text:
    A97A0508.
    RYANS v. THE STATE.
    (487 SE2d 130)
   Smith, Judge.

Jarvis Jarmell Ryans, Johnathan Moran Davis, and Leroy Thomas Foster II were indicted by a Bibb County grand jury on one count of possession of cocaine with intent to distribute, OCGA § 16-13-30 (b). They were convicted by a jury. Their motions for new trial were denied, and Ryans brings this appeal.

1. Ryans enumerates the general grounds, contending that the evidence was insufficient because it shows only his mere presence at the scene. Construed in favor of the jury’s verdict, the evidence showed that several officers with the Macon Police Department responded to a call from a local resident that drug transactions were taking place at two apartment buildings that had been the site of numerous drug arrests, searches, and complaints in the past. When the officers arrived at the scene, two individuals standing on the street attempted to run; one was apprehended. After placing that individual in a police car, the officers found three men, later identified as Ryans, Davis, and Foster, in the dark at the rear of the apartments, on or near a railing between the buildings. Drugs were found beside a chair next to the railing. More drugs were found on the ground on the other side of the railing, directly below the men. An officer testified that a total of 35 rocks of crack cocaine were recovered, worth approximately $700. According to the officer, this was more cocaine than a user would have in his possession. No pipes or smoking materials were found by the police, but Ryans was carrying a total of $136 in twenties, tens, and six ones and a flashlight with a blue lens, which he contended he used in his employment at a car wash. In the officer’s opinion,' not many drug dealers would allow such a large quantity of cocaine out of their possession for very long.

Questioned by the police, Ryans told them that he had come to the apartments to visit a friend, Williams. The police inquired of Williams’s sister, a resident, who told them orally and in a written statement that Williams did not live there and was not supposed to be there. The sister testified at trial and affirmed her written statement, although she acknowledged on cross-examination that her brother had a key to her apartment and occasionally stayed there.

Ryans signed a waiver of counsel form and gave a written statement to police in which he acknowledged he knew about the cocaine but claimed that it belonged to Davis and Foster. Davis, on the other hand, denied possessing the cocaine but implicated Ryans and Foster, while Foster volunteered to the arresting officer that he had knowledge of the cocaine. Ryans took the stand and denied having possessed or seen any drugs on the night in question. He testified that he used the flashlight to clean out the car wash equipment at his job, but when asked why he could use it for such a purpose without a strong white light, he asserted that the police put the blue lens in his flashlight. He also asserted that the police fabricated his statement. Davis and Foster also testified, denying any knowledge of the drugs.

A finding of constructive possession of drugs “must be based upon some connection between the defendant and the contraband other than spatial proximity.” (Citations and punctuation omitted.) Llaguno v. State, 197 Ga. App. 789, 790-791 (1) (399 SE2d 564) (1990). Such additional evidence may include: inculpatory statements, Harvey v. State, 212 Ga. App. 632, 634 (2) (442 SE2d 478) (1994); giving a false explanation to the police for presence on the scene, Thomas v. State, 207 Ga. App. 140, 145 (426 SE2d 923) (1993), Bean v. State, 204 Ga. App. 242, 243 (1) (418 SE2d 798) (1992); or possessing large sums of cash or paraphernalia consistent with the sale of contraband, Mitchell v. State, 222 Ga. App. 453 (474 SE2d 306) (1996), Whitfield v. State, 217 Ga. App. 402, 405 (457 SE2d 682) (1995) . And while mere presence is insufficient to convict an accused of being a party to a crime, the testimony of an accomplice tending to connect the accused to the crime will support a jury’s verdict if supported by slight evidence, which may be circumstantial. Earl v. State, 214 Ga. App. 891, 892 (1) (449 SE2d 361) (1994).

After the jury’s verdict of guilty, Ryans can no longer rely on the presumption of innocence, and this Court cannot re-weigh evidence or judge the witnesses’ credibility. We must construe the evidence to uphold the verdict and determine only whether the evidence is such as to enable any rational trier of fact to find Ryans guilty of the crime charged beyond a reasonable doubt. Clark v. State, 197 Ga. App. 318, 320 (1) (398 SE2d 377) (1990). Ryans was found in the presence of a large quantity of cocaine, admitted knowledge of the presence of the cocaine, gave an explanation for his presence that was inconsistent with the testimony of another witness, had no equipment for personal use of the drug but had cash and a flashlight with a blue lens on his person, and was implicated by a co-defendant. “Under these circumstances, we find the evidence against [Ryans] was sufficient to find [him] guilty of joint constructive possession, or at least as a party to the crime. [Cits.]” Harvey, supra at 634 (2).

2. Ryans also asserts the trial court erred in permitting a police officer to give opinion testimony regarding the customs of the drug trade and the amount of cocaine that would be possessed by a dealer as opposed to a casual user. See generally Davis v. State, 200 Ga. App. 44, 45-46 (2) (406 SE2d 555) (1991). We do not reach this issue, however, because Ryans made no objection to this testimony. In order to assert this ground on appeal, it was necessary for Ryans to make a specific objection at the time the evidence was offered. His failure to do so resulted in a waiver of his right to object on appeal. Smarr v. State, 199 Ga. App. 572, 573 (2) (405 SE2d 561) (1991). Ryans contends on appeal that he did not object because “any objections made would be helping the state present [its] case against the defendant.” This is arguably true of any contemporaneous objection, however. A defendant must choose between giving the trial court an opportunity to rule, although incidentally offering some guidance to the State, and failing to preserve an issue for appeal. “A party can not during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.” (Citations and punctuation omitted.) Wilkes v. State, 221 Ga. App. 390, 394 (4) (471 SE2d 332) (1996) .

Judgment affirmed.

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

Decided May 29, 1997.

Before Judge Wilcox.

James M. Cranford, for appellant.

Charles H. Weston, District Attorney, Laura D. Hogue, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A97A0522.
    STARRETT v. COMMERCIAL BANK OF GEORGIA.
    (486 SE2d 923)
   Ruffin, Judge.

Commercial Bank of Georgia (“the Bank”) sued Jerry F. Starrett regarding certain Clayton County property (“the property”) she owned with her ex-husband, Robert, who is now deceased. The Bank alleged that it was the intended beneficiary of the Starretts’ divorce decree, which provided that the property would be sold and the proceeds used to satisfy a debt owed the Bank. Accordingly, the Bank asked that the trial court (1) direct Starrett to convey her interest in the property to the Bank to satisfy the debt, or (2) order that the property be sold and the proceeds applied against the debt. Agreeing that the Bank was a third-party beneficiary to the divorce decree, the trial court granted the Bank’s motion for summary judgment and awarded it all proceeds from the sale of the property. Starrett appeals, and we affirm.

“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. OCGA § 9-11-56 (c).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). The record shows that Robert and Jerry Starrett purchased the property in 1990. On June 6, 1993, Robert Starrett executed a deed to secure debt on the property as security for a promissory note to the Bank. The Starretts divorced later that year. At the time of the divorce, the Starretts reached a settlement agreement, which was incorporated in the final judgment and decree of divorce.

Pursuant to that agreement, the Starretts stipulated that the property would be “placed on the open market for sale and . . . sold at a price not less [than] $81,000.00 unless otherwise agreed to by the parties.” They further agreed that “[t]he proceeds of the sale of the property [would] be disbursed in the following order: (a) All property taxes and costs incidental to the sale . . . ; (b) Payment in full of [Robert Starrett’s] outstanding loan with Commercial Bank which has a present balance of approximately $63,000.00; (c) The remaining proceeds [to] be divided 35 percent to [Robert Starrett] and 65 percent to [Jerry Starrett].” Despite this provision, the Starretts did not sell the property following the divorce.

Robert Starrett died in 1995. In lieu of the Bank’s foreclosure on the property, the executor of Robert Starrett’s estate transferred his interest in the property to the Bank. The Bank subsequently commenced this action to obtain Jerry Starrett’s interest in the property.

1. In her first enumeration of error, Starrett argues that the trial court erroneously concluded that the Bank was a third-party beneficiary to the divorce decree. Starrett does not dispute that the settlement agreement within the divorce decree constitutes a contract. See Kruse v. Todd, 260 Ga. 63, 67 (1) (389 SE2d 488) (1990) (“The meaning of a settlement agreement incorporated into a divorce decree should be determined according to the usual rules governing the construction of contracts.”). Instead, she argues that the agreement does not manifest any intention by the Starretts to benefit the Bank. We find no error in the trial court’s conclusion that, as a matter of law, the Starretts intended to benefit the Bank.

Pursuant to OCGA § 9-2-20 (b), “[t]he beneficiary of a contract made between other parties for his benefit may maintain an action against the promisor on the contract.” We have further defined a “third-party beneficiary contract” as “‘one in which the promisor engages to the promisee to render some performance to a third person. (Cit.y ” LDH Properties v. Morgan Guaranty Trust Co. &c., 145 Ga. App. 132, 133 (2) (243 SE2d 278) (1978). “A third party has standing to enforce [such] a contract ... if it clearly appears from the contract that it was intended for his benefit; the mere fact that he would benefit from performance of the contract is insufficient. [Cit.]” City of Atlanta v. Atlantic Realty Co., 205 Ga. App. 1, 6 (3) (421 SE2d 113) (1992).

Starrett argues that the Bank is only an incidental, rather than intended, beneficiary to the divorce decree. We disagree. The divorce decree does not simply provide for sale of the property. It specifically requires “[p]ayment in full of [Robert Starrett’s] outstanding loan with Commercial Bank which has a present balance of approximately $63,000.00.” Through the agreement, the Starretts agreed to render performance to a named third party, the Bank. “It is clear on the face of the contract that the [Starretts] intended [the Bank] to be the beneficiary of [the sale of the property] by their inclusion of [this payment provision] as a condition of the contract.” Atlantic Realty Co., supra at 6.

Starrett further claims that the Bank cannot qualify as an intended third-party beneficiary because the sale provision actually benefited her ex-husband, whose debt to the Bank was to be extinguished. That Robert Starrett might have benefited from the sales provision, however, does not undermine the Bank’s third-party beneficiary claim. See Plantation Pipe Line Co. v. 3-D Excavators, 160 Ga. App. 756 (287 SE2d 102) (1981). In Plantation Pipe Line, this Court held that a property owner who sustained damage during county sewer construction was a third-party beneficiary to the contract between the county and the construction company. The contract provided that “ ‘[a]ny damage to existing structures or utilities shall be repaired or made good by the Contractor (defendant) at no expense to the [county].’ ” Id. at 757. Rejecting the third-party beneficiary argument, the trial court found that the parties intended only the indemnity provisions to benefit the county. Id. We reversed the trial court’s decision, concluding that the property owner was “a member of a relatively small group of intended beneficiaries, that is, those individuals whose obstructions and utilities were in such proximity to the construction work . . . as to be reasonably afforded the contractual protection incorporated in the contract. . . .” Id. at 759.

Thus, although the county in Plantation Pipe Line certainly profited from the contract’s hold harmless provisions, we found that these provisions were also intended to benefit injured third-party property owners. Regardless of whether Robert Starrett might have benefited from the sale provision in the divorce decree, the face of the contract in this case similarly reveals a specific intention to benefit the Bank.

Starrett also argues that we should not uphold a decision that “would allow any creditor provided for in a divorce decree to sue in the capacity of a third party beneficiary.” Starrett cites no binding authority to support this position, and our research has revealed no Georgia case law addressing third-party beneficiaries in this context.

Other jurisdictions have produced conflicting decisions on this issue. Applying a third-party beneficiary analysis, the Massachusetts Court of Appeals concluded in Rae F. Gill, P.C. v. DiGiovanni, 612 NE2d 1205, 1207 (Mass. App. 1993), that a separation agreement requiring the husband to pay his wife’s attorney fees rendered the wife’s attorney “a creditor beneficiary who is entitled to proceed directly against [the husband] to recover reasonable attorneys’ fees. . . . [Cits.]” In contrast, the Alabama Supreme Court rejected a third-party beneficiary argument in Costanza v. Costanza, 346 S2d 1133 (Ala. 1977), a case factually similar to this action. In Costanza, a divorce decree provided that the proceeds from the sale of property would be used to satisfy two mortgages held by the creditor bank. Finding that the bank was not a third-party beneficiary to the divorce decree, the Supreme Court concluded that the settlement agreement was intended to finalize the property agreement between spouses, not to benefit the bank. Costanza, supra at 1135.

Decided May 29, 1997.

Before Judge Benefield.

Richard G. Pechin, for appellant.

Moore, Ingram, Johnson & Steele, Eldon L. Basham, David I. G. Matthews, for appellee.

Despite the similarity between this case and Costanza, we do not agree that the Bank’s third-party beneficiary argument fails simply because the overall purpose of the Starretts’ divorce decree was to effectuate the divorce and finalize the property agreement, rather than to benefit the bank. Notwithstanding the ultimate purpose of the agreement, individual contract provisions may be intended to benefit a stranger to the contract, thus creating a third-party beneficiary. See Atlantic Realty Co., supra; Plantation Pipe Line, supra. In this case, the sale provision in the divorce decree was clearly intended to benefit the Bank by satisfying an outstanding loan balance. The trial court properly found that, as a matter of law, the Bank is a third-party beneficiary to the divorce agreement.

2. In her second enumeration of error, Starrett argues that the trial court erred in granting the Bank’s motion for summary judgment and awarding the sale proceeds from the property to the Bank. Other than making conclusory statements, Starrett has presented no argument or citation of authority supporting this enumeration. Furthermore, she “concedes that if [the Bank] is indeed a third party beneficiary to the Final Judgment and Decree of Divorce then the Summary Judgment Order is correct.” Given Starrett’s concession and her failure to properly support this argument, we need not address this enumeration further. Court of Appeals Rule 27 (c) (2).

3. Finally, the Bank has moved for an award of damages pursuant to OCGA § 5-6-6, claiming that this appeal is “frivolous.” We do not find that Starrett pursued this appeal “for delay only.” OCGA § 5-6-6. Accordingly, the Bank’s motion for damages for frivolous appeal is hereby denied.

Judgment affirmed; motion for damages for frivolous appeal denied.

Birdsong, P. J, and Eldridge, J, concur.

       To further support its decision, the court also cited an Alabama procedural rule providing “ ‘that [a] creditor would not have standing to enforce such a debt under the divorce decree.’ ” Costanza, supra at 1135. We have found no equivalent Georgia authority.


author: McMurray, Presiding Judge.

text:
    A97A0825.
    BALLOU v. THE STATE.
    (487 SE2d 140)
    Decided May 29, 1997.
    Before Judge Boyett.

      James E. Wilbanks, for appellant.

      Kermit N. McManus, District Attorney, Stephen E. Spencer, Assistant District Attorney, for appellee.
   McMurray, Presiding Judge.

Defendant was tried before a jury and convicted of two counts of aggravated child molestation (a different victim in each count) and one count of felony obstruction of law enforcement officers. This appeal followed. Held:

Defendant challenges his convictions for aggravated child molestation, arguing that inconsistencies in the victims’ accounts of the acts which constitute the crimes charged render the State’s proof insufficient to authorize the jury’s verdicts under the standard prescribed in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). This assertion is without merit.

Testimony regarding the victims’ out-of-court statements as to the manner in which defendant committed the crimes charged, and the victims’ trial testimony concerning these criminal acts, is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of aggravated child molestation as charged in two counts of the indictment. Jackson v. Virginia, 443 U. S. 307, supra; Morales v. State, 210 Ga. App. 414, 415 (1) (436 SE2d 528). Each victim’s credibility was properly resolved by the jury. Fuller v. State, 211 Ga. App. 104, 106 (6) (438 SE2d 183).

Judgment affirmed.

Beasley and Smith, JJ., concur.


author: Judge Harold R. Banke.

text:
    A97A0951.
    FORSYTHE v. GAY.
    (487 SE2d 128)
   Judge Harold R. Banke.

Enumerating three errors, Daniel Wesley Forsythe appeals the dismissal of his suit against Annie Ray Gay.

The following facts are undisputed. Forsythe and Gay were involved in an automobile accident on October 15, 1993. As the statute of limitation was about to expire, Forsythe filed suit against Gay, with an entry of service entered the next day on Gay’s daughter, Mildred Spradlin, who lived next door. Gay, however, was never served with a copy of the suit, and in her amended answer, she raised the issue of insufficiency of service of process. On that basis, the trial court dismissed Forsythe’s action. Forsythe appeals. Held:

1. Forsythe contends that the trial court erred in dismissing his complaint because the court failed to consider the “continuing familial relationship” between Gay and Spradlin. Forsythe claims that the service on Spradlin, Gay’s daughter, was legally sufficient to satisfy the statutory requirements of OCGA § 9-11-4 (b). We disagree. The Supreme Court of Georgia abolished the more lenient “substantial compliance” rule with respect to service of process. Bible v. Bible, 259 Ga. 418, 419 (383 SE2d 108) (1989). The court held that “OCGA § 9-11-4 (d) (7) means exactly what it states, and that service under this section must be made as provided.” Id. at 419.

OCGA § 9-11-4 (d) (7) requires that a copy of the summons and complaint be delivered to a defendant personally, or be left at his “dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. . . .” In this case, service was not effectuated on Gay or on someone dwelling at Gay’s usual place of abode. Compare Wolfe v. Rhodes, 166 Ga. App. 845, 847 (305 SE2d 606) (1983) (continuing familial relationship between defendant and her resident husband). Gay’s evidence that service on her daughter failed to strictly comply with the statute overcomes the presumption of proper service created by the return. See Nucor Corp. v. Meyers, 211 Ga. App. 787, 788-789 (1) (440 SE2d 531) (1994).

Notwithstanding Forsythe’s argument to the contrary, Finch v. Weaver, 213 Ga. App. 514 (445 SE2d 289) (1994) neither demands nor authorizes a different result. In Finch, unlike here, Weaver’s sister was served the summons and complaint on the common grounds of a family compound. Id. at 515. At the time of service on the defendant’s sister, the compound was considered one piece of property and had no separate addresses for the various occupants. Id. at 515 (1).

2. Forsythe contends that the trial court failed to consider whether Spradlin was acting as Gay’s agent at the time of service. He alleges that because Gay’s mental health was declining, Spradlin became her mother’s de facto agent in handling her affairs.

OCGA § 9-11-4 (d) (7) authorizes service to “an agent authorized by appointment or by law to receive service of process.” However, the record fails to show that Spradlin was ever appointed Gay’s legal guardian or that Spradlin obtained a power of attorney from Gay. See Faulkenberry v. Elkins, 213 Ga. App. 472, 474-475 (2) (445 SE2d 283) (1994) (mental or physical impairment is never presumed and must be proven). In strictly construing OCGA § 9-11-4 (d) (7) as we must, the statute by its plain terms precludes Forsythe’s de facto agency argument. See Bible, 259 Ga. at 419.

Decided May 29, 1997.

Before Judge English.

Kushinka, Calhoun & Godwin, Fred E. Godwin, Jr., for appellant.

Beck, Owen & Murray, Richard L. Collier, for appellee.

3. Less than ten days after filing suit, Forsythe received $25,000 from State Farm Mutual Automobile Insurance Company (“State Farm”) in exchange for releasing Gay and State Farm from any and all claims, except those under his own uninsured/underinsured motorist coverage with State Farm. Forsythe contends that Gay was estopped from asserting the defense of insufficiency of service of process because State Farm duped him into releasing his claims at a time when State Farm knew about the service problem. See OCGA § 24-4-27. This argument is factually flawed for several reasons. “In order for an equitable estoppel to arise, there must generally be some intended deception in the conduct or declarations of the party to be estopped. . . .” Id. In light of the undisputed evidence that Gay was never informed of the pending litigation, it defies logic to conclude that she intentionally deceived Forsythe. The allegation that State Farm somehow duped Forsythe has no relevance because State Farm is not a party to this case. In any event, Forsythe’s counsel knew or should have known about the service problem before State Farm learned of the same. Inasmuch as Forsythe failed to cite to any record evidence or to offer any supporting legal authority, this fanciful argument is deemed abandoned. Court of Appeals Rule 27 (c) (2) and (3) (i).

Judgment affirmed.

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

       Gay was in the hospital on the day that Spradlin accepted service.


text:
    A97A0976.
    JACKSON v. THE STATE.
    (487 SE2d 142)
   Judge Harold R. Banke.

William Freeman Jackson was convicted of burglary, robbery by force, and aggravated assault. On appeal, he challenges the admission of similar transaction evidence and the sufficiency of the evidence.

This case arose after the 76-year-old victim returned from a trip to the grocery store in the early afternoon. Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996) (evidence on appeal must be viewed in a light most favorable to the verdict). Just as she set the groceries and her purse down on the kitchen counter, a man she identified as Jackson walked in and asked if “Mrs. Robinson” lived there. Jackson then grabbed the victim by the shoulders and shook her. After she tried to kick him, he slapped her on the head and knocked her over the washing machine, then grabbed her arm, shook her, and threw her on the floor. When she got up, he threw her down again. After throwing her down a third time, he reached behind her, grabbed her purse, and left. He drove off in a rusty reddish-brown car. Police apprehended Jackson after he robbed another elderly woman who memorized his license plate number. In the car, police discovered a receipt from the victim’s trip to the grocery store. During a search of Jackson’s home, authorities found dark clothing matching the description the victim gave of Jackson’s clothing. Held:

1. The trial court did not err in admitting the State’s similar transaction evidence. Kemp v. State, 218 Ga. App. 842, 843 (3) (463 SE2d 385) (1995). The State proffered two similar transactions. The first occurred one week before the offenses at issue when Jackson threatened the similar transaction victim with a large “Rambo-type” knife as she was unloading groceries from her car. He took her purse, then ran to a maroon or rust-colored car, and drove away. Authorities later recovered the knife from Jackson’s car.

The second similar transaction occurred less than three hours before the offense at issue. That victim was an elderly woman who was unloading her car after a shopping trip. Jackson drove up in a maroon car, got out, and approached her, asking a question. Then he grabbed her purse, got back in his car, and drove away. The victim gave his license number to police and reported that a unique pocket knife and pen were in her purse. These were recovered after authorities searched the car and Jackson’s home.

There exists sufficient similarity between the crimes charged and the similar transactions so that proof of the latter tends to prove the former. Hammonds v. State, 218 Ga. App. 423, 425 (461 SE2d 589) (1995). Each of the victims was a vulnerable woman, either due to age or the presence of a child. No other adults were around, and they were preoccupied with unloading their cars, either outside or in an unlocked residence. Jackson stole each victim’s purse and then drove away in the same car.

Complete agreement in the facts is not necessary for admissibility. Id. The similarities here are sufficient to satisfy the requisites of Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). The record also demonstrates that the similar transaction evidence was admitted for the proper purposes of showing identity and modus operandi. See Foster v. State, 211 Ga. App. 22, 23 (2) (437 SE2d 872) (1993); see also Cridiso v. State, 200 Ga. App. 342 (1), 343 (408 SE2d 153) (1991).

Decided May 29, 1997.

Before Judge Johnson.

William M. Shurling III, for appellant.

Charles H. Weston, District Attorney, Graham A. Thorpe, Laura D. Hogue, Assistant District Attorneys, for appellee.

2. The evidence, viewed in the light most favorable to the verdict, would permit a rational trier of fact to find all the essential elements of the crimes. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). The victim’s testimony that Jackson entered her house without permission and grappled with her to get her purse is sufficient to establish the essential elements of burglary. OCGA § 16-7-1 (a); Hambrick v. State, 174 Ga. App. 444, 446-447 (1) (330 SE2d 383) (1985). The victim established the elements of robbery by force with testimony that Jackson slapped her and threw her down three times before taking her purse, which was close behind her on the kitchen counter. OCGA § 16-8-40 (a) (1).

Notwithstanding Jackson’s argument to the contrary, the evidence of his identity was clearly sufficient to link him to the crimes. The victim identified him with certainty in a photographic lineup, a live lineup, and at trial. In light of this evidence, the jury’s rejection of Jackson’s alibi testimony must stand. Pardo v. State, 215 Ga. App. 317 (1) (450 SE2d 440) (1994) (appellate courts do not weigh the evidence or determine witness credibility).

Judgment affirmed.

Beasley and Smith, JJ, concur.

       The victim’s name was not Robinson. She testified that she lived in the house where the offense occurred for 15 years.

       For sentencing purposes, the aggravated assault charge merged with the robbery by force charge.


text:
    A97A1528.
    UBOSI v. LEASECOMM CORPORATION.
    (487 SE2d 141)
   McMurray, Presiding Judge.

Leasecomm Corporation commenced this action against Angie Ubosi to collect on a foreign judgment and obtained a default judgment against her for $1,424.50 plus $440.22 interest when Ubosi failed to appear for trial on January 8, 1997. On January 16, 1997, Ubosi filed an “Objection to the Judgment” which the trial court treated as a motion to set aside the judgment under OCGA § 9-11-60 (d) and denied the “Objection” on March 10, 1997. Ubosi then filed this pro se direct appeal on March 20, 1997. Held:

Decided May 29, 1997.

Before Judge Smith.

Angie N. Ubosi, pro se.

Mann, Bracken, Layng & Knezo, Stephen J. Knezo, for appellee.

Under OCGA § 5-6-35 (a) (8), the discretionary appeal procedures are required to appeal the denial of a motion to set aside a judgment filed pursuant to OCGA § 9-11-60 (d). MMT Enterprises v. Cullars, 218 Ga. App. 559, 560 (2), 561 (462 SE2d 771). The discretionary appeal procedures are also required in actions for damages in which the judgment is for $10,000 or less. OCGA § 5-6-35 (a) (6). Ubosi’s failure in the case sub judice to comply with those requisite discretionary procedures deprives this Court of the jurisdiction. This appeal must therefore be dismissed.

Appeal dismissed.

Beasley and Smith, JJ., concur.


text:
    A97A1619.
    BRADFORD v. JONES et al.
    (487 SE2d 534)
    Decided May 29, 1997.
    Before Judge Bishop.
    Richard T. Bradford, pro se.

   McMurray, Presiding Judge.

Richard Bradford, a pro se inmate, commenced this civil action against Steven Jones and Kimberly Jones, alleging malicious prosecution. The trial court granted summary judgment for the Joneses and denied Bradford’s subsequent motion to set aside that summary judgment. Bradford then filed this direct appeal. Held:

Under OCGA § 42-12-8, the discretionary appeal procedures as set forth in OCGA § 5-6-35 are now required in all civil actions filed by prisoners. Jones v. Townsend, 267 Ga. 489 (480 SE2d 24) (1997). Bradford’s failure to comply with those requisite discretionary procedures deprives this Court of the jurisdiction to consider this case, and the appeal must be dismissed.

Appeal dismissed.

Beasley and Smith, JJ., concur.

Biederman, Hunter & Morrison, Charles J. Biederman, for appellees.


author: McMURRAY, Presiding Judge.

text:
    A97A1754.
    MOULDER et al. v. REILLY et al.
    (487 SE2d 142)
    Decided May 29, 1997.
    Before Judge Langford.
    Robert K. Moulder, Sr., pro se.

    Robert K. Moulder, Jr., pro se.

      Michael J. Bowers, Attorney General, Ralston & Ranter, David E. Ralston, Terry L. Long, for appellees.
   McMURRAY, Presiding Judge.

Robert K. Moulder, Sr. and Robert K. Moulder, Jr., both of whom are prison inmates, filed this civil action in Gilmer County Superior Court seeking redress for alleged violations of their civil rights by various public officials and appellants’ former attorney. In orders entered October 4 and 14, 1996, the superior court dismissed the defendants from the suit on various grounds. On November 1, 1996, the appellants filed a notice of appeal. Held:

Generally, an order granting a motion to dismiss is directly appealable. However, the appellants brought this civil action and the appeal therefrom while prison inmates. The Prison Litigation Reform Act, therefore, applies. OCGA § 42-12-3 (1). The Act provides that “[a]ppeals of all actions filed by prisoners shall be as provided in Code Section 5-6-35,” that is, by application requesting a discretionary appeal. OCGA § 42-12-8.

In this case, the appellants failed to follow the discretionary appeal procedure required by law. “The requirements of OCGA § 5-6-35 are jurisdictional and this court cannot accept an appeal not made in compliance therewith.” Boyle v. State of Ga., 190 Ga. App. 734 (380 SE2d 57) (1989). Accordingly, this direct appeal must be dismissed.

Appeal dismissed.

Beasley and Smith, JJ, concur.


author: Johnson, Judge.

text:
    A97A0905.
    JONES v. THE STATE.
    (487 SE2d 89)
   Johnson, Judge.

After a bench trial, which was not transcribed, the trial judge found Phillip Jones guilty of battery. In this appeal Jones asserts that the trial court erred in failing to direct a verdict of acquittal when the evidence was insufficient to support the conviction.

Decided May 16, 1997

Reconsideration denied May 30, 1997

Before Judge Porter.

Garland B. Cook, Jr., for appellant.

As a preliminary matter we note that the trial court could not have directed a verdict of acquittal because there is no verdict in a bench trial. Therefore, even if a motion for a directed verdict was made, such a motion has no meaning when a case is tried without a jury. See Blair v. State, 216 Ga. App. 545, 546 (1) (455 SE2d 97) (1995). As pointed out in Blair, the issue is whether the evidence was sufficient at trial to support a conviction under the standards of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

It is well-settled law that “[w]ithout a transcript to review, this court must assume as a matter of law that the evidence at trial supported the court’s findings. It is the burden of the complaining party, including pro se appellants], to compile a complete record of what happened at the trial level, and when this is not done, there is nothing for the appellate court to review.” (Citations and punctuation omitted.) Wright v. State, 215 Ga. App. 569, 570 (2) (452 SE2d 118) (1994). But Jones argues that the absence of a transcript, or a stipulation submitted pursuant to OCGA § 5-6-41 (g) in lieu of a transcript, is not fatal to this appeal because the prosecutor admitted at the motion for new trial hearing that the police officer was the only witness for the state. An arresting officer’s testimony alone, considered in conjunction with Jones’ own testimony that he did not commit the crimes, he argues, cánnot be sufficient to establish that the crimes were proven beyond a reasonable doubt. We disagree. The court could have properly allowed the investigating officer to testify about what the victim told him when he arrived at the scene of the incident under the res gestae exception to the hearsay rule. The officer could also have testified that he saw injuries sustained by the victim. And, even if we accept Jones’ assertion that he denied committing the crimes of simple battery at trial, the relative credibility of witnesses and the weight to be given the various evidence is exclusively an issue for resolution by the factfinder. We simply cannot agree with Jones that there is no way that the state could have proved its case with only the testimony of the investigating police officer. Because we are unable to review the evidence presented at trial we must assume as a matter of law that the evidence heard by the trial júdge was sufficient to support the convictions.

Judgment affirmed.

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

Carmen Smith, Solicitor, Karlise Y. Grier, Allison L. Byrd, Assistant Solicitors, for appellee.


text:
    A96A1008.
    JOHNSON v. KNEBEL et al.
    (488 SE2d 131)
    Decided May 30, 1997.
    Before Judge Richardson.

      Sell & Melton, Mitchel P. House, Jr., Jeffrey B. Hanson, for appellant.

      Walker, Hulbert, Gray & Byrd, Michael G. Gray, Jones, Cork & Miller, Wendell K. Howell, Robert C. Norman, Jr., for appellees.
   Judge Harold R. Banke.

In Johnson v. Knebel, 267 Ga. 853 (485 SE2d 451) (1997), the Supreme Court reversed the holding of Division 2 of this Court’s opinion in Johnson v. Knebel, 222 Ga. App. 522 (474 SE2d 636) (1996). In Division 2 of our opinion, we found that the trial court committed no error by allowing a witness to offer his opinion as to which of two automobile collisions likely caused appellant’s injuries. The Supreme Court held that ruling to be error and found the erroneous admission of this testimony likely contributed to the verdict. Therefore, we vacate our earlier opinion, adopt the opinion of the Supreme Court as our own, and reverse the trial court’s judgment and remand for a new trial.

Judgment reversed and remanded for new trial.

Birdsong, P. J, and Beasley, J., concur.


author: Smith, Judge.

text:
    A97A0442.
    NATIONSBANK, N.A. v. GIBBONS et al.
    (487 SE2d 417)
   Smith, Judge.

The sole issue presented by this appeal is the relative priority for enforcement purposes of a Georgia judgment and an earlier obtained but later domesticated foreign judgment against the same debtor. The trial court ruled in favor of the Georgia judgment. We granted this discretionary appeal to clarify the law concerning this issue of first impression, and we now affirm.

NationsBank, N.A. d/b/a Sovran Bank, N.A., Credit Card obtained a judgment in Virginia against Troy Gibbons in 1988. The University of Michigan obtained a judgment against Gibbons in the State Court of Fulton County in June 1993. The university then obtained a fi. fa. and instituted garnishment proceedings to enforce its judgment. On May 21, 1996, NationsBank domesticated its Virginia judgment by filing it in the State Court of Fulton County in accordance with OCGA § 9-12-132. It then obtained a fi. fa. and instituted garnishment proceedings to enforce its judgment.

When Gibbons’s employer answered, he indicated that Gibbons was currently being garnished by the university. NationsBank filed a motion for distribution of money pursuant to OCGA § 18-4-96, claiming that it was entitled to the garnishment funds in the court’s registry because its judgment was obtained first. The university objected. The trial court ruled that the university’s lien was superior to that of NationsBank.

OCGA § 18-4-96 provides that when “money or other property in court is subject to the claims of more than one garnishment case, any interested party to any one of the garnishment cases may make a motion to the court in his case for the distribution of the money or other property. . . . Upon hearing the motion, the court shall enter an order directing that the clerk be paid the court cost of each garnishment proceeding first, and all remaining money or other property shall be distributed in accordance with the law governing the relative priorities of claims, judgments, and liens.”

NationsBank contends the trial court erred in ruling that the university’s judgment constituted the senior lien. It argues that under the full faith and credit clause of the U. S. Constitution, Art. 4, Sec. 1, the judgment of a sister state must be treated in Georgia exactly as Georgia judgments are treated, and that because the NationsBank judgment was entered earlier, it is superior.

It is clear that in Georgia, the relative position of judgment liens is determined by seniority; an older Georgia judgment has priority over a newer judgment. Fas-Pac, Inc. v. Fillingame, 123 Ga. App. 203 (180 SE2d 243) (1971). According to NationsBank, it follows that if accorded full faith and credit, its Virginia judgment must therefore have priority as well, notwithstanding that it was not domesticated until later. NationsBank argues that when its judgment was domesticated, the domestication then “related back” to the date of its judgment.

We reject this interpretation of the term “full faith and credit.” It is well established that the doctrine of full faith and credit renders the judgments and adjudications of courts of sister states of competent jurisdiction res judicata in this state. See, e.g., Tandy Computer Leasing v. Bennett’s Sue. Co., 188 Ga. App. 594 (373 SE2d 647) (1988). The issues decided in a foreign judgment may not be relitigated. But enforcement is another matter.

Although a foreign judgment is entitled to full faith and credit, to be enforced in Georgia it must first be domesticated. For this purpose, the Uniform Enforcement of Foreign Judgments Law, OCGA §§ 9-12-130 to 9-12-138, provides a method for domesticating judgments obtained outside Georgia. The Act does not provide that a foreign judgment is automatically enforceable in the same manner as a Georgia judgment. Instead, it provides that “[a] filed foreign judgment has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, staying, enforcing, or satisfying as a judgment of the court in which it is filed and may be enforced or satisfied in like manner.” (Emphasis supplied.) OCGA § 9-12-132.

It is true that under Georgia law, a judgment lien begins on the date of entry of judgment and attaches to all property of the defendant owned by him at that time and all property subsequently acquired. Cohutta Mills v. Hawthorne Indus., 179 Ga. App. 815, 818 (2) (348 SE2d 91) (1986). But OCGA § 9-12-80, from which this principle derives, applies only to “[a]ll judgments obtained in the superior courts, magistrate courts, or other courts of this state.” Until a foreign judgment is domesticated in Georgia, it is not the judgment of a court “of this state.” Although it is entitled to full faith and credit, Georgia legal process may not be used to enforce it. That right is acquired by domestication, which makes the foreign judgment a judgment of this state as well. “The Uniform Enforcement of Foreign Judgments Law is a summary procedure for endowing a filed foreign judgment with the ‘same effect’ as a judgment of the court in which it is filed.” Hammette v. Eickemeyer, 203 Ga. App. 243 (416 SE2d 824) (1992). Because the foreign judgment cannot be enforced until it is domesticated, it follows that it cannot acquire position relative to other liens.

This is a sound rule. Judgment creditors are not necessarily aware of outstanding foreign judgments against the judgment debtor. It would be fundamentally unfair to allow foreign judgment creditors to stand idly by while other judgment creditors institute enforcement proceedings against a debtor in Georgia, and then take advantage of those proceedings to satisfy foreign judgments of which the institutors had no notice. Judgment creditors should not be required to search the records of the 50 states, the District of Columbia, the United States government, and the territories of the United States before instituting enforcement proceedings against a Georgia judgment debtor in order to ensure that they will be allowed to reap the benefits of their efforts.

The trial court did not err in ruling that the university’s judgment was entitled to priority.

Judgment affirmed.

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

Decided May 30, 1997.

Before Judge Bridges, pro hac vice.

Fred J. Hanna, Jerry C. Tootle, Jr., Elizabeth C. Whealler, for appellant.

Stokes, Lazarus & Carmichael, Richard J. Joseph, for appellees.


author: Beasley, Judge.

text:
    A97A0387.
    PERKINS v. THE STATE.
    (487 SE2d 365)
   Beasley, Judge.

Perkins appeals his conviction for armed robbery and the denial of his motion for new trial.

Johnson received a cash settlement of $500 for a car accident. He and his wife drove from picking it up to meet a friend named Drea who was interested in buying his car. Johnson wanted to buy another car. They first stopped to visit with a friend who lived down the street from Drea, and while there, Smith and Howard walked up to them and initiated conversation.

Smith, who lived with Drea, and Johnson had a ten-year friendship, and Johnson had told him several days earlier of his $500 settlement. Johnson had met Howard but otherwise barely knew him. Howard told Johnson he knew someone with a car similar to Johnson’s and suggested they go to Smith’s house to call about that car. They did so, and upon arrival, Howard went to a back room on the pretext of using the telephone. Johnson remained in the kitchen talking to Teresa Edwards, her mother and her niece.

There was a knock at the back door. It was Howard’s brother, Perkins, whom Johnson did not know. He told them he wanted to see Howard. Perkins and Howard stepped outside. When Johnson followed, closing the door behind him, the pair turned and pointed guns in his face. Perkins said, “Give it up. I know you got it.” They took Johnson’s beeper and the $500 cash from his wallet and told him to run and jump the fence in the back yard. Johnson complied, and when he looked back, he saw Perkins and Howard running down the driveway. He jumped back over the fence and hurried to tell his wife, who was in the car, what had transpired. He also told Smith and Teresa Edwards, then went back up the street to his friends’ house, told them what happened, and borrowed money for gas. After buying gas, he drove to the police station and reported the incident to Officer Mason. He gave Mason the perpetrators’ nicknames as the only names he knew and described them and the getaway car.

Investigator Seagraves was assigned the case the following day. By then, Johnson had been able to determine the robbers’ real names and the address where they lived and related this to Seagraves. Perkins was arrested the next day.

1. Perkins first assigns error to the court in allowing the State to introduce hearsay statements made by Johnson on two occasions.

(a) The prosecutor called Teresa Edwards as a witness and asked if she spoke to Perkins, Howard or Johnson shortly after they went out the back door of her house, which prompted Perkins to object on hearsay grounds. See OCGA § 24-3-1. The prosecutor responded, “Your Honor, it is a statement made . . . immediately after the incident occurred.” The court overruled the objection, and Edwards was permitted to testify that seven to eight minutes after Johnson went out the back door of her house with Howard and Perkins where he was robbed, Johnson came to her front door “hysterical” and “short of breath” and related to Edwards what had transpired.

Perkins argues that the admission of this testimony allowed the State to bolster Johnson’s testimony by introducing evidence that he had made a similar statement shortly after the alleged incident. Perkins also complains that the court failed to articulate a basis for overruling his objection, but the court’s ruling indicates it accepted the State’s rationale that the statement was made “immediately after the incident occurred” and accordingly falls within the res gestae exception to the general hearsay rule in OCGA § 24-3-3.

“ ‘The admissibility of declarations as part of the res gestae is left to the sound discretion of the trial court, considering the time, circumstances, and statements in question. (Cit.) It is a determination in which very often no precise time when the res gestae ends may be fixed. (Cits.)’ [Cit.]” Shortes v. State, 193 Ga. App. 859 (1) (389 SE2d 354) (1989). The evidence should be admitted if it is relevant and made without premeditation. Robinson v. State, 197 Ga. App. 600, 601 (2) (399 SE2d 94) (1990). Applying these principles, we find no abuse of discretion in the court’s decision to admit Edwards’ testimony.

(b) The court permitted Officer Seagraves to relate information Johnson gave the police over Perkins’ objection that the testimony was hearsay and an attempt to bolster Johnson’s testimony. The court stated it was allowing the testimony for the officer to explain his conduct and to demonstrate whether Johnson gave consistent statements to the police.

OCGA § 24-3-2 provides that “[w]hen, in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence not as hearsay but as original evidence.” The conduct and motives of the police in this case were not relevant to the issues on trial. Momon v. State, 249 Ga. 865 (294 SE2d 482) (1982). The testimony was accordingly inadmissible as original evidence to explain Seagraves’ conduct in investigating the robbery and, subsequently, in arresting the suspects. Teague v. State, 252 Ga. 534 (1) (314 SE2d 910) (1984); Renner v. State, 260 Ga. 515, 517 (2) (397 SE2d 683) (1990). But Johnson was present at trial and could be cross-examined, so the out-of-court statement from Johnson to Sea-graves was admissible as a hearsay exception. Price v. State, 220 Ga. App. 176, 177 (2) (a) (469 SE2d 333) (1996).

Seagraves’ testimony is also admissible as a prior consistent statement: “ ‘Inquiry as to impermissible bolstering no longer is necessary following Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985).’ [Cits.] Moreover, ‘Cuzzort stands for the proposition that where the veracity of a witness is at issue, and that witness is present at trial, under oath, and subject to cross-examination, the prior consistent out-of-court statement of the witness is admissible.’ [Cit.] Here, the victim was cross-examined by [Perkins] on matters related to [his] credibility. . . . Because the victim’s credibility was under attack, the court properly allowed the State to show that [he] had made prior consistent statements to investigators.” Satterwhite v. State, 212 Ga. App. 543, 544 (2) (442 SE2d 5) (1994).

2. Perkins next contends the court committed error in permitting the State to lead Smith, its own witness, to alter testimony the witness had already given.

Smith testified he was standing in the driveway and saw Perkins drive up and quickly walk around to the rear of the house. He said that from a reflection in glass on a toolshed in the back yard, Smith saw Perkins hold a pistol to Johnson’s face. The prosecutor asked Smith how long it was between the time Perkins ran into the back yard and the time he saw the reflection in the tool shed. Smith responded that it was a couple of seconds. The prosecution then asked, “Now, could it have been a couple of minutes?” Perkins objected that the prosecutor was leading the witness, which the court overruled. Perkins contends that Smith’s testimony that Perkins had been in the rear of the house for only “a couple of seconds” before Smith saw the reflection contradicted Johnson’s testimony and would not have allowed enough time for Perkins to have accomplished all that Johnson maintained he had done.

The question was leading because “it [was] so framed as to suggest to the witness the answer which is desired.” James v. State, 215 Ga. 213, 214 (3) (109 SE2d 735) (1959). In rephrasing the question, the prosecutor clearly intended for Smith to change his answer. “Leading questions are generally allowed only in cross-examination,” OCGA § 24-9-63, but the court has discretion to allow leading questions on direct examination. Id. “It would be a rare case in which the trial court’s exercise of discretion on this issue would warrant reversal.” (Citations and punctuation omitted.) Wright v. State, 220 Ga. App. 233, 235 (4) (469 SE2d 381) (1996). In reviewing the testimony as a whole, the court did not abuse its discretion in permitting the leading question on direct.

3. Perkins’ final enumeration is that he was denied effective assistance of counsel by the court’s denial of his motion for new trial before counsel had an opportunity to obtain a trial transcript.

The jury found Perkins guilty on June 5, 1996, and he was sentenced the next day. He was represented at trial by an attorney with the DeKalb Public Defender’s Office. Another attorney in that office, who had played no part in Perkins’ trial, was assigned to represent him on appeal. She moved for new trial on the general grounds on July 3, and the court set the hearing for August 9. The court reporter did not complete the trial transcript until September 30. The first appellate counsel waived argument on the motion.

A third attorney from the same office now represents Perkins and asserts he did not receive effective assistance of counsel on the motion for new trial, in violation of the Sixth Amendment to the United States Constitution. She argues the court abused its discretion under OCGA § 5-5-40 by hearing and determining the motion for new trial before the transcript was finalized and counsel could review it, since the errors now raised would have and should have been raised in that motion. Prejudice is alleged.

Claims for ineffective assistance of counsel raised for the first time on appeal are generally remanded to the trial court for an evidentiary hearing. Tweedell v. State, 218 Ga. App. 518, 520 (2) (462 SE2d 181) (1995). In this instance remand is unnecessary, as was the case in Marcello v. State, 220 Ga. App. 284, 285 (2) (469 SE2d 252) (1996), and cases cited therein.

First, the claim could not be raised by current counsel because of the ethical prohibition against a lawyer acting as a witness regarding a trial in which he participated. For purposes of ineffective assistance claims, public defenders in the same office are treated as members of a law firm. Ryan v. Thomas, 261 Ga. 661 (409 SE2d 507) (1991). Accordingly, asserting a claim against a public defender in the same office is tantamount to doing so against oneself. Id. Perkins’ trial counsel is in effect also his appellate counsel.

Second, even if we were to remand for other counsel to be appointed to pursue the claim, the ultimate result would be the same. The only assertion of ineffective assistance is the second attorney’s waiver of the hearing on the motion for new trial without having first received the transcript. No suggestion is made that had she done do, some identified reversible error would have been argued to the trial court so as to require a new trial. Although it is asserted that, had the transcript been available, counsel would have raised the grounds now presented, we have ruled on and rejected those grounds in this opinion. To establish ineffective assistance, one must show “ ‘[tjhere is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” (Punctuation omitted.) Marcello, supra. Even assuming the presence of the other ingredient, this one is absent.

Decided May 8, 1997

Reconsideration denied June 2, 1997.

Before Judge Castellani.

Kendal D. Silas, for appellant.

J. Tom Morgan, District Attorney, Desiree S. Peagler, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


text:
    A97A0632.
    JOHNSON et al. v. OCONEE STATE BANK.
    (487 SE2d 369)
   Beasley, Judge.

Appellants Hiram and Connie Johnson sued Oconee State Bank, alleging breach of a contractual obligation to provide the Johnsons with long-term financing for the purchase of certain commercial property. The bank sought and won summary judgment on the ground that the parties’ agreement created no such obligation.

The bank agreed to loan the Johnsons $480,000 to finance their purchase of the property. A November 5, 1987, letter from bank loan officer Hansford to the Johnsons set forth five “terms and conditions” to which the loan commitment was subject. The first condition was as follows:

“Real estate note for a term of twelve (12) months at an agreed interest rate of prime plus 2%, adjusted monthly; eleven (11) monthly installments of $200.00 plus interest beginning December 5, 1987 and continuing on the same day of each month with a twelfth and final payment of all remaining unpaid principal balance and all accrued interest due and payable on or before November 5,1988. Provided, however, Borrowers should not otherwise be in default of said note or of the terms and conditions, in lieu of said final installment, the privilege is hereby reserved to renew said note for the amount of the remaining principal balance for an additional twelve (12) month term, at a rate of interest then to be negotiated and agreed upon between Borrowers and Oconee State Bank. Total payout is not to exceed twenty (20) years.”

The Johnsons signed the November 5 letter at the closing, thereby accepting its terms and conditions. They obtained the loan from the bank by also executing a promissory note, a payment schedule and a warranty deed given as security. Hiram Johnson testified that he understood that the bank agreed to continue permanent financing through a series of notes to be executed annually at a rate of prime plus two percent for twenty years, adjusted annually, if he and his wife were not in default after making the first eleven installment payments on the first note. He testified that he and his wife were not in default after the first 11 payments. They did not make the twelfth payment of the balance of the principal.

In either December 1988 or January 1989, the bank presented the Johnsons with a new promissory note requiring a monthly payment of approximately $9,400. Because the Johnsons could not afford such a payment, they began to seek alternative financing. Pending that, they continued making monthly payments of interest on the loan.

In February 1989, the bank sent the Johnsons a letter informing them that it was necessary that they sign another note. They did so on April 6, 1989, and the one-year renewal note bore a principal amount of $477,800. It provided for installment payments of principal payable in eleven monthly installments of $3,982 each, a twelfth and final payment of all remaining unpaid principal and accrued interest, and interest on the unpaid principal balance payable monthly at a rate of two percent above the bank’s prime lending rate adjusted monthly.

In a prior action by the bank against the guarantors of its loan to the Johnsons, bank president Head testified that in the November 5 letter the bank gave the Johnsons an option to renew the original note for an additional 12 months if they were not in default, that it agreed to provide long-term financing through a series of 12-month renewals based on an amortization schedule not greater than a 20-year payout, and that it fulfilled the latter commitment in both the original note and the 12-month renewal. Also in that action, Hans-ford, who drafted the commitment letter, testified that the bank had agreed to provide permanent financing to the Johnsons so long as they were not in default, although the bank could increase the monthly payments of principal upon renewal of the original note. In this appeal, the Johnsons contend that a jury must decide whether the bank was contractually obligated to provide long-term financing at the interest rate specified in the original note.

Taken together, the promissory note, warranty deed, and commitment letter constituted the agreement of the parties. See Grant v. Fourth Nat. Bank of Columbus, 229 Ga. 855, 864 (4) (a) (194 SE2d 913) (1972). Where the terms of the agreement are ambiguous, the intention of the parties is a question for the jury. Williams v. McCoy Lumber Indus., 146 Ga. App. 380, 383 (3) (246 SE2d 410) (1978). On the other hand, where the terms of the agreement are clear and unambiguous, the court will look only to the agreement to find the parties’ intention. OCGA § 13-2-3; Hunsinger v. Lockheed Corp., 192 Ga. App. 781, 783 (1) (386 SE2d 537) (1989).

Decided May 9, 1997

Reconsideration denied June 2, 1997.

Before Judge Barrow.

Hicks & Massey, Frederick V. Massey, for appellants.

J. Hue Henry, Regina M. Quick, for appellee.

Whatever ambiguities existed in the terms and conditions of the commitment letter, by its plain and unambiguous terms the letter did not obligate the bank to provide long-term financing. In the letter, the bank clearly agreed to provide financing under a 12-month note at an agreed interest rate, and it arguably agreed to renew the note for an additional 12 months at an interest rate to be negotiated and agreed upon if the Johnsons were not in default. Potential long-term financing was conditioned on the parties reaching mutuality in later market conditions, after a payment history. Any obligation by the bank to renew the note for even the additional 12 months was unenforceable under the principle that <£[u]nless an agreement is reached as to all terms and conditions and nothing is left to future negotiations, a contract to enter into a contract in the future is of no effect. [Cits.]” Malone Constr. Co. v. Westbrook, 127 Ga. App. 709 (194 SE2d 619) (1972). “A contract is not complete and enforceable until there is a meeting of the minds as to all essential terms. [Cits.]” Clark v. Schwartz, 210 Ga. App. 678, 679 (436 SE2d 759) (1993). The interest payable on a loan is an essential term. See Bridges v. Reliance Trust Co., 205 Ga. App. 400, 403 (2) (422 SE2d 277) (1992).

The bank was entitled to summary judgment.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


text:
    A97A0990.
    JONES v. THE STATE.
    (487 SE2d 371)
   Judge Harold R. Banke.

David Anthony Jones was convicted of two counts of armed robbery, one count of criminal attempt to commit robbery, and two counts of possession of a firearm during the commission of a felony. Following the denial of his motion for new trial, Jones enumerates nine errors.

On April 10, 1994, at closing time, three men robbed Larissa Sirotta, an employee of TCBY Yogurt (“TCBY”), at gunpoint. Sirotta identified Jones as the man who went behind the counter and grabbed the cash out of the register. Police tracked the robbers to a nearby apartment complex, where they lost the trail.

Five nights later, the same three men targeted the same TCBY store, attempting another robbery. Employee Justin Cranford, who recognized the men, was instructed to leave the cash drawer open and step back. At this point, Sirotta inadvertently came up to the front of the store. Sirotta instantly remembered Jones from the April 10 armed robbery, and the men quickly left. Later that night, three men attempted to rob Donald Addington at gunpoint in a nearby parking lot. Their effort was thwarted when Addington escaped by driving away.

About an hour and a half later, the robbers encountered Matthew Jones, an executive chef at J. R.’s Log House, a nearby restaurant. Intercepting him in the parking lot, all three men blocked his path, and one man pointed a pistol at his head and ordered him to empty his pockets onto the top of a trash can. After the robbers counted the money and picked through his possessions, Jones pocketed the cash and a personal check.

Matthew Jones immediately contacted local law enforcement officials. Responding to a broadcast report, Officer J. R Godfrey pulled into the entrance of the apartment complex where police had lost the trail a few days earlier, and spotted three men matching the robbers’ description. Upon seeing the police, the men began to run and Godfrey gave chase. Jones was apprehended after he tripped and fell. During a search of the area, investigators discovered the two other men hiding and a discarded silver handgun which Matthew Jones identified as the firearm directed at him. Investigators found approximately $289 in cash and a personal check made payable to Matthew Jones in Jones’ pocket. After waiving his Miranda rights, Jones denied being at the TCBY store on either occasion. Although Jones admitted being present when Matthew Jones was robbed, he told police that he was not involved. Held:

1. Jones contends that the trial court committed reversible error by failing to instruct the jury on alibi, coercion, and good character notwithstanding the fact that he neither objected to the charge as given nor reserved the right to later object.

As to his alibi defense, Jones claimed he was at work during the first armed robbery at TCBY and at home alone during the second attempted robbery there. Assuming that Jones’ sole defense was alibi for the two TCBY robberies, under these facts that instruction was not required. Weathers v. State, 202 Ga. App. 849, 852 (3) (415 SE2d 690) (1992). In cases where the defense of alibi and the question of identity are virtually the same defense, the omission by the court to instruct separately on alibi is not error. Id. Here, as in Weathers, the trial court charged the jury extensively on the issue of identity. The court thoroughly instructed the jury on the reliability of witness identification, level of certainty shown by a witness, and the influence on a witness of extraneous factors. The jury was further instructed that the defendant had no burden to show that another person committed the crime and that the State had the burden to prove identity beyond a reasonable doubt. See Weathers, 202 Ga. App. at 852 (3); OCGA § 16-3-40. See also Busbee, 205 Ga. App. 533, 534 (423 SE2d 3) (1992); Sapp v. State, 155 Ga. App. 485, 486 (2) (271 SE2d 19) (1980).

Jones also contends that his conviction for the armed robbery of Matthew Jones must be reversed because the trial court failed to charge coercion, his sole defense to that crime. Booker v. State, 247 Ga. 74 (274 SE2d 334) (1981). Jones’ testimony that his co-defendant, Devon Borges, forced his participation by pointing a gun at him, giving him orders, and causing him to fear for his life entitled him to a charge on coercion, even absent a request and notwithstanding Matthew Jones’ conflicting testimony and Jones’ contradictory inculpatory statement to police. Where an affirmative defense is raised by the evidence, including a defendant’s own statement, the trial court must present that defense to the jury as part of its charge, even absent a request and even absent a reservation of right to later object. Nelson v. State, 213 Ga. App. 641, 643 (3) (445 SE2d 543) (1994). Although the evidence of coercion was somewhat farfetched, the court could not arbitrarily reject it as unworthy of belief and fail to charge that defense. See Owens v. State, 173 Ga. App. 309, 313 (5) (326 SE2d 509) (1985). The jury was not informed that the State had the burden of proving the absence of the elements of an affirmative defense; nor was it instructed that if it believed that Jones had been coerced, it had to acquit him. Nelson, 213 Ga. App. at 644. We, therefore, reverse Jones’ convictions as to Count 6, the armed robbery of Matthew Jones, and Count 7, possession of a firearm during the commission of that crime, and remand for a new trial as to these counts. See Austin v. State, 218 Ga. App. 90, 91 (2) (460 SE2d 310) (1995).

2. The trial court did not err by not declaring a mistrial after a State witness stated that one of Jones’ co-defendants had already been convicted. Because the fact that his co-defendant, Borges, had been convicted was not inconsistent with Jones’ defense of coercion, Jones cannot prove the requisite harm and error needed for reversal. Durham v. State, 129 Ga. App. 5, 6 (3) (198 SE2d 387) (1973).

3. The trial court properly denied Jones’ motion for directed verdiet of acquittal as to Counts 2 and 7 (possession of a firearm during the commission of a felony). Jones contends that the form of the indictment for Counts 2 and 7 was fatally defective due to the failure to specify the underlying felony. However, Jones waived all exceptions to the mere form of the indictment by failing to urge them in a timely, written, pretrial special demurrer. Bentley v. State, 210 Ga. App. 862 (1) (438 SE2d 110) (1993).

Assuming the issue was not waived, it lacks merit. Because only one armed robbery was committed on April 10, the facts alleged in Count 2 were sufficient to notify Jones of the armed robbery for which he was accused of possessing a firearm. See OCGA § 17-7-54. Although Jones was indicted for two separate armed robberies occurring on April 15, it is apparent that Counts 5 and 7 applied separately to each distinct armed robbery count and this information was sufficient to apprise Jones of the offenses for which he was charged. See Morris v. State, 166 Ga. App. 137, 139 (1) (303 SE2d 492) (1983).

4. The trial court was not obligated to declare a mistrial on its own motion when Officer Godfrey testified that a detective interviewing a co-defendant recommended that Godfrey search Jones’ pockets. Such testimony was admissible to explain the investigator’s conduct in searching Jones’ pockets. OCGA § 24-3-2; Moore v. State, 155 Ga. App. 721, 722 (2) (272 SE2d 575) (1980). See Thompson v. State, 210 Ga. App. 655, 657 (2) (436 SE2d 799) (1993).

5. The trial court did not clearly err in denying Jones’ motion to suppress his custodial statement. Ledford v. State, 220 Ga. App. 272, 273 (469 SE2d 401) (1996). During the Jackson-Denno hearing, Officer Bythewood and Jones presented contradictory testimony about when Jones received the Miranda warnings. Only Bythewood and Jones were present in the interview room. We cannot say that the trial court as factfinder and sole judge of witness credibility clearly erred in rejecting Jones’ account. State v. Wilson, 220 Ga. App. 538, 539 (469 SE2d 804) (1996); Ledford, 220 Ga. App. at 273.

6. The prosecutor was entitled to read the indictment and to pose the statutory voir dire questions to the jury panels. Davis v. State, 189 Ga. App. 439 (2) (376 SE2d 230) (1988); see Hicks v. State, 232 Ga. 393, 399-400 (207 SE2d 30) (1974).

7. Jones contends that the trial court erred in denying his claim of ineffective assistance of counsel. In order to establish ineffectiveness under Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984), Jones must show not only that his trial counsel’s performance was deficient but also that the deficient performance prejudiced his defense. Stephens v. State, 265 Ga. 120, 121 (2) (453 SE2d 443) (1995). Absent a showing of prejudice, no inquiry need be made into counsel’s alleged deficiency. Trammel v. State, 265 Ga. 156 (1) (454 SE2d 501) (1995).

In support of his ineffectiveness claim, Jones raises 13 purported failures of his trial counsel. Four issues were previously discussed in Divisions 1, 2, 4, and 6 above. Four other issues we decline to reach because these grounds differ from the ineffectiveness allegations raised below and are deemed waived. Hayes v. State, 262 Ga. 881, 882 (2) (426 SE2d 886) (1993). As to the remaining issues:

(a) Jones’ contention that his trial counsel failed to investigate his case, especially as to alibi and good character witnesses, is not supported by the record. Counsel testified he met with Jones on numerous occasions, went to the crime scenes twice, and sat through most of Jones’ co-defendant’s trial to familiarize himself with the State’s evidence and witnesses. Counsel explained that he was unable to subpoena any alibi or character witnesses because Jones never supplied him with the requisite information. The trial court’s rejection of this contention was not clearly erroneous.

(b) Jones’ claim that counsel failed to subpoena Anthony Riggins as an alibi witness is contradicted by his counsel’s testimony that Jones failed to provide any complete information as to any witness.

(c) Jones contends that his convictions must be reversed because his counsel failed to request a poll of the jury. However, a poll of the jury for these convictions was not mandatory. Coleman v. State, 256 Ga. 306, 308 (2) (348 SE2d 632) (1986). Moreover, in light of the overwhelming evidence of guilt, the error, if any, was harmless. Palmer v. State, 186 Ga. App. 892, 897 (369 SE2d 38) (1988).

(d) Jones’ assertion that counsel failed to prepare him adequately for trial is not supported by the evidence. Counsel testified that he met with Jones, they met at the crime scene together once although Jones missed a scheduled second meeting there, and counsel advised Jones regarding various aspects of the trial.

(e) Jones failed to show how he was harmed by counsel’s decision not to request a formal presentence investigation under OCGA § 17-10-2. At sentencing, counsel informed the court that Jones had no prior convictions or prior arrests and had no criminal history whatsoever. Counsel requested leniency and pointed out that Jones was only 17 at the time of the offenses and had subsequently completed high school and had gainful employment. Under these facts, we are unable to find any error. See OCGA § 17-10-2 (a).

The overwhelming evidence of Jones’ guilt forecloses the requisite showing of prejudice, even assuming arguendo that trial counsel’s performance was somehow deficient. Trammel, 265 Ga. at 156 (1). The trial court’s finding that Jones was not denied effective assistance of counsel was not clearly erroneous and must be affirmed. Warren v. State, 197 Ga. App. 23, 24 (1) (397 SE2d 484) (1990).

8. Having reviewed the evidence, we find that it was sufficient to sustain the convictions as to Counts 1, 2, and 3 within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See OCGA § 16-2-20 (b) (3); Pryor v. State, 179 Ga. App. 293 (1) (346 SE2d 104) (1986) (party to a crime equally culpable).

Decided May 13, 1997

Reconsideration denied June 2, 1997

Before Judge Stark.

Phillip R. Peacock, John A. Pickens, for appellant.

Daniel J. Porter, District Attorney, Nancy J. Dupree, Assistant District Attorney, for appellee.

9. Based on the foregoing enumerations, the trial court erred in denying Jones’ motion for new trial only as to Counts 6 and 7.

Judgment affirmed as to Counts 1, 2, and 3; reversed only. as to Counts 6 and 7, and remanded for new trial.

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

       An. instruction on good character was never requested, and under these facts that issue is deemed waived. Busbee v. State, 205 Ga. App. 533, 534 (423 SE2d 3) (1992).

       Jones offered his employment record from Waffle House purportedly to prove he was at work at the time of the TCBY armed robbery. However, that exhibit is for a different week.


author: Andrews, Chief Judge.

text:
    A97A0254.
    MORGAN v. THE STATE.
    (487 SE2d 420)
   Andrews, Chief Judge.

Valarie Morgan appeals from the denial of her motion for new trial following her conviction, along with her co-defendant Nowlin, of armed robbery and burglary.

The facts involved here are fully set out in Nowlin v. State, 225 Ga. App. 447 (484 SE2d 14) (1997) and will be supplemented only as needed.

1. As acknowledged by Morgan’s brief, her first four enumerations are the same as Nowlin’s and her arguments are “adopted” from his brief. Therefore, these four enumerations are controlled adversely to Morgan by Nowlin, supra.

2. Morgan’s fifth enumeration is that the trial court erred in denying her motion for severance which was premised primarily upon OCGA § 17-16-2 (a). That section provides that discovery is available at the option of the defendant and, further, that “[w]hen one defendant in a multidefendant case demands discovery under this article, the provisions of this article shall apply to all defendants in the case, unless a severance is granted.”

Morgan argues that, since Nowlin had elected to engage in discovery and she chose not to, OCGA § 17-16-2 (a) mandated a severance. A review of the record reveals, however, that, prior to filing her motion for severance, Morgan filed her Motion For Information Necessary To Receive A Fair Trial, by which she sought discovery from the State which was provided.

In determining the issue of joinder and severance, “[t]he trial judge must examine each case individually and exercise his discretion in ruling on the motion. That decision will not be disturbed unless appellant shows an abuse of discretion. Cain v. State, 235 Ga. 128 (218 SE2d 856) (1975). The burden is on the defendant requesting the severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process. [Cit.] In exercising its discretion, the court must consider three factors: (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, despite cautionary instructions to the contrary; and (3) whether the co-defendants will press antagonistic defenses. [Cit.]” Dennard v. State, 263 Ga. 453, 455 (5) (435 SE2d 26) (1993). See Cook v. State, 221 Ga. App. 831, 832 (1) (472 SE2d 686) (1996); Frazier v. State, 195 Ga. App. 109, 110 (3) (393 SE2d 262) (1990). On appeal, a defendant must show “clear prejudice” from denial of a motion to sever. Linares v. State, 266 Ga. 812, 815 (4) (471 SE2d 208) (1996).

Since Morgan participated in discovery, there is no basis for concluding that she suffered “clear prejudice” from the court’s denial of her motion to sever based on OCGA § 17-16-2 (a).

3. Morgan’s final enumeration, raised by new counsel by motion for new trial, is that her trial counsel was ineffective because his trial strategy was to keep a low profile and allow Nowlin’s more aggressive counsel to divert the jury’s attention from Morgan. As a result, Morgan’s trial counsel made fewer objections than Nowlin’s.

“A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. [Cit.]” Garrett v. State, 196 Ga. App. 872, 874 (1) (397 SE2d 205) (1990). A conviction will not be reversed on the basis of ineffective assistance of counsel unless “‘counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ ” Carter v. State, 176 Ga. App. 632, 633 (337 SE2d 413) (1985), quoting from Strickland v. Washington, 466 U. S. 668, 669 (104 SC 2052, 80 LE2d 674) (1984).

“ ‘ “Effectiveness is not judged by hindsight or by the result. . . . [T]he fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that defendant’s original representation was inadequate. (Cits.)” Hosch v. State, 185 Ga. App. 71, 72 (2) (363 SE2d 258) (1987).’ ” Foreman v. State, 200 Ga. App. 400, 401 (3) (408 SE2d 178) (1991).

Trial counsel’s tactical decision does not equate with ineffective assistance of counsel. Hammond v. State, 264 Ga. 879, 882 (4) (452 SE2d 745) (1995); Riser v. State, 222 Ga. App. 348, 349 (474 SE2d 632) (1996); Williams v. State, 218 Ga. App. 785, 788 (3) (463 SE2d 372) (1995).

Decided June 2, 1997.

Before Judge Oxendine.

Richard O. Allen, for appellant.

Daniel J. Porter, District Attorney, Jefferson B. Blandford, Assistant District Attorney, for appellee.

After reviewing the record, the trial court’s conclusion that counsel was not ineffective was not clearly erroneous. Stewart v. State, 263 Ga. 843, 846 (6) (440 SE2d 452) (1994); Duitsman v. State, 217 Ga. App. 435, 436 (1) (457 SE2d 702) (1995).

Judgment affirmed.

Beasley and Smith, JJ, concur.


author: Birdsong, Presiding Judge.

text:
    A97A0120.
    SMITH v. BRANCH et al.
    (487 SE2d 35)
   Birdsong, Presiding Judge.

Charles A. Smith, executor for the estate of Adele Jennings, sued Franklin Branch and Carriage Cleaners & Laundry, Inc. for chemical contamination of property. Defendants leased the premises from Mrs. Jennings and operated dry cleaning businesses from 1964 until 1991, although Branch contends he quit the premises in 1987. Smith contends an environmental study showed groundwater on the property was contaminated with hazardous chemicals from dry cleaning waste and chemicals. The study showed that the site of contamination corresponds exactly with the site of two machines which stored dry cleaning chemicals, and a video camera “snaked” through the plumbing system showed dry cleaning fluids had caused severe corrosion.

Defendants Branch and Carriage Cleaners moved for partial summary judgment. The trial court granted Carriage Cleaners’ motion as to all claims and granted summary judgment to Branch on plaintiff’s claims for negligence, trespass, nuisance and punitive damages; hence, this appeal. Held:

1. Carriage Cleaners was dissolved in May 1988. This suit was filed in January 1993. The trial court held that the claims against Carriage Cleaners are barred by a two-year statute of limitation as to dissolved corporations which was repealed in June 1989. See OCGA § 14-2-293. Appellant contends the applicable statute of limitation is OCGA § 14-2-1407, which was in effect when this suit was filed and gives a five-year limitation for claims against dissolved corporations.

The drafters, in their legislative comment, have expressly explained that in 1993, OCGA § 14-2-1407 was deleted from the Code because the drafters “never intended for § 14-2-1407 to be applied retroactively to corporations that were previously dissolved under OCGA § 14-2-293. Since corporations dissolved prior to the effective date of the new Code (July 1, 1989) could not have published the newspaper notice required by § 14-2-1407 . . . because they were fully wound up, the effect of this subsection could have [extended] liability for all corporations dissolving prior to July 1, 1989 indefinitely for contingent claims and claims arising after dissolution. Because there was no intent to extend the periods of limitation . . . corporations dissolved prior to July 1, 1989 are entitled to the limitation periods afforded under the former law.”

This result is consistent with the rule that statutes generally prescribe for the future and should not be applied retroactively absent “clear contrary intention.” Polito v. Holland, 258 Ga. 54, 55 (365 SE2d 273). These claims are barred.

2. Appellant contends the trial court erred in granting Franklin Branch’s motion for summary judgment on grounds that claims for negligence, nuisance, and trespass are barred by the four-year statute of limitation as to actions for trespass or damage to realty. See OCGA § 9-3-30.

(a) Appellant asserts that under the Federal Comprehensive Environmental Response, Compensation & Liability Act of 1980 (CERCLA) the statute of limitation does not begin to run until discovery of the contamination and the claims are not barred as they were brought within four years of plaintiff’s discovery of the contamination. However, as appellant did not raise below the applicability of federal law, it is not a fit subject for appeal. Zant v. Moon, 264 Ga. 93 (440 SE2d 657), cert. denied, _ U. S. _ (115 SC 437, 130 LE2d 348). Further, Smith contends the four-year statute of limitation as to property torts (OCGA § 9-3-30) begins to run when a plaintiff “discovered” the contamination. However, Georgia law does not have a “discovery rule” such as is used in federal law. Corp. of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365 (368 SE2d 732).

(b) Appellant contends his claims were timely filed as these are “continuing torts.” Appellant contends Hoffman v. Atlanta Gas Light Co., 206 Ga. App. 727 (426 SE2d 387) allowed a suit to be brought in 1990 for contamination resulting from leaks which occurred in 1956, by holding that the defendant’s leaks did not constitute the nuisance and trespass, but rather that what appellant calls “the existence of the contamination” is the nuisance and trespass. Appellant infers this from Hoffman’s statement at 730 that “[t]he nuisance in this case is the continuing contamination, not the old leaks. ... [If the contamination continues, plaintiff] may maintain the cause of action for the continuing nuisance as well as for the continuing trespass.”

Appellant is incorrect in his reading of Hoffman. We did not hold that “the existence of the contamination” constitutes a continuing nuisance and trespass. Hoffman involved the fact that although the last leak occurred in 1956, the contamination was continuing to spread (migrate) so long as it was not remedied. The contamination sued for in Hoffman was not “completed acts” but involved “fresh acts” of contamination which were continually being committed as the contamination spread. The statutory scheme, including the duty of assignees to abate a nuisance and the corresponding cause of action given for continuance of a nuisance (OCGA § 41-1-5), proves an intent to capture non-completed acts of contamination. Hoffman addressed the fact that the hazardous chemicals in that case were continuing to spread, causing “fresh acts” of contamination; it nowhere implied that a mere continuing “existence” of old, completed contamination constituted a continuing nuisance or continuing trespass. Because the contamination itself caused “fresh acts” of contamination by spreading, the Hoffmans had a cause of action against the original owner of the subject property for causing a continuing nuisance and against the alienee Atlanta Gas Light for continuing a nuisance after request to abate under OCGA § 41-1-5. The Hoffmans were not limited to a suit within four years of the last leak in the pipe in 1956. The cause of action for causing a continuing nuisance is limited to situations where contamination continues to spread.

The continuing nuisance and trespass theories which have long existed in this state refer to whether the nuisance or trespass is a “completed act” or is “permanent.” As said in Hoffman at 730, if contamination is spreading it is not a “completed act.” “According to the Supreme Court in Goble v. Louisville &c. R. Co., 187 Ga. 243, 249 (3) (200 SE 259), ‘every continuance of a nuisance which is not permanent, and which could and should be abated, is a fresh nuisance for which a new action will lie. Consequently . . . suit may be maintained for damages growing out of a nuisance . . . where the damages . . . were inflicted within four years before the time of filing suit, though the act which originally caused the nuisance was not done within the period of limitation of the action. [Cits.]’ [Cits.]” (Emphasis supplied.)

The rules as to motions for summary judgment require the court to construe all evidence and all reasonable deductions in favor of the respondent, and to give the respondent the benefit of every doubt and every reasonable inference. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). Evidence which indicates the contamination allegedly caused by Branch before 1987 continues to migrate, and did so within four years of the date appellant filed this suit, must be construed in appellant’s favor; therefore the statute of limitation for continuing trespass or nuisance does not bar these claims. The trial court erred in granting partial summary judgment to Branch on this ground.

(c) Appellees contend the Hoffman ruling contradicts the holding in Corp. of Mercer Univ., supra at 366, that “[t]he continuing tort theory expressed in Everhart v. Rich’s, Inc., 229 Ga. 798 (194 SE2d 425) (1972) is limited to cases in which personal injury is involved [and] is not applicable to cases which involve only property damage.” (Emphasis supplied.) However, the continuing tort theory “expressed in Everhart” at 802 referred to personal injury caused by fiberglass in products sold by a defendant, where “continued exposure to the hazard is occasioned by the continued failure of the tortfeasor to warn the victim, and the statute of limitation does not commence to run [until] the continued tortious act producing injury is eliminated, e.g., by an appropriate warning in respect to the hazard.” (Emphasis supplied.) Moreover, Corp. of Mercer Univ. did not involve hidden contamination, but, like Everhart, involved damage arising out of sale oí products which defendant knew were hazardous and yet concealed this fact. The Court in Corp. of Mercer Univ. at 365 expressly held that in cases of asbestos products installation, the four-year statute of limitation for property damage requires suit to be brought “within four years of substantial completion” of installation of the asbestos product. This is not inconsistent with anything said in Hoffman.

(d) Branch contends he cannot be hauled into court for failure to remedy a continuing contamination, no matter how long ago he vacated the property, no matter what his knowledge of the alleged contamination, and no matter where he was in the chain of parties causing the contamination, and that to allow him to be sued is a revival of the “discovery rule” which does not exist in Georgia. In these conceptions he is mistaken. The claims against him are for causing a contamination which continued within four years of the filing of this suit. Since he caused the continuing contamination, no notice to abate is necessary to support an action against him. Southern R. Co. v. Puckett, 121 Ga. 322 (48 SE2d 968). Even if he was not on the property when the contamination “continued” within the four years before suit was filed, his liability for the continuing contamination arose nevertheless from the fact that he caused it. See Hudgins & Co. v. J & M Tank Lines, 215 Ga. App. 308 (450 SE2d 221). The cause of action against the person who caused a continuing nuisance is well established: every continuance of a nuisance which is not permanent, and which could and should be abated, is a fresh nuisance for which a new cause of action will lie; consequently, suit may be maintained for damages growing out of a continuing nuisance, where the damages were inflicted within four years before the filing of suit, though the act which originally caused the nuisance was not done within the period of limitation. Hoffman, supra at 730, quoting Goble v. Louisville &c. R. Co., supra at 249 (3). If the contamination were “completed” in 1987 when Branch allegedly left the premises, that is, if it had not continued to migrate, any cause of action would have died four years from the last completed act. But since the liability which Branch complains of as “surviving forever” is for contamination he caused which “spreads forever,” there are cogent policy reasons for calling him to account. Just as OCGA § 41-1-5 places potential responsibility for continuance of a nuisance on an “alienee” of property “no matter where he is in the chain” of parties who created the nuisance, there is no reason to exempt the original causer of the continuing contamination “no matter where he is in the chain” of parties who created or failed to abate it.

3. Appellant contends the trial court’s summary judgment on his claim for punitive damages was error because Branch’s failure to remedy the continuing contamination after notice entitles appellant to punitive damages. See, e.g., Hudgins & Co. v. J & M Tank Lines, supra, where the defendant not only continued the contamination but caused it and concealed it. We agree that insofar as plaintiff can prove the contamination initially laid down continues to migrate and is not a “completed act” and was not abated by Branch after notice, and if Branch’s conduct falls within OCGA § 51-12-5.1 (b), it was error to grant partial summary judgment on the issues of punitive damages. Hoffman, supra.

4. The legal duty to abate a nuisance caused by another is dictated by statute, and the failure to so abate is a tort described as “continuance of a nuisance.” Id. at 731-732; OCGA § 41-1-5. In this case Branch caused the continuing contamination. If he was not strictly laying down contamination after 1987, he is liable for damages from the continuing contamination because he originally caused it, as Plantation Pipeline did in Hoffman. The fact that Branch had vacated the premises in 1987 would not remove his legal duty to abate a continuing nuisance he caused and which continued within four years of the filing of this suit.

The grant of summary judgment to Branch was incorrect.

Judgment affirmed in part and reversed in part.

Ruffin and Eldridge, JJ, concur.

On Motion for Reconsideration.

Appellee Branch contends this decision, being issued after the end of the January 1997 term, violates the “two term rule.” Ga. Const., Art. VI, Sec. IX, Par. II provides: “The Supreme Court and the Court of Appeals shall dispose of every case at the term for which it is entered on the court’s docket for hearing or at the next term.” This case was docketed August 30, 1996 and was entered on the docket for hearing in January 1997. Our decision on May 7, 1997 was rendered before the end of the next term after the January term and did not violate the two-term rule. Branch argues that because we denied oral argument, the case was not “heard” in January and we should consider it “heard” when it was docketed. However, the case was placed on the docket “for hearing” in the January term, and the fact that it was not “heard” orally does not mean it was not “heard.”

Decided May 7, 1997

Reconsideration denied June 3, 1997

Before Judge Wyatt Cummings Moore.

Doffermyre, Shields, Canfield & Knowles, Robert E. Shields, Brown & Shamp, Robert H. Brown III, for appellant.

Bovis, Kyle & Burch, James E. Singer, Long, Weinberg, Ansley & Wheeler, David A. Sapp, Ogletree, Deakins, Nash, Smoak & Stewart, Jay M. Barber, Kelly J. Beard, Marion J. Starling III, for appellees.

Motion for reconsideration denied.