals from the denial of his motion for new trial.

1. This Court previously transferred this appeal to the Supreme Court because of an equal division of judges in regard to whether the trial court erred in refusing to excuse a juror for cause. The Supreme Court found no abuse of discretion by the trial court and returned the case to this Court for determination of issues not previously addressed. Garland v. State, 263 Ga. 495 (435 SE2d 431) (1993).

2. During jury selection, the trial court requested a list of witnesses from both the prosecutor and defense counsel to use in qualifying the jury. Although the trial court later instructed the jury on the presumption of innocence and the State’s burden of proof, the appellant contends that this request was burden-shifting because it created an inference that he had a duty to present witnesses and evidence at trial.

However, where the panel of potential jurors is exposed to a prejudicial remark or question, the two appropriate remedies are either a postponement until a new panel of jurors can be selected or a challenge to the poll. Swint v. State, 199 Ga. App. 515 (1) (405 SE2d 333) (1991). Inasmuch as the appellant neither objected to the trial court’s request nor sought either of the appropriate remedies for a prejudicial remark, he has not preserved this issue for review. See Gee v. State, 210 Ga. App. 60 (3) (435 SE2d 275) (1993).

Decided June 21, 1994.

Megan C. De Vorsey, for appellant.

Lewis R. Slaton, District Attorney, Vivian D. Hoard, Assistant District Attorney, for appellee.

3. No reversible error resulted from the trial court’s jury instruction that aggravated sodomy may be committed by acts involving the sex organ of one and the mouth or anus of another, as set forth in OCGA § 16-6-2 (a), notwithstanding the fact that the indictment and evidence only involved acts of oral sodomy. “ ‘It is not usually cause for a new trial that an entire Code section is given . . . even though a part of the charge may be inapplicable under the facts in evidence.’ [Cit.] In this case the lack of any evidence or contention that [the appellant] committed [aggravated sodomy] in any way or manner other than that alleged in the indictment eliminates any reasonable probability that the jury convicted [him] of [aggravated sodomy] in a manner that was not alleged in the indictment. Thus, any possible error resulting from the trial court’s inclusion of the extraneous words is harmless beyond a reasonable doubt. Childs v. State, 257 Ga. 243, 253 [17] (357 SE2d 48) (1987); [Cit.]” Wilson v. State, 211 Ga. App. 486, 488 (2) (439 SE2d 701) (1993).

4. We also reject the appellant’s contention that the counts of aggravated child molestation and aggravated sodomy were based on a single sexual act and should be merged. The victim’s testimony and other physical evidence clearly showed two incidents of sodomy, one occurring prior to the rape and one afterward. “ ‘Under OCGA § 16-1-6 (1), offenses merge as a matter of fact only if one of them is established by proof of the same or less than all of the facts used to prove the other.’ [Cit.] . . . ‘The evidence of neither offense being necessary to prove the other, there was no merger. (Cits.)’ [Cit.]” Powell v. State, 210 Ga. App. 409, 412 (5) (437 SE2d 598) (1993).

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A94A0118.
    THE STATE v. TULLIS.
    (445 SE2d 282)
   Smith, Judge.

Windell Clarion Tullís was indicted for misdemeanor theft by shoplifting, OCGA § 16-8-14, and violation of oath by a public officer, OCGA § 16-10-1, a felony. The trial court granted Tullis’s motion to dismiss the count of violation of oath by a public officer, the State appeals, and we affirm.

It is undisputed that Tullís, a City of Winder police officer, took a candy bar from a convenience store without paying for it. However, the offense of violation of oath by a public officer requires more than the commission of a misdemeanor by a public officer.

OCGA § 16-10-1 provides: “Any public officer who willfully and intentionally violates the terms of his oath as prescribed by law shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than five years.” The oath allegedly administered to Tullís is as follows: “I, W. C. Tullís, do solemnly swear that I will discharge all the duties as an officer of the City of Winder devolving upon me in the capacity of police officer and will perform all the duties devolving upon me as such an officer of the City of Winder without fear or favor or affection to any person or persons, and to perform my duties to the best of my ability, so help me God.”

The State contends that the commission of a misdemeanor while on duty constitutes a violation of Tullis’s oath of office, because he implicitly swore to uphold the laws of the State of Georgia. However, this interpretation of the law effectively would render any commission of a misdemeanor by a police officer a felony under OCGA § 16-10-1. For example, a police officer could be subject to a felony prosecution for failure to obey a traffic signal, OCGA §§ 40-6-20 and 40-6-1, or catching nine rainbow trout, one more than the creel limit, OCGA §§ 27-4-10 and 27-1-38.

Previous decisions uniformly require some connection between the offense and the public officer’s official duties. See, e.g., Poole v. State, 262 Ga. 718 (425 SE2d 655) (1993) (police officer pawned a firearm seized during an automobile stop to pay his personal water bill); Gober v. State, 203 Ga. App. 5 (416 SE2d 292) (1992) (state trooper raped a motorist whom he arrested for DUI); Freeman v. State, 184 Ga. App. 678 (362 SE2d 413) (1987) (sheriff appropriated county funds for his own use); Chastain v. State, 177 Ga. App. 236 (339 SE2d 298) (1985) (tax commissioner appropriated public funds for his own use); State v. Greene, 171 Ga. App. 329 (320 SE2d 183) (1984) (court clerk did not collect and remit payments made to the court); Nave v. State, 171 Ga. App. 165 (318 SE2d 753) (1984) (district attorney charged with bribery).

It is also significant, as the trial court observed, that the remainder of the article in which OCGA § 16-10-1 appears explicitly addresses conduct of public officers and employees directly connected with their official duties. Criminal statutes are strictly construed, particularly those which are made penal in conjunction with another statute, Beckman v. State, 229 Ga. 327, 331 (3) (190 SE2d 906) (1972). We cannot conclude from the language or the context of the enactment that the General Assembly intended to place every misdemeanor committed by a public officer within the scope of OCGA § 16-10-1. The trial court did not err in dismissing Count 1 of the indictment.

Decided May 16, 1994

Reconsideration denied June 21, 1994

Timothy G. Madison, District Attorney, Jeffrey G. Morrow, Assistant District Attorney, for appellant.

Michael J. Anderson, for appellee.

Judgment affirmed.

Pope, C. J., and McMurray, P. J., concur.

       A police officer is a “public officer” within the meaning of OCGA § 16-10-1. Poole v. State, 262 Ga. 718 (425 SE2d 655) (1993).


author: Johnson, Judge.

text:
    A94A0641.
    SOUTHERN MUTUAL INSURANCE COMPANY v. MASON et al.
    (445 SE2d 569)
   Johnson, Judge.

We granted Southern Mutual’s application for interlocutory review of the trial court’s denial of its motion for summary judgment in a declaratory judgment action. Southern Mutual sought a determination that it was relieved of its obligations under a homeowner’s liability policy because the shooting death giving rise to the claim was the result of an expected or intended act of the insured within the express terms of an exclusion contained in the subject insurance policy. We affirm the denial of summary judgment.

The events giving rise to this action are as senseless as they are tragic, and illustrate the fatal consequences which all too often result from the volatile mix of teenagers and handguns. The facts as presented herein are viewed in the light most favorable to the non-moving party as required, and are taken from the deposition testimony of Stuart Placeres. OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Chip Mason was a friend of Terry Placeres, and was known to Terry’s 15-year-old brother, Stuart. On the date of the shooting incident which underlies this action, Mason went to the Placereses’ home seeking money from the boys after an argument with his mother. Mason told the brothers that he was running away from home and that is why he needed money. Mason had a handgun in his possession, which he allegedly admitted having stolen from the home of a retired police officer. Mason showed the gun to Stuart Placeres. Placeres told Mason to be sure the gun was not loaded, and Mason removed the bullets from the gun before handing it to Placeres. Placeres placed the bullets in a closet.

Later in the evening, Stuart Placeres and Mason argued because Placeres believed Mason had stolen money from him. Placeres picked up the gun and told Mason that he was not going to leave until Mason returned his money. Mason denied having taken the money. Placeres threatened to retrieve the bullets from the closet, but Mason offered him a bullet which he had in his pocket. Placeres loaded the bullet into the gun. He believed at the time that he had loaded the bullet in a position in the revolver’s cylinder which would rotate away from the hammer if the trigger was pulled so that the gun would not fire. The verbal exchange between the two continued. Placeres admitted that he pointed the gun at Mason, who told Placeres again that he did not have the money and asked “so what are you going to do, shoot me?” Placeres admitted that at this point he intentionally pulled the trigger, and did so knowing that the gun was pointed at Mason at the time. The gun fired, and Mason was killed. Originally charged with murder, Placeres pled guilty in Juvenile Court to committing a delinquent act which amounted to the crime of involuntary manslaughter.

1. The first issue in this case concerns the meaning and application of an exclusion in the subject insurance policy. The exclusion reads as follows:

“SECTION II - EXCLUSIONS

“1. Coverage E — Personal Liability and Coverage F — Medical Payment to Others — do not apply to bodily injury or property damage:

“a. which is expected or intended by the insured.”

It is not disputed that Stuart Placeres is an “insured” under the policy definition. This court has previously held that the language of such “expected and intended” exclusions is “plain, unambiguous, and capable of only one reasonable interpretation.” Stein v. Mass. Bay Ins. Co., 172 Ga. App. 811, 812 (324 SE2d 510) (1984). Therefore, if the injury and subsequent death of Chip Mason was either expected or intended by Stuart Placeres, the subject insurance policy provides no coverage.

It is undisputed that Placeres intended to pull the trigger of a loaded gun, an instrument capable of inflicting serious injury or death, while he was pointing the gun at Mason. Placeres readily admits that he pulled the trigger of the gun in order to frighten Mason, but he emphatically denies any intent to hurt or kill Mason. In effect, Placeres argues that the death of Mason was an accident covered by the policy because he did not “expect or intend” for the gun to actually fire.

In a case recently decided by this court, Stinson v. Allstate Ins. Co., 212 Ga. App. 179 (441 SE2d 453) (1994), we held that if the consequences of an intentional or criminal act were foreseeable by a reasonable person, as opposed to by the insured, coverage for the resulting injury was barred by the exclusion. While factually the instant case may seem even more favorable to the insuror than Stinson, the specific language of the exclusion at issue in the Stinson case is much broader than the language of the exclusion here. There, the exclusion applied the “intentional or criminal” modifiers to the act of the insured rather than to the resulting injuries. In cases having the same or substantially similar language as employed in the exclusion in this case, we have held that intent in the context of the exclusion contemplates not only the commission of the act, but the consequences thereof. Thus, in decisions such as Ga. Farm Bureau &c. Ins. Co. v. Machett, 207 Ga. App. 588 (428 SE2d 636) (1993), which follows a line of cases beginning with Stein v. Mass. Bay Ins. Co., supra, we held: “ ‘[A]n insured who knowingly shoots another, but who does so in self-defense, causes bodily injury “expected or intended by the insured.” ’ [Cit.]” Machett at 589. In other words, there was no coverage because the injury was expected or intended, and it made no difference that the act which produced the injury was in self-defense. The essential element, which is present in Machett and its precursors, is that the weapon was intentionally wielded for the purpose of injuring the victim, and therefore the exclusion applied. In this case, a genuine issue of material fact exists as to whether the weapon was wielded for the purpose of frightening the victim into returning money after it had been loaded in such a fashion that the insured believed would prevent it from firing, or whether it was wielded for the purpose of injuring the victim. If one has loaded a gun in such a manner as to reasonably believe that the gun will not fire, an injury which results from the gun firing is neither expected nor intended. See Ga. Farm Bureau &c. Ins. Co. v. Hurley, 190 Ga. App. 546 (379 SE2d 420) (1989) and Southern Guaranty Ins. Co. of Ga. v. Saxon, 190 Ga. App. 652 (379 SE2d 577) (1989). In Saxon, supra, the issue was the availability of coverage for injuries sustained following a high-speed chase, in which the driver articulated that his intent had been to elude police. That case is not distinguishable from the case under consideration except insofar as the dangerous instrumentality which produced the injuries was an automobile rather than a handgun.

This case also differs factually from Thompson v. Prudential Ins. Co. of America, 84 Ga. App. 214 (66 SE2d 119) (1951) in that the insured in Thompson, engaged in a game of “Russian Roulette,” made no attempt to ascertain the position of the cartridge in the cylinder, whereas in this case, according to his testimony, Placeres placed the bullet into the cylinder in such a position that he believed the gun would not fire. Though pulling the trigger of a loaded gun which is pointed at another is an inherently dangerous activity, if Placeres did in fact believe he had loaded the bullet so that the cylinder would rotate away from the hammer so that the gun would not fire, there would be a basis for a jury to conclude that no physical injury had been “expected or intended” by Placeres when he acted.

In considering a motion for summary judgment, this court as well as the trial court must construe the evidence and all reasonable inferences therefrom in favor of the respondent. Lau’s Corp., supra. Applying that rule in the instant case, we cannot say as a matter of law that Placeres’ actions were so reckless as to make the resulting injuries intentional or expected within the meaning of the exclusion. The trial court correctly denied Southern Mutual’s motion for summary judgment as to the exclusion.

Decided June 21, 1994.

Long, Weinberg, Ansley & Wheeler, James H. Fisher II, Laura V. Semonche, for appellant.

2. Southern Mutual also asserts that summary judgment should have been granted because the insured’s refusal to give a statement as required by the insurance policy voids coverage as a matter of law.

“It is well established that the insured has a duty to cooperate with his insurer in all aspects of a lawsuit and to make a full, fair, complete, and truthful disclosure of all facts relating to the accident. [Cit.]” Hurston v. Ga. Farm Bureau &c. Ins. Co., 148 Ga. App. 324, 325 (1) (250 SE2d 886) (1978). There is no requirement, however, that the insured give a statement immediately upon demand. Southern Mutual complains that Placeres declined to be interviewed, on the advice of his attorney, while criminal charges were still pending against him. There is nothing in the record before us indicating that Placeres declined to cooperate upon the resolution of the criminal charges. “Willfulness and fraud are essential ingredients to substantiate the defense of failure to co-operate.” State Farm Mut. Auto. Ins. Co. v. Wendler, 117 Ga. App. 227, 231 (160 SE2d 256) (1968). Neither of these ingredients is present in this case. Further, there has been no showing that Placeres’ conduct adversely impacted upon Southern Mutual’s ability to proceed in this action or to protect its rights as to the claim. “The non-cooperation must, of course, have been material — not merely technical or inconsequential in nature.” (Citation and punctuation omitted.) St. Paul Fire &c. Ins. Co. v. Albany Emergency Center, 184 Ga. App. 469, 471 (361 SE2d 687) (1987). We conclude that the delay in obtaining a statement was immaterial under the particular facts of this case. The trial court did not err in denying Southern Mutual’s motion for summary judgment on this issue.

3. Finally, Southern Mutual asserts that the trial court erred in denying its motion for summary judgment because it received oral rather than written notice of the accident or occurrence as contemplated by the policy. Where it is uncontroverted that the insurance company had actual notice of the claim, albeit not in the form specified in the policy, and there has been no showing that the insurance company was in any way prejudiced by receiving oral rather than written notice, this court has held that there is at least a jury question as to whether there was a waiver of the written notice requirement. See Continental Cas. Co. v. Parker, 161 Ga. App. 614, 617 (2) (288 SE2d 776) (1982); Gregory v. Allstate Ins. Co., 134 Ga. App. 461 (214 SE2d 696) (1975). The trial court did not err in denying summary judgment on this ground.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.

Davis & Sissel, Kenneth M. Sissel, Moffett & Henderson, John W. Henderson, Jr., D. Kevin Wheeler, for appellees.

       At another point in his testimony Placeres indicates that he cannot say if he was aiming (as opposed to pointing) the gun at Mason.

         Hurley serves as physical precedent only, having been decided by a strongly divided court with only four judges concurring in the majority opinion.


author: McMurray, Presiding Judge.

text:
    A94A0484.
    LAMPKIN v. THE STATE.
    (445 SE2d 324)
   McMurray, Presiding Judge.

Defendant was tried before a jury and convicted of robbery by intimidation. A hearing was conducted immediately before trial on defendant’s motion to suppress the testimony of Suzanne Raborn, the only eyewitness who identified defendant as perpetrator of the crime charged. Investigator Charles Reid Crider of the Columbia County Sheriff’s Office then testified that Ms. Raborn identified defendant in a photo line-up as perpetrator of the crime charged. Defense counsel argued that the photo line-up was impermissibly suggestive and that, during the calendar call two days before trial, the State’s attorney “took [Ms. Raborn] back into the lock-up without my presence violating [defendant’s] constitutional rights and . . . totally tainted the identification of my client. . . .” The trial court then made the following inquiry:

“THE COURT: [What] explanation do you have for that kind of conduct? [STATE’S ATTORNEY]: Yes, sir. First of all, I think I did violate a constitutional right, but I wouldn’t say I violated all of his constitutional rights. I called [defense counsel] yesterday and apologized. I was not aware that. . . the law was that the defense attorney was entitled to be present after indictment. I am now aware of that. I informed [defense counsel] at that time I was not even going to go into that line-up. I had never planned to ask on the stand if she had seen him Monday back in lock-up as a second line-up. I was not even going to say that and I told [defense counsel] that at that time. That’s not even at issue here. I understand I cannot use that, although if [defense counsel] had been back there it certainly would have helped my case. ... I would say for the record there were four black males in the lock-up area. They were all seated, none of them were standing. We did not go into the room. [Ms. Raborn] merely walked past the doorway. She had indicated to me, asked me if the defendant was going to be in court and I told her I thought he would and then when he never walked out, I said, ‘Do you want to go back there?’ and she said, ‘Yes.’ ” The trial court denied defendant’s motion to suppress, but later granted defendant a new trial.

Defendant filed another motion to suppress the testimony of Suzanne Raborn, asserting the same argument raised at the earlier motion to suppress hearing at defendant’s first trial. The trial court denied this motion and the case proceeded to the new trial. Dawn Michelle Davis then testified that a black man wearing a stocking mask came into her place of employment, Silverstein’s Cleaners, at about 4:45 in the afternoon on July 20, 1991, “threw a white Hardee’s bag at [Davis] and told [her] to fill it up with money and [that] if [she] did anything he would shoot [her].” Davis testified that she put about $200 in the white bag and that the masked man then “came from behind [her], took the money from [her] and told [her] to lay down on the floor, not to move, not to do anything; if [she] did he would blow [her] head off.” Davis testified that she complied; that the robber fled and that she summoned law enforcement authorities.

Suzanne Elaine Raborn testified that she was working in her floral shop near Silverstein’s Cleaners during the afternoon of July 20, 1991, and that she witnessed defendant pacing outside her store immediately before the robbery. Specifically, Ms. Raborn testified as follows: “Okay, it was about 4:30 in the afternoon. The reason I remember the time is because my daughter was sixteen at the time and she had a part-time job at Kroger as cashier and . . . her shift started that afternoon at 4:15. She had just left the store. We closed the shop earlier that day because we usually stayed open on Saturday til noon or a little later. And I worked in the shop that afternoon because she had a later shift. I was standing at my work table at this time and noticed out of the corner of my eye someone walking down the walkway outside the front door. I looked up to see who it was or where they were going because it was unusual that time in the afternoon for someone to be on that end of the shopping center because we were closed, unless they were going to Silverstein’s. . . . The person came to the front door and stopped, but they were not facing the front door. . . . They stopped and my initial impression was that they were going to knock on the door, wanted something from the shop, but they didn’t... he didn’t. Q. What was the general description of this person who was stopped outside your window? A. It was a male, black skin, medium tone complexion; he was about, I would say he was between 5T1" and 6T". He was standing at the door, but then he began to pace to the right side and then to the left side. I realized then that he was either waiting for someone or he wasn’t just standing there. The longer he stayed the more antsy he became. He would look down towards Kroger and then he would turn and look to the left hand side, Silverstein’s way, which is right at the end of the walk way. At that point I became suspicious of him so I walked up towards the front of the shop. I had an old piano that was stripped down and I had it like a desk and I used it for a display. I stood to the right of the piano kind of crouched down where I could not be seen because I just wanted to watch him. And he stood . . . continued to kind of watch and walk back and forth as if he was waiting or upset because someone had not picked him up, but at this point he was getting more upset or more antsy. Q. How far were you from him when you moved to the front of the store? A; Okay, the piano was located about fifteen feet from the front glasses. . . . Q. Okay, what were the lighting conditions in this store and immediately outside . . . ? A. It was very bright light. It was very hot, sunshiny afternoon so you could easily see outside. . . . Q. Okay. All right, what else did you notice about this individual’s behavior at this point? A. When I got up to the piano he was still pacing sort of to the right and then to the left. Then he walked over to the left of my front door, which was in front of another display that I had. At that point he stopped and turned and faced towards the end of the walk way, which would make his left side to the front of my store. At that point I walked from the piano over behind a screen that I used behind an old mantle piece as a display. It was an oriental screen; it was not opened completely stretched out. I had it kind of an accordion . . . kind of in the shape of a ‘w.’ I could stand behind it an [sic] look between the hinged cracks and watch him. I would say then I was probably about eight feet from him at that point. . . . [0]ne of the things that made him seem suspicious to me was that he had a small white Hardee’s paper bag in his left hand. He was just holding on to the top of it. Because of the light shining through it you could tell there was nothing in it. But, it was a very small bag and he continued the entire time to hold this into his left hand. ... At the point that he went in front of the left side of my store and stopped he was holding the small paper bag in his left hand, but he looked down towards his right pocket and with his left hand he went over to his right pocket and kind of went over as if trying to get something out of his right pocket. I could not see his right pocket at that time because he had turned like this and I was over here. He reached into his right pocket and pulled out a stocking, which was a ladies hosiery, where it had been cut off and tied and he went with both hands and pulled it over his face. And at that point, immediately, as soon as the stocking started coming over his face he ran next door to Silverstein’s. Q. Okay, before he put the stocking over his face were you able to get a look at him, a look at his face? A. He never turned and faced me like you are facing me now, but I saw three quarters of both sides of his face. . . . Q. Okay, and what did his face look like, was there anything unusual about him? A. There was no facial hair. Hair was very short, very clean cut, medium tone skin. . . . Q. How long was this individual standing outside your store for? A. I would say about two and a half minutes, three minutes maximum. . . . Okay, did you remember what he looked like? A. Yes, I do. Q. Okay, do you remember August 6, 1991, some investigators coming to your store to show you some pictures? A. Yes, I do. Q. Okay, I’m going to show you State’s exhibit number six and ask you if you recognize this exhibitf,] are these the pictures that you were shown on August 6,1991? A. Yes, they are. . . . Q. [Were] you able to make [an] identification, pick one of these pictures out as the man you had seen that afternoon? A. Yes, I did[, number] five. Q. . . . Ms. [Raborn] did you hesitate in any way or were you unsure at all that the man pictured in number five was the man that was outside your store that afternoon? A. No, I wasn’t. Q. Ms. [Raborn], the man that was pacing outside your store that afternoon is he present in the courtroom today? A. Yes, he is. Q. Can you please identify him? A. Yes, it’s the individual right there. [STATE’S ATTORNEY]: Let the record reflect she has identified the Defendant.”

The jury found defendant guilty of robbery by intimidation. This appeal followed the denial of defendant’s motion for new trial. Held:

1. In his first and second enumerations, defendant contends the trial court erred in allowing Ms. Raborn to testify at trial in light of the unconstitutional and impermissibly suggestive pretrial identification procedures. These enumerations are without merit. See Jacobs v. State, 207 Ga. App. 714 (1) (429 SE2d 256).

“Pretermitting whether the pretrial photographic and [showup procedures] to which [Ms. Raborn] was subjected was unduly permissive (see generally State v. Frye, 205 Ga. App. 508, 509 (2) (422 SE2d 915)) [, the controlling issue] is whether any procedure resulted ‘in a very substantial likelihood of irreparable misidentification.’ The factors to be considered in evaluating whether a very substantial likelihood of irreparable misidentification exists, under the totality of the circumstances include: ‘(a) the opportunity of the witness to view the criminal at the time of the crime, (b) the witness’ degree of attention, (c) the accuracy of the witness’ prior description of the criminal, (d) the level of certainty demonstrated by the witness at the confrontation, and (e) the length of time between the crime and the confrontation. Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401).’ (Punctuation omitted.) Phillips v. State, 204 Ga. App. 698 (2) (420 SE2d 316).” Montgomery v. State, 210 Ga. App. 147, 148 (3a) (435 SE2d 510).

In the case sub judice, Ms. Raborn’s testimony reveals that she had ample opportunity to view the man who masked himself just before entering Silverstein’s Cleaners on July 20, 1991; that her degree of attention was focused because of the man’s suspicious behavior; that her physical description of defendant was specific at the time of the initial police investigation; that she was certain of her identification of defendant at the photographic line-up and that the photographic line-up was conducted three weeks after commission of the crime charged, “a reasonable cooling-off period but not so long as to impair her memory.” Montgomery v. State, 210 Ga. App. 147, 148 (3a), 149, supra. Further, the degree of detail Ms. Raborn gave at trial regarding the sequence of events before defendant’s appearance at the crime scene bolsters the reliability of her identification of defendant as the perpetrator of the crime charged. Consequently, since there existed no substantial likelihood of irreparable misidentification due to the pretrial identification procedures used in the case sub judice, the trial court did not abuse its discretion denying defendant’s motion to suppress and in allowing Ms. Raborn’s testimony at trial.

Decided June 7, 1994

Reconsideration denied June 22, 1994.

Samuel W. Cruse, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

2. In his final enumeration, defendant contends the evidence was insufficient to support the jury’s verdict. This contention is without merit. Dawn Michelle Davis’s testimony regarding the perpetrator’s threats and intimidation during the robbery of Silverstein’s Cleaners on July 20, 1991, and Suzanne Elaine Raborn’s testimony regarding defendant’s activities outside Silverstein’s Cleaners just before the robbery supports the jury’s finding that defendant is guilty, beyond a reasonable doubt, of robbery by intimidation as charged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Hogan v. State, 210 Ga. App. 122 (1), 123 (435 SE2d 494).

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


text:
    A94A0618.
    MALEARE et al. v. PEACHTREE CITY CHURCH OF CHRIST, INC.
    (445 SE2d 321)
   McMurray, Presiding Judge.

Cherlyn Maleare and James Maleare filed an action against Peachtree City Church of Christ, Inc. (“the church”) for damages allegedly sustained after Cherlyn Maleare fell from a recreational “swing” located on the church’s property. The Maleares allege that their damages are “a direct proximate result” of the church’s failure to exercise “ordinary care in keeping the premises and the improvements thereto safe.” The church denied the material allegations of the complaint and filed a motion for summary judgment. The undisputed evidence reveals the following:

For several years, Cherlyn Maleare and her spouse, James Maleare, were members of the church and regularly gave money in support of its operations. Cherlyn Maleare also worked at a school operated on church premises and was instrumental in acquiring additional playground equipment for the school. To this extent, Cherlyn Maleare and another school employee raised funds and borrowed money and Cherlyn Maleare was present when the church pastor, Charles Thompson, discussed installation of the equipment with recreational equipment suppliers. During these negotiations, a salesman informed the pastor that a set of existing swings on church property needed repair. Cherlyn Maleare heard this warning and the salesman gave Charles Thompson a new seat for one of the swings. The pastor installed the seat and executed other repairs on the swing set.

Pursuant to express authority, Cherlyn Maleare conducted a birthday party for her child at the church on April 3, 1990. The festivities fatigued Cherlyn Maleare so she sat in the swing with the new seat and rested. James Maleare then approached his wife from behind and pushed the swing. Cherlyn Maleare arched forward and then swung back. James Maleare pushed again and, as the swing neared its apex, a clamp (securing the seat of the swing to a chain) broke and Cherlyn Maleare was ejected to the ground. She was severely injured.

The trial court granted the church’s motion for summary judgment based in application of the Recreational Property Act, OCGA §§ 51-3-20 through 51-3-26. This appeal followed. Held:

1. “ ‘The purpose of the (Recreational Property Act) is to encourage property owners to make their property available to the public for recreational purposes by limiting the owners’ liability. OCGA § 51-3-20. OCGA § 51-3-22 provides “an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes.” As a prerequisite to immunity under the (Recreational Property Act), the owner cannot charge a fee for admission to the property. OCGA § 51-3-25.’ (Parenthetical citations omitted.) Cedeno v. Lockwood, Inc., 250 Ga. 799, 801 (2) (301 SE2d 265) (1983). The Recreational Property Act applies to both private owners of land as well as public owners of land. Stone Mountain Mem. Assn. v. Herrington, 225 Ga. 746 (2) (171 SE2d 521) (1969).” Welch v. Douglas County, 199 Ga. App. 269 (1) (404 SE2d 450).

The circumstances in the case sub judice appear to bring the church within the protection of the Recreational Property Act. Specifically, it is undisputed that church grounds and fixtures are open to the general public; that the members of the public often use the school’s playground equipment for recreation; that neither the church nor the school prevent access to the recreational fixtures; that the church has never charged a fee for such use of its property and that the Maleares were not charged when they used the church’s premises for their child’s birthday party. However, the Maleares argue that these circumstances do not invoke the Recreational Property Act because they were “paying members” of the church and because the church never gave the public express permission to use its property. These arguments are without merit.

(a) Fee Must Not Be Charged. “As a prerequisite to immunity under the [Recreational Property Act], the owner cannot charge a fee for admission to the property. OCGA § 51-3-25 ([formerly] Code Ann. § 105-408).” Cedeno v. Lockwood, Inc., 250 Ga. 799, 801 (2), supra. In the case sub judice, there is no indication that the Maleares regularly gave money to the church in exchange for access to church property or that the church required any sort of donation for use of church property or admission into the church. Cherlyn Maleare merely deposed that, “[a]s members of the church, we regularly paid money to the church.” Moreover, Cherlyn Maleare testified (in her deposition) that the church pastor and a church elder granted permission for her to conduct a birthday party on church grounds and that no fee was required for her use of church property. These undisputed facts and the absence of evidence that the church required any person to give money to support its cause forecloses issues of fact (genuine or otherwise) regarding lack of immunity under the Recreational Property Act due to charges for admission onto church property. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

(b) Express Invitation or Permission Not Required. “[A]n owner of land who either directly or indirectly invites or permits without charge any person to use the property for recreational purposes does not thereby: (1) Extend any assurance that the premises are safe for any purpose; (2) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed. . . .” OCGA § 51-3-23. The uncontradicted proof in the case sub judice reveals that the recreational equipment located on the church’s property was freely and regularly used by the public and that the church did not limit public access to the recreational equipment on its property. Compare Ga. Power Co. v. McGruder, 229 Ga. 811, 812 (194 SE2d 440). Consequently, the absence of the church’s express consent for the public to use its recreational equipment does not preclude application of the Recreational Property Act.

2. Next, the Maleares contend that the liability limitations of the Recreational Property Act do not apply because the church wilfully or wantonly failed to guard or warn against a dangerous condition.

“Nothing in [the Recreational Property Act] limits in any way any liability which otherwise exists [for] willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity. . . .” OCGA § 51-3-25. “ ‘A wilful failure to guard or warn would require actual knowledge of the owner that its property is being used for recreational purposes; that a condition exists involving an unreasonable risk of death or serious bodily harm; that the condition is not apparent to those using the property; and that having this knowledge, the owner chooses not to guard or warn, in disregard of the possible consequences. This test excludes either constructive knowledge or a duty to inspect.’ (Punctuation omitted.) Georgia Marble Co. v. Warren, 183 Ga. App. 866, 867 (1) (360 SE2d 286) (1987).” Welch v. Douglas County, 199 Ga. App. 269, 270 (2), supra.

Decided June 6, 1994

Reconsideration denied June 22, 1994

Webb & Lindsey, Richard P. Lindsey, for appellants.

Murray & Temple, William D. Temple, for appellee.

In the case sub judice, there is no evidence that the church had actual knowledge of the hazard that caused Cherlyn Maleare injuries. The record only shows that the pastor of the church made repairs to the swing which broke under Cherlyn Maleare’s weight and that he did so in response to a warning that the swing was in need of repair. Under these circumstances and in light of evidence that Cherlyn Maleare was aware that the swing set which caused her fall was old and in need of repairs, we cannot say that genuine issues of material fact remain with regard to the church’s wilful or wanton failure to guard or warn against a dangerous condition. See Lau’s Corp. v. Haskins, 261 Ga. 491, supra.

The trial court did not err in granting the church’s motion for summary judgment.

3. In light of the holding in Divisions 1 and 2 of this opinion, it is unnecessary to address the Maleares’ final enumeration.

Judgment affirmed.

Pope, C. J., concurs. Smith, J., concurs in the judgment only.

       The swing set has been on the church’s property for several years and is situated near a public recreational path. It is undisputed that the church has always allowed free public access to its grounds and that the school’s swings have long been used by the public for recreational purposes.


author: Judge Harold R. Banke.

text:
    A92A1243.
    STEPHENS v. TROTTER.
    (445 SE2d 359)
   Judge Harold R. Banke.

The appellant, Brenda Stephens, commenced this action against the appellee, William Trotter, seeking specific performance of an alleged oral agreement to sell a house and damages for fraud. She subsequently amended her complaint to seek a declaration of the existence of an agreement obligating the appellee to convey the property to her upon the occurrence of certain events. The trial court granted the appellee’s motion for summary judgment, and this appeal followed.

In 1986, the appellant moved into a house owned by the appellee. It is disputed whether the appellant took possession pursuant to an oral agreement to purchase the property or pursuant to a lease arrangement.

In 1989, the appellee executed a document in which he agreed to convey the property to the appellant upon her payment of $233 per month, plus taxes and insurance, for 20 years beginning July 1, 1984. The document further provided that the appellant would repay a home improvement loan by making monthly payments of $164.50 for ten years; that the appellant was responsible for all home improvements; and that should the appellant die “during this agreement, said agreement will be honored with [her] heirs.” The appellant claims that this document essentially memorialized their original agreement, and it is uncontroverted that the appellant has kept current with the payments specified in that document.

The appellee moved for summary judgment on the grounds that (1) the alleged oral agreement to convey real estate was unenforceable; (2) the document executed by the appellee was merely an offer; and (3) even if the document constituted an agreement, a condition precedent for his performance had not been satisfied. The trial court did not specify upon which basis the appellee was entitled to summary judgment.

Generally, an oral contract for the sale of real property is unenforceable. OCGA § 13-5-30 (4). However, partial payment of the purchase-money accompanied by possession of the property may remove an oral contract from the operation of that statute. Smith v. Cox, 247 Ga. 563, 564 (277 SE2d 512) (1981). The evidence in the instant case was sufficient to establish a factual issue regarding both the existence of an oral agreement for the sale of the property at the time the appellant took possession in 1986 and the extent of part performance by the appellant.

Nevertheless, even though the evidence was sufficient to avoid application of the Statute of Frauds, the appellant would not be entitled to a present conveyance of the property as she sought in her claim for specific performance. Total payment of the purchase price was a condition precedent for the appellee’s performance in that regard, and total payment had not yet been made or tendered. See Kirk v. First Ga. Investment Corp., 239 Ga. 171, 173-174 (236 SE2d 254) (1977). Similarly, the appellant cannot recover against the appellee for fraud.

However, inasmuch as the appellee has denied the existence of any agreement to sell the property and has asserted a control over the property that is inconsistent with the appellant’s claimed contractual rights, this case presented a proper matter for a declaration as to the existence and effect of such an agreement. OCGA § 9-4-2; see, e.g., Gen. Hospitals of Humana v. Jenkins, 188 Ga. App. 825 (1) (374 SE2d 739) (1988). Accordingly, the trial court erred in granting summary judgment for the appellee on the claim for declaratory relief.

Decided June 22, 1994.

Robert W. Mitchum, for appellant.

Gary V. Bowman, for appellee.

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.


author: Birdsong, Presiding Judge.

text:
    A93A0800.
    REPUBLIC CLAIMS SERVICE COMPANY v. HOYAL.
    (446 SE2d 798)
    Decided June 22, 1994.

      George H. Connell, Jr., for appellant.
    Joe Hoyal, pro se.

   Birdsong, Presiding Judge.

In Republic Claims Svc. Co. v. Hoyal, 264 Ga. 127 (441 SE2d 755), the Supreme Court reversed our decision in this case, reported at 210 Ga. App. 88 (435 SE2d 612). The judgment of the trial court in this case is therefore reversed pursuant to the ruling of the Supreme Court, and the trial court is directed to take such action as is appropriate or necessary and not inconsistent with the ruling of the Supreme Court.

Judgment reversed.

Pope, C. J., McMurray, P. J., Beasley, P. J., Andrews, Johnson, Blackburn, Smith, JJ., and Senior Appellate Judge Harold R. Banke concur.


text:
    A93A1700.
    MARTIN v. SCHINDLEY.
    (446 SE2d 797)
   Birdsong, Presiding Judge.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court, Martin v. Schindley, 264 Ga. 142 (442 SE2d 239), the decision in Martin v. Schindley, 210 Ga. App. 270 (435 SE2d 716), is hereby vacated and the judgment of the Supreme Court is made the judgment of this court. The case is remanded to the trial court for proceedings not inconsistent herewith.

Decided June 22, 1994.

William I. Sykes, Jr., Susan D. Brown, for appellant.

Dodd & Kinsey, Jack E. Dodd, James B. Kinsey, for appellee.

Judgment vacated and remanded with direction.

Pope, C. J., and Andrews, J., concur.


text:
    A93A2412.
    BROWN v. FRANKLIN COUNTY SCHOOL DISTRICT et al.
    (445 SE2d 360)
   Judge Harold R. Banke.

In 1989, 1990, and 1991, the State Revenue Commissioner disapproved the ad valorem tax digests of Franklin County. In 1991, the county authorities entered into a consent agreement with the Commissioner, pursuant to which the county was to revise its 1992 digest and submit it for approval by October 20, 1992. The digest, however, was not completed until March or April 1993.

The appellant taxpayer commenced this action against Franklin County, the Franklin County School District, the Franklin County Board of Tax Assessors, and the Franklin County Tax Commissioner, seeking a declaration that the county could not levy 1992 ad valorem taxes during 1993. The Franklin County School District filed a counterclaim seeking to enjoin the appellant from interfering with the levy and collection of such taxes. The trial court granted judgment for the appellees on the appellant’s petition, and also held for the school district on its counterclaim. This appeal followed.

1. In Fayette County Bd. of Tax Assessors v. Ga. Utilities Co., 186 Ga. App. 723 (368 SE2d 326) (1988), the county board of tax assessors reassessed certain real property for the five previous tax years, after discovering that it had been erroneously assessed (and taxes had been collected) as unimproved property during that period of time. This court found no authority for the county board to make such a reassessment.

The appellant contends that under Fayette, the Franklin County Board of Tax Assessors had no authority to reassess his property in 1993 for the 1992 tax year. However, the instant case involves the initial assessment of property taxes for the 1992 tax year, rather than a reassessment, and Fayette is inapposite here.

Decided June 22, 1994.

Proctor & Associates, Robert J. Proctor, for appellant.

Andrew J. Hill, Jr., Heard, Leuerett, Phelps, Weaver & Campbell, E. Freemen Leverett, Milford & Milford, C. Patrick Milford, for appellees.

The fact that the initial assessment took place after the year in which the taxes would normally be due is of no consequence here. OCGA § 48-5-302 generally requires a county board of tax assessors to complete its revision and assessment of returns by June 1 of each year, but that provision is merely directory, and a county board has “power and authority to perform and complete any of its official duties after that date.” Sauls v. Winters, 215 Ga. 515, 517 (111 SE2d 41) (1959). Accordingly, the trial court properly concluded that the appellees were authorized to levy and collect the ad valorem taxes for 1992.

2. In 1992, the county government filed a petition seeking temporary collection of taxes pursuant to OCGA § 48-5-310 but voluntarily dismissed it, after deciding to delay collection of the taxes until the new tax digest was completed. The appellant contends that the appellees thereby forfeited the right to collect the 1992 property taxes. However, as found by the trial court, nothing in OCGA § 48-5-310 establishes that procedure as a prerequisite for collecting property taxes following the approval of the digest or resolution of a tax appeal.

3. In light of the above holdings, the appellant’s remaining enumerations of error concerning the injunctive relief granted the school district and the refusal to certify the action as a class action need not be addressed.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A0324.
    FORD v. OLYMPIA SKATE CENTER, INC.
    (445 SE2d 362)
   Johnson, Judge.

Charles Ford filed suit against Olympia Skate Center, Inc. for injuries he allegedly sustained on February 18, 1991, while rollerskating in a rink bearing the name “Olympia Skate Center.” Ford filed this action on February 17, 1993, just before the statute of limitation expired. The personal secretary of the president of Olympia Skate Center, Inc. was served on February 18, 1993. On March 16, 1993, Olympia Skate Center, Inc. answered and moved to dismiss alleging that service was insufficient and that Olympia Skate Center, Inc. neither owns nor operates the skating facility where the injuries allegedly occurred. On April 16, 1993, while the motion to dismiss was pending, service of the complaint was made personally upon N. Henry Davis, the president of Olympia Skate Center, Inc. Olympia Skate Center, Inc. amended its motion to dismiss on June 9, 1993, and included an affidavit showing that the skating rink in question is in fact owned by Olympia Services, Inc. In the affidavit, Davis states that the two corporations are separate entities, though he admits that he serves as president of and owns stock in both corporations. On June 28, 1993, Ford filed a motion for leave of court to add Davis individually as a defendant claiming he is an indispensable party. On August 16, 1993, still prior to any ruling by the trial court, Ford moved for leave to amend to correct a corporate misnomer or in the alternative to add a proper party; specifically, Ford sought to add Olympia Services, Inc. as a party or to change Olympia Skate, Inc. to Olympia Services, Inc. The trial court entered an order granting Olympia Skate Center, Inc.’s motion to dismiss, holding that the complaint failed to state a claim upon which relief could be granted. The trial court found that service was proper and denied Olympia Skate Center, Inc.’s motion to dismiss on that basis. The court also denied Ford’s motion to add Davis as a party. Although the trial court made no express ruling on Ford’s motion to add Olympia Services, Inc. as a party, it effectively denied the motion in granting Olympia Skate Center, Inc.’s motion to dismiss. Ford appeals.

1. Ford contends that the trial court should have allowed him to add Olympia Services, Inc. as a party pursuant to OCGA § 9-11-15. We agree. OCGA § 9-11-15 (c) permits the addition of a new defendant and a relation back as to that new defendant if the amendment arises out of the same facts as the original complaint, the new defendant has sufficient notice of the action, and the new defendant knew or should have known that, but for a mistake concerning his identity as a proper party, the action would have been brought against him. Robinson v. Piggly Wiggly of Calhoun, 193 Ga. App. 675, 676 (388 SE2d 754) (1989); Trillium Nursing Home v. Thebaut, 189 Ga. App. 411 (375 SE2d 888) (1988). These requirements have been met in this case. First, the original complaint was served on the personal secretary of the man who served as president of both Olympia Skate Center, Inc. and Olympia Services, Inc. It was later served upon Davis himself. The trial court specifically found that Ford exercised due diligence and good faith in attempting service, such that any delay in service upon Davis was excusable. Therefore, arguably from the date of the original service upon Davis’ secretary and certainly from the date of service directly upon Davis, Olympia Services, Inc. had actual notice of the action. Secondly, the amendment arises from the same facts as the original complaint. Thirdly, Olympia Services, Inc., through Davis, knew or should have known that, but for a mistake concerning its identity, the action would have been brought against it. Robinson, supra at 676; see Ciprotti v. United Inns, 209 Ga. App. 457, 458-459 (4) (433 SE2d 585) (1993).

The instant case is quite different from those cases involving attempts to add new parties in which there was no service upon the corporation to be added. See, e.g., Dollar Concrete Constr. Co. v. Watson, 207 Ga. App. 452, 454 (428 SE2d 379) (1993). In this case, as in Robinson, supra, Olympia Skate Center, Inc. and Olympia Services, Inc. are closely intertwined. The corporations have the same president, stockholder(s), bookkeeper, and accountant. In Rich’s, Inc. v. Snyder, 134 Ga. App. 889 (216 SE2d 648) (1975), we allowed the plaintiff to substitute Rich’s, Inc. for Richway, Inc. since the registered agent for service for both corporations was the same and the liability carrier for Rich’s, Inc. was already on notice regarding the incident. Robinson, supra at 677. It is important to note that those cases which disallowed the substitution or addition of a party where the party first named is in fact a legal entity, have been expressly overruled. See Franklyn Gesner Fine Paintings v. Ketcham, 252 Ga. 537, 539-540 (314 SE2d 903) (1984). In recent years, it has been the policy of our appellate courts to interpret the Civil Practice Act liberally rather than restrictively. Id. at 539; Dover Place Apts. v. A. & M. Plumbing &c. Co., 255 Ga. 27, 28 (2) (335 SE2d 113) (1985). Consistent with that policy, we find that the trial court erred in denying Ford’s motion to substitute Olympia Services, Inc. for Olympia Skate Center, Inc. Therefore, the trial court is directed to enter an order allowing Ford to substitute Olympia Services, Inc. as party defendant, with the date of service relating back to the date of service upon Davis.

2. Ford also contends that the trial court erred in denying his motion to add Davis as a defendant because, as the owner and landlord of the premises where the incident occurred, he is an indispensable party. We note that there are questions as to whether Davis, as the owner of premises leased to and operated by an apparently separate entity, is liable for injuries occurring on those premises. See Three Notch E.M.C. v. Bush, 190 Ga. App. 858, 860-861 (3) (380 SE2d 720) (1989); Godwin v. Olshan, 161 Ga. App. 35, 36 (2) (288 SE2d 850) (1982). Assuming without deciding that Davis is liable for injuries occurring on the leased premises, he would at most be a joint tortfeasor with Olympia Services, Inc. Joint tortfeasors are not indispensable parties in an action against one of them, because their liability is both joint and several. North Carolina Nat. Bank v. Peoples Bank of LaGrange, 127 Ga. App. 372, 375 (193 SE2d 571) (1972), aff’d 230 Ga. 389 (197 SE2d 352) (1973); Freeman v. Low X-Ray Corp., 130 Ga. App. 856, 857 (204 SE2d 803) (1974). Therefore, the trial court did not err in denying Ford’s motion to add Davis as a defendant.

Decided June 22, 1994.

Lucas & Associates, Ellis M. Nelson, for appellant.

Daniel E. Potter, O. Hale Almand, Jr., for appellee.

3. Ford contends that the trial court erred in dismissing the case for failure to state a claim when Ford merely named the wrong defendant. In light of our holding in Division 1 that Ford must be allowed to substitute the proper defendant and our holding that the trial court’s order of dismissal must be reversed, we need not address this issue.

Judgment affirmed in part and reversed in part. Case remanded with direction.

Beasley, P. J., and Andrews, J., concur.


author: Blackburn, Judge.

text:
    A94A1580.
    CHEROKEE FALLS INVESTMENTS, INC. et al. v. SMITH et al.
    (445 SE2d 572)
   Blackburn, Judge.

The appellants, Cherokee Falls Investments, Inc. (CFI), and William Crolley, an officer of CFI, filed the instant action against Jarrell C. Brantley and appellees John H. Smith, Inc. (the corporation), and John H. Smith, the corporation’s president, seeking damages and, in the alternative, specific performance for an alleged breach of a joint venture agreement contained in an addendum to a contract for the sale of real property. Crolley and CFI also sought damages for Smith’s and the corporation’s alleged interference with an oral contract between Crolley and Brantley for the purchase and control of certain real property.

Following the commencement of discovery, Smith and the corporation moved for summary judgment, asserting that the joint venture agreement was too vague and indefinite for enforcement, that the contract at most was an unenforceable agreement to agree, and that Crolley and CFI did not have an actual contract with Brantley with which Smith and the corporation could interfere. The trial court granted the motion for summary judgment, and this appeal followed.

The record viewed in the light most favorable to Crolley and CFI, the nonmovants, shows that CFI is a Georgia corporation involved in the purchase and development of real estate. CFI, Crolley, and Brantley owned 219 acres of contiguous property located in Cherokee County and CFI intended to develop the property in four separate phases as a residential neighborhood known as Cherokee Falls Subdivision. CFI owned the 60 acres of property planned for development in the first phase of the subdivision.

In June 1992, Crolley contacted Smith to develop the property in the Cherokee Falls subdivision. On June 18, 1992, Smith and Crolley, in their individual capacities, executed an agreement for the sale of the 60 acres in Phase I of the subdivision. The only statements concerning the parties’ purported joint venture agreement was contained in an addendum to the Special Stipulations provision in the sales contract and provided in Section 11 that “5% lot sales to be paid to John Smith by venture,” and in Section 15 that “[a]ll future development to be done by a Venture between John H. Smith, Inc. and Cherokee Falls Investments, Inc.” The addendum did not contain any details on the joint venture or the parties’ rights and obligations under the joint venture. The addendum did contain a list of the acreage and the price of the property in each phase of the subdivision but did not describe with particularity the properties within the subdivision.

Crolley later sold the property in Phase I of the subdivision to Smith, transferring the property to Smith by a warranty deed on June 24, 1992. An addendum to the closing statement on the property provided that “[t]he terms and conditions of the contract between the parties not fulfilled prior to closing shall survive the execution and delivery of the warranty deed, including provisions relating to the subsequent development of Phases II, III, and IV.” Smith subsequently developed the property based upon many of the stipulations contained in the addendum to the sales contract.

In September 1992, Smith presented Crolley with a detailed joint venture agreement and Crolley refused to agree to the terms contained therein. The next month, Smith began negotiations with Brantley for the sale of Brantley’s property located in the subdivision, and Brantley sold the property to Smith on January 4, 1993. It is undisputed that Brantley was introduced to Smith by Crolley and that the two had not previously known each other. The evidence in the record is in dispute as to whether Brantley and Crolley entered into a verbal agreement for the sale of Brantley’s property to Crolley and whether Smith knew of this verbal agreement. The record does show that Crolley entered into a contract with a realtor for the sale of Brantley’s property in October 1992.

1. “ ‘A contract is an agreement between two or more parties for the doing or not doing of some specified thing.’ [Cit.] ‘In order that it may allege an agreement, a petition must set forth a contract of such certainty and completeness that either party may have a right of action upon it.’ [Cit.] ‘The requirement of certainty extends not only to the subject matter and purpose of the contract, but also to the parties, consideration, and even the time and place of performance where these are essential. When a contract is substantially alleged, some details might be supplied under the doctrines of reasonable time or reasonable requirements. But indefiniteness in subject matter so extreme as not to present anything upon which the contract may operate in a definite manner renders the contract void.’ [Cit.] Furthermore, ‘the first requirement of the law relative to contracts is that there must be a meeting of the minds of the parties, and mutuality, and in order for the contract to be valid the agreement must ordinarily be expressed plainly and explicitly enough to show what the parties agreed upon. A contract cannot be enforced in any form of action if its terms are incomplete or incomprehensible.’ [Cits.]” (Punctuation omitted.) Jackson v. Williams, 209 Ga. App. 640, 642-643 (434 SE2d 98) (1993). In addition, “ ‘[a] court of equity will not decree the specific performance of a contract [involving an interest in land] unless there is a definite and specific statement of the terms of the contract.’ ” (Citations omitted.) Green v. Zaring, 222 Ga. 195, 198 (149 SE2d 115) (1966).

In the case sub judice, contrary to CFI and Crolley’s assertions, the alleged contract herein was too indefinite to be enforceable. The record shows that the sales contract at issue did not contain a clear expression of the terms of the parties’ agreement on the joint venture on such issues as how or when the development was to occur, the allocation of costs and profits between the parties, the proposed completion date for the development project, or whether the joint venture was limited to development within the Cherokee Falls subdivision. “[N]owhere in the document is there any statement with reasonable certainty as to what the parties were obligating themselves to do to effect what they envisioned, or as to what they envisioned.” Id. at 198. Smith’s mere purchase of property within the subdivision did not cure those deficiencies. See Jackson, supra at 643. Consequently, the purported joint venture agreement is lacking in certainty, and hence, is unenforceable, and will not support an action for damages or specific performance.

2. We reject CFI and Crolley’s assertion that the trial court erred in granting summary judgment on their claim of tortious interference with their contractual relations with Brantley. “ ‘In order to recover for a third party’s intentional interference with contractual relations, a plaintiff must show that damage to his rights or obligations under a contract proximately resulted from the third party’s alleged interference.’ [Cit.]” (Emphasis supplied.) Moore v. Barge, 210 Ga. App. 552, 556 (436 SE2d 746) (1993). In the case sub judice, it is undisputed that Crolley and CFI did not have a written contract with Brantley for the sale of the property, and “oral promises to convey interests in land are unenforceable under the Statute of Frauds. OCGA § 13-5-30 (4).” East Piedmont 120 Assoc. v. Sheppard, 209 Ga. App. 664, 665 (434 SE2d 101) (1993). Accordingly, there was no contractual relationship with which Smith and the corporation could interfere. Absent an enforceable contract between Brantley, CFI, and Crolley, Crolley and CFI could not recover against Smith and the corporation for any alleged tortious interference with their contractual relations with Brantley. See Integrated Micro Systems v. NEC Home Electronics (USA), 174 Ga. App. 197 (1) (329 SE2d 554) (1985). Consequently, summary adjudication in favor of Smith and the corporation was warranted.

Decided June 22, 1994.

Bovis, Kyle & Burch, C. Sam Thomas, Wade H. Purcell, for appellants.

Brock & Clay, Richard W. Calhoun, for appellees.

Judgment affirmed.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.

       Brantley is not involved in this appeal.


text:
    A94A1632.
    AMERICAN AMBASSADOR CASUALTY COMPANY v. CASH et al.
    (445 SE2d 364)
   Blackburn, Judge.

The appellant, American Ambassador Casualty Company, filed the instant declaratory judgment action to determine the company’s liability for the payment of uninsured motorist insurance benefits under a policy issued to appellees Cindy and William Cash, both of whom asserted claims based upon an accident involving a phantom vehicle. Following a bench trial based upon stipulated facts submitted by the parties, the trial court concluded that the Cashes could act as corroborating witnesses under OCGA § 33-7-11 (b) (2) notwithstanding their matrimonial relationship. The court further concluded that the Cashes could proceed with their underlying tort action against American. This appeal followed.

The stipulation of facts submitted by the parties shows that the . Cashes contend that Cindy Cash was the driver of the insured vehicle on November 6, 1988, when the vehicle was forced off the roadway after an unknown vehicle crossed the centerline rounding a curve in the opposite direction. There was no contact between the vehicles and there were no eyewitnesses to the accident other than the Cashes. Cindy Cash incurred medical expenses for injuries that she sustained in the accident, and William Cash, a passenger in the insured vehicle at the time of the accident, contends that he lost the companionship and consortium of his wife as a result of this accident. The Cashes can corroborate each other’s description of how the occurrence occurred as required under OCGA § 33-7-11 (b) (2).

“OCGA § 33-7-11 (b) (2), as amended, pertinently provides: ‘A motor vehicle shall be deemed to be uninsured if the owner or operator of the motor vehicle is unknown. In those cases ... in order for the insured to recover under the endorsement where the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, actual physical contact must have occurred between the motor vehicle owned or operated by the unknown person and the person or property of the insured. Such physical contact shall not be required if the description by the claimant of how the occurrence occurred is corroborated by an eyewitness to the occurrence other than the claimant.’ . . . The last sentence to this Code section was added by the legislature ‘so as to provide for coverage for accidents caused by unknown motorists where the unknown motorist’s vehicle does not physically contact the insured’s vehicle.’ [Cit.]” (Emphasis deleted.) Atlanta Cas. Ins. Co. v. Crews, 197 Ga. App. 48, 49 (1) (397 SE2d 466) (1990).

The statute does not provide that the corroborating eyewitness must be a disinterested third party, unrelated to the claimant. “Reading the statute literally once more, we find that on its face it requires only corroboration by an eyewitness, regardless [of] whether the witness is an interested party. ...” Id. at 50. “If the General Assembly had intended to require corroboration by a disinterested third party, it could have so specified.” Univ. Security Ins. Co. v. Lowery, 257 Ga. 363, 364 (359 SE2d 898) (1987). In Lowery, the Supreme Court held that the corroborating eyewitness testimony required to satisfy the statute may be provided by an injured passenger who also has a claim against the uninsured motorist insurance carrier. Although the Court in Lowery recognized that the corroborating evidence presented therein may have been subject to credibility concerns, as in the case sub judice, nevertheless, the evidence was sufficient to support a claim for uninsured motorist benefits under OCGA § 33-7-11 (b) (2). In our review of Univ. Security Ins. Co. v. Lowery, 182 Ga. App. 125, 126 (354 SE2d 840) (1987), we likewise held that “under OCGA § 33-7-11 (b) (2) the corroboration may be provided by another occupant in the vehicle. . . .” Applying the Supreme Court’s decision in Lowery to the facts presented herein, American’s argument that the corroborating eyewitness under OCGA § 33-7-11 must be an unrelated, non-claimant, is without merit. We further decline to apply the rationale of the common-law doctrine of interspousal tort immunity to this case as requested by American since William Cash’s claim for benefits is derivative of the claim being asserted by his wife.

The matrimonial relationship of Cindy and William Cash should not preclude either from acting as a corroborating witness for the other under the applicable statute. To do so would be contrary to the legislature’s clear intent in enacting this statute, and would deprive a class of Georgia citizens of a remedy based solely upon the nature and extent of their constitutionally protected associations. Contrary to American’s assertion, the mere nature of the Cashes’ relationship does not increase the possibility of collusion any more than the relationship of any other passenger and driver since most passengers ride in vehicles driven by people with whom they are acquainted.

Decided June 22, 1994.

Greer, Klosik & Daugherty, Jeffrey F. Leasendale, for appellant.

York, McRae & York, Michael H. York, for appellees.

Accordingly, the trial court did not commit error as enumerated.

Judgment affirmed.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A94A0283.
    NURSEFINDERS OF ATLANTA, INC. v. SUTTLES.
    (445 SE2d 318)
   Johnson, Judge.

Nursefinders of Atlanta, Inc., filed suit against William S. Suttles (“Suttles”) as guardian of William Justin Suttles (“Justin”) alleging that Suttles failed to pay for medical services rendered to his minor son, Justin. Both parties moved for summary judgment. The trial court denied Nursefinders’ motion and granted Suttles’ motion, holding that Justin’s estate was not liable. Nursefinders appeals.

The record shows that in July 1983 Justin, then three years old, became semi-comatose following a dental procedure and has required continuous nursing care ever since. In September 1983, Suttles and his wife, April Suttles, retained Nursefinders to provide nursing services to Justin. Mrs. Suttles handled most of the negotiations with Nursefinders. In October 1983, Mr. Suttles purportedly signed a document authorizing his insurer to pay Nursefinders for its services and agreeing to be responsible for charges not paid by insurance. In June 1984, settlement funds were paid into a trust estate for Justin’s benefit. It was not until June 1984 that Mr. Suttles was appointed guardian of Justin’s estate. Nursefinders continued to provide medical services to Justin for the next seven years. During that period, Nursefinders sent all bills directly to Mr. Suttles’ employer for insurance processing with copies sent to Mr. and Mrs. Suttles. With Mr. Suttles’ authority, Mrs. Suttles signed several checks on the guardianship account to pay Nursefinders. In June 1992, Nursefinders filed suit against Mr. Suttles only in his capacity as guardian. Suttles defended on the ground that, inter alia, the child’s estate was not a party to any contract with Nursefinders.

1. Nursefinders contends that the trial court erred in granting summary judgment to Suttles because the guardian ratified the contract. Specifically, Nursefinders argues that the guardian ratified the agreement by accepting the benefits of the arrangement and by consenting to Nursefinders’ services. Nursefinders also argues that Mrs. Suttles, as agent for the guardian, ratified the contract.

“Where a contract or undertaking is personal, it binds only the original parties and those who may assume the obligation or ratify or adopt the contract. ... A third person may, of course, assume the obligation expressly in writing, or he may do so by implication where his conduct manifests an intent to become bound. In the latter event all the circumstances must be considered, such as the subject matter of the contract, the third person’s acts and words, whether he acquiesced in the terms of the contract, performed its obligations, or accepted its benefits.” (Citations omitted.) Central of Ga. R. Co. v. Woolfolk Chemical Works, 122 Ga. App. 789, 791-792 (1) (178 SE2d 710) (1970). In this case, the evidence conflicts as to whether the guardian, either by his own conduct or by that of Mrs. Suttles as his agent, manifested an intent for the estate to be bound by the agreement with Nursefinders. On the one hand, there is evidence that the Suttles acted on their own behalf in their dealings with Nursefinders. For instance, the Suttles employed the services of and made payment arrangements with Nursefinders in their individual capacities nine months before the guardianship existed. Even after the creation of the guardianship, prior to the filing of this suit, Nursefinders looked solely to the Suttles as individuals for payment. The only signed agreement of record shows Mr. Suttles’ name with no indication that he would be bound in any capacity other than in an individual one. Where a person uses no identifying words to show in what capacity he is purporting to act, he is presumed to act in his individual capacity. See generally Heath v. Costello, 76 Ga. App. 94, 96 (44 SE2d 919) (1947). See also Wojcik v. Lewis, 204 Ga. App. 301, 304 (2) (419 SE2d 135) (1992). On the other hand, Mrs. Suttles was authorized to and did write several checks to Nursefinders out of the guardianship account. While “mere payment on the account of another cannot bind or create a liability against the payer for a remaining balance,” D. H. Overmyer Warehouse Co. v. W. C. Caye & Co., 116 Ga. App. 128, 134-135 (157 SE2d 68) (1967), such a payment may be considered some evidence of ratification. See Central of Ga. R. Co. v. Woolfolk Chemical Works, supra at 792 (1). There is also evidence that the guardian acquiesced and that he and the ward benefitted from the agreement. Consequently, it is not at all clear whether in accepting the services, making the care arrangements and making the payments after the guardianship was created, the Suttles were acting on behalf of the guardianship or in their individual capacities as parents. Thus, the question of whether the guardian ratified the agreement with Nurse-finders remains. Whether a ratification occurred is ordinarily a question for the jury. Hunter v. Roberts, 199 Ga. App. 318, 319 (2) (404 SE2d 645) (1991).

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” (Citation and punctuation omitted.) Conerly v. First Nat. Bank &c., 209 Ga. App. 601 (1) (434 SE2d 143) (1993). Given the conflicts in the evidence, we cannot conclude that there is no genuine issue of material fact or that the evidence warrants judgment as a matter of law for either party. “A trial court’s grant of summary judgment will not be sustained if there is any genuine issue of material fact, however imbalanced it may appear.” (Emphasis in original; citation and punctuation omitted.) Ga. Canoeing Assn. v. Henry, 263 Ga. 77, 78 (428 SE2d 336) (1993). Accordingly, the trial court erred in granting summary judgment in this case.

2. Nursefinders also contends that the trial court erred in ruling that no benefit of legal consequence was conferred upon Justin’s estate. The trial court erred in finding as a matter of law that no benefit occurred, because evidence in the record suggests the contrary to be the case. The record shows that the estate was created for management of the settlement proceeds Justin received as a result of his injuries. Included in the record are petitions to encroach and annual returns filed by the guardian which clearly indicate that the use of estate funds is necessary for the payment of the ward’s medical expenses, including nursing care. The evidence also reveals that Nurse-finders provided satisfactory nursing care to the child. If providing continuous nursing care to a comatose ward does not constitute a benefit to his estate, we cannot imagine what does. However, whether the child’s estate received a benefit is not a question of law, but one of fact. The trial court, therefore, erred in not allowing a jury to resolve the issue. On remand, if the jury finds that the contract was ratified by the guardian, it is authorized to find as well that the providing of nursing care is a benefit to the estate for which the estate is liable.

Decided June 6, 1994

Reconsideration denied June 23, 1994

Schwall & Schwall, Emory A. Schwall, Robert S. Wayne, for appellant.

W. Thomas Craig, P. Matthew Ledbetter, Jr., for appellee.

Judgment reversed and case remanded.

Andrews, J., concurs. Beasley, P. J., concurs in judgment only.

       On motion for summary judgment, though not on appeal, Suttles also argued that the guardian cannot bind the estate without prior approval of the probate court and that therefore such a contract would be unenforceable. We disagree. “By the law a guardian is allowed all reasonable expenses and disbursements suitable to the circumstances of the [child] committed to his care. . . . [W]here the [guardian] has exercised [his authority] fairly and properly without the consent of the ordinary previously given, and where prompt and regular annual returns of his action in that behalf have been made, the ordinary, by his approval of such returns, may ratify the action.” Shipp v. McCowen, 147 Ga. 711, 714-715 (95 SE 251) (1917). Under the facts of this case, prior approval was not necessary. Likewise, we find Suttles’ other argument below, that the guardian was without authority to appoint an agent, to be without merit. OCGA § 29-2-21 allows the guardian to appoint an agent. Moreover, even assuming arguendo that Mr. Suttles was without authority to appoint an agent, that does not dispose of the question of whether he, as guardian, ratified the agreement.

       We do not imply that the parents are not bound in their individual capacities. They are not defendants in this case and that question is therefore not before the court.


author: Beasley, Presiding Judge.

text:
    A94A0848.
    HARPER v. THE STATE.
    (445 SE2d 300)
   Beasley, Presiding Judge.

Following a single transaction, Harper was convicted and sentenced for selling cocaine, OCGA § 16-13-30 (b), and selling cocaine within 1,000 feet of a public housing project, OCGA § 16-13-32.5 (b). A first violation of OCGA § 16-13-30 (b) is punishable by imprisonment from five to thirty years. OCGA § 16-13-30 (f). A first violation of OCGA § 16-13-32.5 (b) is punishable by no more than 20 years imprisonment or a fine of up to $20,000, or both, and is to be served consecutively to any other sentence imposed. OCGA § 16-13-32.5 (c).

Evidence presented at trial indicated that a police officer, working undercover in her vehicle, was waved to a stop by Harper. She told him she wished to buy cocaine and Harper instructed her to drive around and come back. After doing so, she was sold cocaine by Harper.

1. Harper contends that the court erred in not declaring OCGA § 16-13-32.5 unconstitutional. He contends that the statute is violative of due process and eqüal protection rights because it treats drug sales in the vicinity of public housing projects differently than sales in other residential areas. This contention first appears in Harper’s motion for new trial. The Supreme Court has exclusive appellate jurisdiction over all cases in which the constitutionality of a statute is called into question. Ga. Const, of 1983, Art. VI, Sec. VI, Par. II (1). However, such a question “presented for the first time in the defendant’s motion for new trial, [is] not timely raised so as to confer jurisdiction of the appeal upon the Supreme Court. [Cits.]” Gainey v. State, 232 Ga. 334 (206 SE2d 474) (1974). Thus this constitutional challenge is not reviewable and its enumeration does not remove this case from this court’s jurisdiction. Hilson v. State, 204 Ga. App. 200, 203 (2) (418 SE2d 784) (1992).

2. Harper also asserts it was error under OCGA § 16-1-7 to convict him of violating both OCGA §§ 16-13-30 and 16-13-32.5. There was no merger of crimes under OCGA § 16-1-7 because OCGA § 16-13-32.5, enacted in 1992, specifically states that “[a] conviction arising under this Code section shall not merge with a conviction arising under any other provision of this article.” OCGA § 16-13-32.5 (d). The legislature is presumed to be aware of the state of the law when it enacts legislation. Henry v. Wild Pines Apts., 177 Ga. App. 576 (340 SE2d 233) (1986). Any conflict between OCGA §§ 16-1-7 and 16-13-32.5 (d) is resolved in favor of the express exception provided later in OCGA § 16-13-32.5 (d).

Additionally, were OCGA § 16-1-7 implicated, there would be no violation. In addition to the “non-merger” statement found in OCGA § 16-13-32.5 (d), the section’s sentencing provision states “[a] sentence imposed under this Code section shall be served consecutively to any other sentence imposed.” OCGA § 16-13-32.5 (c). This shows that the intention of OCGA § 16-13-32.5 (d) is not to avoid the operation of OCGA § 16-1-7, but to simply increase the punishment for selling drugs near public housing projects and recreational facilities. It is evident by this target that the legislature intended to ratchet up the scale those sales made in certain vulnerable places where high volume drug trade was historically prevalent, or where children were likely to be, in an effort to reduce sales there. The added element of specific location increases the total punishment, using the vehicle of an additional crime.

This analysis comports with the prior interpretation of another statute which similarly casts certain conduct as constituting two crimes because of the addition of a heightening factor. OCGA § 16-11-106 provides penalties for possessing a firearm or knife while committing certain crimes, and specifically provides that “[a]ny crime committed in violation of . . . this Code section shall be considered a separate offense.” OCGA § 16-11-106 (e). In determining whether this provision violated statutory or constitutional proscriptions on merger and double jeopardy, the Supreme Court stated there was no statutory or constitutional violation because “there is express legislative intent to impose double punishment for conduct which violates both [OCGA § 16-11-106] and other felony statutes.” Wilson v. Zant, 249 Ga. 373, 380 (2) (290 SE2d 442) (1982). The operation of OCGA § 16-13-32.5 (d) is the same as OCGA § 16-11-106 (e), to impose additional punishment for conduct violating both statutes. In one, it is the ingredient of a weapon, whereas in the other, it is the ingredient of a location.

Harper also asserts that, even if OCGA § 16-1-7 is inapplicable in his case, sentencing him for both convictions violates his rights against double jeopardy under the Fifth Amendment to the United States Constitution (and by implication, the Fourteenth Amendment), as well as his rights under the Georgia Constitution, Ga. Const, of 1983, Art. I, Sec. I, Par. XVIII. This claim was not expressly articulated in Harper’s motion for new trial, twice amended, and was not raised at or before trial. The only constitutional issue discussed in Harper’s motion and accompanying brief concerned the constitutionality of OCGA § 16-13-32.5, addressed previously in Division 1. The claim of double jeopardy was solely premised on OCGA § 16-1-7. To the extent that either constitution would be more expansive than OCGA § 16-1-7, the constitutional issue not having been clearly raised and distinctly ruled upon in the trial court, it is thus not passed upon here. Grice v. State, 199 Ga. App. 829 (1) (406 SE2d 262) (1991).

3. Harper asserts that the court erred in sustaining the State’s objection to his question to the State’s expert witness: “[i]n your experience . . . has the state crime lab ever falsely identified a substance as cocaine?” The court informed Harper he could question the witness on his own experience and qualifications. Harper makes no assertions about what information the witness may have been able to provide that was beyond this.

As in Stephens v. State, 207 Ga. App. 645, 646 (1) (428 SE2d 661) (1993), so here: “The right of cross-examination is not abridged where examination is limited by the trial judge to relevant matters by proper questioning. [Cits.] Controlling the scope or extent of cross-examination is a matter resting within the sound discretion of the trial court [cit.] and, in the absence of an abuse of discretion in controlling the scope or extent thereof, an appellate court will not interfere. [Cit.] The record does not establish that the trial court abused its discretion in this matter.”

4. Harper next asserts that the court erred in allowing the arresting officer to testify about her actions and behavior in other cases where identification of suspects was an issue, on the ground it improperly allowed the officer to bolster her testimony regarding his identification. This question was asked on re-direct, after Harper had asked the officer on cross-examination several questions concerning her identification of Harper, and in particular, her identification of black male suspects in other cases. Harper is black. As Harper initiated the topic which was the subject of the question, he cannot now complain that it was pursued thereafter by the State. See Hamilton v. State, 210 Ga. App. 496, 498-499 (3) (436 SE2d 500) (1993); Beasley v. State, 202 Ga. App. 349 (1) (414 SE2d 663) (1991).

Decided June 1, 1994

Reconsideration denied June 23, 1994

Rogers, Magruder, Sumner & Brinson, Clay M. White, for appellant.

Stephen F. Lanier, District Attorney, Lisa W. Pettit, Assistant District Attorney, for appellee.

5. Finally, Harper enumerates as error the refusal of the court to exercise its discretion under OCGA § 5-5-21 so as to grant a new trial because the verdict was decidedly and strongly against the weight of the evidence. The court did rule on the matter, which is “addressed to the trial judge’s discretion alone. [Cit.]” Stinson v. State, 185 Ga. App. 543, 544 (364 SE2d 910) (1988).

Judgment affirmed.

Andrews and Johnson, JJ., concur.

       For some background, see 9 Ga. State Univ. L.R. 212, 213 (1992).


text:
    A93A0893.
    GALE et al. v. OBSTETRICS & GYNECOLOGY OF ATLANTA, P. C. et al.
    (445 SE2d 366)
   Judge Harold R. Banke.

The appellants, Robin and Kevin Gale, brought this action against the appellees alleging medical malpractice, breach of contract, and breach of confidential relationship based on the medical treatment rendered by the appellees during the course of Mrs. Gale’s pregnancy which resulted in her giving birth to a child with Down’s Syndrome. The trial court dismissed the action for failure to state a claim upon which relief could be granted, resulting in this appeal.

This court originally transferred the appeal to the Supreme Court, on the ground that the constitutionality of a law appeared to be at issue. However, the Supreme Court returned the case to this court for determination of the issues.

1. The appellants’ complaint alleged that Mrs. Gale was not informed of the results of a pre-natal serum Alpha-Fetoprotein test which indicated she was at increased risk of delivering a child with Down’s Syndrome; that the appellees failed to order further diagnostic testing; that the appellees falsely assured Mrs. Gale that her pregnancy was normal; that Mrs. Gale was subjected to rigorous and painful treatment to stop repeated efforts by her body to spontaneously abort the pregnancy; and that the appellees’ failure to inform resulted in the appellants’ being deprived of the opportunity to make an informed decision concerning the course of Mrs. Gale’s pregnancy which would have included the option of a therapeutic abortion. Though couched in terms of breach of contract, breach of confidential relationship, and negligence, the cause of action set forth in their complaint is, in reality, one for wrongful birth.

In Atlanta Ob. & Gyn. Group v. Abelson, 260 Ga. 711 (398 SE2d 557) (1990), “[o]ur Supreme Court . . . held that ‘wrongful life’ claims implicitly and ‘wrongful birth’ claims explicitly ‘shall not be recognized in Georgia absent a clear mandate for such recognition by the legislature.’ [Cit.] Subsequent to the Supreme Court’s decision on Abelson, no such clear mandate . . . has been forthcoming. Accordingly, under the controlling precedent of the Supreme Court of Georgia, the trial court correctly dismissed the complaint for failure to state a claim upon which relief may be granted.” Spires v. Kim, 203 Ga. App. 302, 303 (1) (416 SE2d 780) (1992).

The appellants urge this court to find that the Abelson decision is unconstitutional. However, this court has no authority to overrule or modify a decision of the Supreme Court of Georgia as “[t]he decisions of the Supreme Court [of Georgia] shall bind all other courts as precedents.” Ga. Const. 1983, Art. VI, Sec. VI, Par. VI.

2. The appellants also contend that the trial judge abused her discretion by failing to recuse herself due to a conflict of interest and the appearance of impropriety, because (1) the trial judge was once employed by the law firm which represented some of the appellees; (2) the judge was aided by that law firm in the process of her appointment to the Georgia Supreme Court; and (3) the judge laughed with some of the appellees’ attorneys during the presentation of the appellants’ case.

However, these charges are not supported by citations to the record as required by Court of Appeals Rule 15 (c) (3) (ii). “It is not the function of this court to cull the record on behalf of a party in search of instances of error. ‘ “The burden is upon the party alleging error to show it affirmatively by the record.” ’ [Cit.]” Armech Svc. Co. v. Rose Elec. Co., 192 Ga. App. 829, 830 (1) (386 SE2d 709) (1989). As the appellants have not met this burden, the judgment of the trial court will not be disturbed.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.

Decided June 23, 1994.

Linda D. Thompson, for appellants.

Long, Weinberg, Ansley & Wheeler, Sidney F. Wheeler, Stephen H. Sparwath, Alston & Bird, Judson Graves, Holly B. Barnett, for appellees.