text:
    A91A1058.
    GOINS v. HOWELL.
    (410 SE2d 755)
   Carley, Judge.

Appellee-plaintiff brought this contract action seeking to recover attorney’s fees allegedly earned in his representation of appellant-defendant. Although appellant filed a timely answer, he failed to make a timely reply to certain requests for admission. Appellee moved for summary judgment, relying in part upon appellant’s failure to make a timely reply to the admissions. Appellant appeals from the order of the trial court granting appellee’s motion for summary judgment.

Pursuant to OCGA § 9-11-36, appellee had requested appellant to admit that a certain statement of account was “a true and correct statement of the monies owed to [appellee] by [appellant].” Appellant admitted this was a correct statement of his liability by his failure to answer or object to the request in writing within 30 days of service. OCGA § 9-11-36 (a) (2). Pursuant to OCGA § 9-11-36 (b), appellant sought to withdraw his admission. That statute provides: “[T]he court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admissions fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.” The trial court’s refusal to permit appellant to withdraw his admission is enumerated as error.

In support of his motion to withdraw the admission, appellant asserted that the failure to have made a timely answer was attributable to the oversight of counsel and further alleged, without evidentiary support, the existence of meritorious defenses. “[Appellant] as movant only perfunctorily [attempted to satisfy] the first prong of the two-prong test set forth in Cielock v. Munn, 244 Ga. 810 (262 SE2d 114) (1979) [.] [Appellant] failed to show [in his motion] that the admitted requests either could have been refuted on trial of the issues by admissible evidence having a modicum of credibility or that the admitted requests were incredible on their face; and [failed to aver] that the denials being tendered . . . had not been offered solely for purposes of delay.” Whitemarsh Contractors v. Wells, 249 Ga. 194, 195 (288 SE2d 198) (1982). As the movant seeking to withdraw the admissions, appellant “must show that ‘the presentation of the merits will be subserved’ by allowing the withdrawal and the mere filing of the motion does not satisfy this test.” Worth v. Alma Exchange Bank & Trust, 171 Ga. App. 748, 752 (2) (320 SE2d 816) (1984). “Because [appellant] failed to present any such evidence, the trial court properly denied [his] motion to withdraw the admissions. [Cit.]” Amason, Inc. v. Metromont Materials Corp., 185 Ga. App. 509, 510 (1) (364 SE2d 637) (1988).

Decided September 3, 1991

Reconsideration denied September 19, 1991.

William A. Wehunt, for appellant.

Randall L. Keen, for appellee.

“[A]ny evidence [subsequently presented which was] inconsistent with the binding effect of the admission could not be considered by the trial court on [appellee’s] motion for summary judgment.” Albitus v. Farmers & Merchants Bank, 159 Ga. App. 406, 408 (1) (283 SE2d 632) (1981). There being no genuine issue of material fact as to appellant’s liability to appellee for a sum certain, the trial court correctly granted appellee’s motion for summary judgment.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A91A1086.
    GREGG v. THE STATE.
    (411 SE2d 65)
   Birdsong, Presiding Judge.

Thomas Mark Gregg appeals his judgment of conviction of two counts of child molestation and his sentence.

Appellant has filed four enumerations of error relating to the alleged erroneous admissions of prior out-of-court statements of the child victim under the provisions of OCGA § 24-3-16. Held:

1. Appellant’s assertion that error occurred because the State introduced “extensive inadmissible prior consistent statements to bolster the inconsistent and recanting testimony of the alleged victim” is without merit. First, for reasons discussed in Division 3 below, the statements were admissible. Secondly, “where [as here] 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 statements] of the witness [are] admissible.” Edwards v. State, 255 Ga. 149, 151 (335 SE2d 869); accord Richardson v. State, 256 Ga. 746, 747 (5) (353 SE2d 342); Treadaway v. State, 191 Ga. App. 111 (2) (381 SE2d 43).

2. The trial court can modify a. ruling on a motion in limine at trial. Agnor, Ga. Evidence (2d ed.), Motion in Limine § 8-1.1, citing Frink v. State, 177 Ga. App. 604 (1) (340 SE2d 631).

3. Appellant asserts the trial court erred in denying the motion in limine to exclude testimony of hearsay witnesses offered under OCGA § 24-3-16, because no evidence of “indicia of reliability” was tendered at the hearing on the motion. During a hearing as to the victim’s competency, the trial court indicated it would attempt to make a “specific finding” as to the issue of “indicia of reliability.” At the conclusion of the hearing, the trial court found “sufficient indicia of reliability.”

(a) Pretermitting whether this finding was supported at the conclusion of the so-called competency hearing by evidence of record is the question of whether the trial court, in ultimately admitting victim statements at trial, under OCGA § 24-3-16, is limited solely to evidence of “indicia of reliability” offered at the pretrial hearing, or whether it also may consider evidence subsequently introduced at trial and bearing on the “indicia of reliability” at the time the statement was made.

We find that if, after both sides have rested at trial, competent evidence of record exists which will support a finding of “indicia of reliability,” then error, if any, resulting from a previous denial of the motion in limine is rendered harmless. In this regard, examination of OCGA § 24-3-16 reveals that while the court must find that “the circumstances of the statement provide sufficient indicia of reliability,” such finding is not a condition precedent to the admissibility of the statement; rather, this statutory requirement is met if after both parties have rested, the record contains evidence which would support such a finding. In fact, our courts have consistently held “OCGA § 24-3-16 does not require a hearing to determine ‘indicia of reliability’ be held prior to receiving the testimony,” Reynolds v. State, 257 Ga. 725, 726 (2) (363 SE2d 249) (where appellant had contended “the trial court erred by allowing the [witnesses] to testify to statements made by [child] without first making a determination that the statements possessed ‘sufficient indicia of reliability.’ ”). Likewise, we held, when a finding of child competency was required by the laws of this state, “[t]here is no requirement that the trial court must determine competency of a child witness during an investigative interview before the substance of that interview can be admitted into evidence.” Newberry v. State, 184 Ga. App. 356, 358 (4) (361 SE2d 499). The trial court has broad discretion in the admission of evidence (see Gully v. Glover, 190 Ga. App. 238 (4) (378 SE2d 411)), and may duly admit evidence subject to an adequate foundation for admissibility being subsequently established by the proponent. “The object of all legal investigation is the discovery of truth,” (OCGA § 24-1-2) and as long as sufficient evidence of indicia of reliability appears in the record either before or after the introduction of the child’s out-of-court statements, the fair trial rights of the defendant are adequately protected. Thus, if the record contains sufficient evidence of “indicia of reliability,” we would not reverse the correct ruling of the trial court regardless of the reason given for or the timing of its ruling. See Tony v. Pollard, 248 Ga. 86 (1) (281 SE2d 557). And in this regard, an appellate court can consider evidence offered not only at a pretrial hearing, but that offered by either the State or the defendant during the course of the trial. Cf. Gadson v. State, 197 Ga. App. 315, 316 (1) (398 SE2d 409) (voluntariness of confession may look at evidence contained in entire record); Whatley v. State, 196 Ga. App. 73, 75 (1) (395 SE2d 582) (may consider evidence in pretrial, trial and posttrial proceedings in determining propriety of disclosing informant’s identity); Jones v. State, 187 Ga. App. 421, 422-423 (370 SE2d 784) (may consider evidence in suppression hearing and at trial in determining legality of search).

(b) Indicia of reliability must spring from the circumstances of the statement. Godfrey v. State, 258 Ga. 28, 29 (365 SE2d 93); see Knopp v. State, 190 Ga. App. 266 (2) (378 SE2d 703). The factors which the court may consider, when applicable, include but are not limited to the following: (1) the atmosphere and circumstances under which the statement was made (including the time, the place, and the people present thereat); (2) the spontaneity of the child’s statement to the persons present; (3) the child’s age; (4) the child’s general demeanor; (5) the child’s condition (physical or emotional); (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child’s statement, and the type of coaching and circumstances surrounding the same; and, the nature of the child’s statement and type of language used therein; and (10) the consistency between repeated out-of-court statements by the child. Compare Hunter v. State, 194 Ga. App. 711, 712 (391 SE2d 695); Ortiz v. State, 188 Ga. App. 532, 535 (3) (374 SE2d 92); and Newberry v. State, supra; see also State v. Sorenson, 421 NW2d 77 (S.C. Wisc.). These factors are to be applied neither in mechanical nor mathematical fashion, but in that manner best calculated to facilitate determination of the existence or absence of the requisite degree of trustworthiness. Nor does the fact that the statement is made days, weeks, or even “several months after the alleged incident,” in and of itself make the statement unreliable. Newberry, supra at 358 (2).

Decided September 5, 1991

Reconsideration denied September 19, 1991

Rubin Law Offices, Floyd E. Doolittle, Robert P. Hoyt, for appellant.

W. Fletcher Sams, District Attorney, William T. McBroom III, Assistant District Attorney, for appellee.

Examination of the transcript of the hearing and trial establishes a sufficient showing of indicia of reliability, within the meaning of OCGA § 24-3-16, as to all out-of-court statements made by the victim, which were testified to by witnesses in the presence of the jury.

(c) The record also shows the child was present at trial, testified as a court witness, and was subject to examination and cross-examination by appellant and the State. Thus, appellant had every conceivable opportunity to examine and cross-examine the child in the presence of the jury, regarding the child’s memory of and the circumstances surrounding his making of each of the out-of-court statements in question, and had the opportunity to allow the jury to judge the child’s demeanor in response to any examination or cross-examination about the alleged making and veracity of these previous statements. This procedure provided an additional safeguard to appellant’s right of fair trial, and provided appellant full opportunity for confrontation.

The enumerations of error and assertions of appellant in support thereof are without merit.

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A1144.
    BRANNEN v. GULF LIFE INSURANCE COMPANY.
    (410 SE2d 763)
   Birdsong, Presiding Judge.

Dannis D. Brannen appeals the order of the trial court granting appellee Gulf Life Insurance Company’s (Gulf) motion for summary judgment and, in effect, denying partial summary judgment to appellant.

Appellant applied for a $30,000 life insurance policy to be paid up at age 95. The policy was issued on December 1, 1970, with an age at issue date of 26. Appellant subsequently applied for a duplicate policy asserting the original policy had been lost or destroyed. During the first week of June 1984, appellee issued a so-called duplicate policy for $30,000 life insurance to be paid up at age 95 to appellant with a policy issue date of December 1, 1970, and an age at issue date of 26. Appellant paid the same premium both prior to and after issuance of the duplicate policy. On September 6, 1989, appellant surrendered the duplicate policy to appellee exercising the cash surrender value option of the insurance contract. At this time, it was discovered that the so-called duplicate policy contained a table of guaranteed values based on an ordinary life policy rather than a policy with premiums paid up at age 95. Thereafter, appellees refused to pay the cash surrender value of $7,381.50, which apparently is the applicable cash surrender amount based on a table of guaranteed values calculated for an ordinary life policy and tendered to appellant $5,969.70, which apparently is the applicable cash amount based on a table of guaranteed values (as found in the original policy) calculated for a policy with premiums paid up at age 95. Held:

1. In Georgia, life insurance contracts, such as in this case, must be in writing. Georgia Cas. &c. Co. v. Hardrick, 211 Ga. 709, 712 (3) (88 SE2d 394); see Thomas v. Union Fidelity Life Ins. Co., 168 Ga. App. 267, 268 (1) (308 SE2d 609), aff’d 252 Ga. 259 (312 SE2d 333); OCGA §§ 33-24-1 (1); 33-24-16; 33-24-18 (a); 33-25-1; 33-25-3; 33-25-3.1.

2. Examination of the so-called duplicate policy reveals that it is ambiguous on its face regarding whether it was to constitute a “new” policy. Although the policy is stamped as a “DUPLICATE,” it contains a typewritten provision which provides: “This policy has been issued as a result of the loss or destruction of the original contract. Effective as of this date, this policy shall take the place of the original and the previously issued policy shall be void.” (Emphasis supplied.) Between the “DUPLICATE” stamp and the detailed typewritten language, the latter is entitled to the most consideration. See OCGA § 13-2-2 (7). Insurance contract provisions are to be construed against the insurer which drafted them (Southern Guaranty Ins. Co. v. Goddard, 259 Ga. 257, 259 (379 SE2d 778)), and “ ‘ “ ‘[w]here a provision in a policy is susceptible to two or more constructions, the courts will adopt that construction which is most favorable to the insured.’ ” ’ ” Atlantic Wood Indus. v. Lumbermen’s &c., 196 Ga. App. 503, 505 (2) (396 SE2d 541). Applying these rules of construction, we find the so-called duplicate policy was a “new” policy. The original insurance policy clearly and unequivocally was rendered “void” by the express provisions of the second policy. As the life insurance contract was required to be in writing (Division 1 above), by rendering the original policy void in its totality, the original contract of insurance likewise was rendered void.

Further, the new policy was grounded upon valuable consideration. The new policy granted the insured the benefit of the original issue date and the original age of insured at date of issue; thus, the insured was granted the benefit of having a new policy that carried the rights and benefits of a policy issued on December 1, 1970, for an insured of only age 26 and for an unchanged premium. In return the insured, by accepting the terms of the policy as evidenced in the record by his subsequent payment of the premiums, agreed, as proposed by the insurer, to the voiding of the original policy, that is the original life insurance agreement. An additional legal effect of the insured’s acceptance of the new policy is that he has made, as clearly bargained for by the insurer, a present implied promise to the forbearance of any future claims or benefits arising from the original policy. OCGA §§ 13-3-41; 13-3-42.

Thus, to the extent the trial court held that the so-called duplicate policy was not a “new” contract or that there was “no consideration flowing” which would authorize the finding that a new policy had been entered into by the parties, it is in error.

3. There remains to be considered whether the parties intended the terms of the new policy would include any provision materially different from those contained in the original policy. As to this issue we find no ambiguity of contract. Examining the “new” insurance contract on its face, we find it to be clear and unmistakable the parties intended, as concluded by the trial court, that the “new” contract would contain the same contract provisions as the original contract “with the same rights and obligations applicable to both parties.” Such an intent violates no rule of law in this state. Therefore, enforcing this intent as we are required to do under the provisions of OCGA § 13-2-3, we find that both parties also intended to include the same table of guaranteed values found in the original policy within the terms of the “new” policy.

“A mistake, either of law or fact, is cognizable in equity and affords a remedy therein by reformation of the instrument so as to make it express the true intention of the parties, on a proper cause being made; but such a jurisdiction will always be cautiously exercised, and to justify it the evidence must be clear, unequivocal, and decisive. [Cits.] ‘Mistake relievable in equity is some unintentional act, or omission, or error, arising from ignorance, surprise, imposition, or misplaced confidence.’. . . For a mistake to be relievable in equity by reformation, it must be mutual, or else mistake on the part of one to the contract and fraud on the part of the other. [Cits.]” Yablon v. Metropolitan Life Ins. Co., 200 Ga. 693, 704 (2) (38 SE2d 534). Due to an initial negligence mistake of the insurer, a different table of guaranteed values than that intended by both parties was incorporated into the “new” policy. And thereafter laboring under the same misconception, insurer and insured both harbored the same mistake that the same table of guaranteed values had been incorporated into the “new” insurance policy. As the mistake was one common to both parties, that is both parties were laboring under the same misconception (see DeLong v. Cobb, 215 Ga. 500, 503 (111 SE2d 89), overruled on other grounds, Long v. Walls, 226 Ga. 737, 742 (177 SE2d 373); Weil Bros. Cotton v. T. E. A., 181 Ga. App. 122, 127 (1) (351 SE2d 670); B. L. Ivey Constr. Co. v. Pilot Fire &c. Co., 295 FSupp. 840, 844 (3, 4) (N.D. Ga.)) and as this common mistake existed at the time of the execution of the “new” contract of insurance (DeLong v. Cobb, supra at 503), it was mutual rather than unilateral.

Decided September 5, 1991

Reconsideration denied September 19, 1991

Joseph D. McGovern, for appellant.

Newton, Smith, Durden & Kaufold, Wilson R. Smith, for appellee.

4. As a general rule, “[i]f a party, by reasonable diligence, could have had knowledge of the truth, equity should not grant relief. . . .” OCGA § 23-2-29. However, this provision has a statutory exception promulgated in OCGA § 23-2-32 (b). Gulf Life Ins. Co. v. Folsom, 256 Ga. 400, 403 (349 SE2d 368). OCGA § 23-2-32 (b) provides “[r]elief may be granted even in cases of negligence by the complainant if it appears that the other party has not been prejudiced thereby.” Long v. Walls, supra. In this case, we find appellant rather than being prejudiced by the negligence of appellee stands, in fact, to obtain a windfall not bargained for absent the equitable remedy of reformation.

Yablon, supra, and Davis v. United American Life Ins. Co., 215 Ga. 521 (111 SE2d 488) are factually distinguishable.

Accordingly, we find the trial court did not err in denying appellant’s motion for partial summary judgment. Moreover, pursuant to OCGA §§ 23-2-30 and 23-2-32 (b), the trial court was authorized to grant reformation of contract; and, having granted reformation, the trial court did not err in granting appellee’s motion for summary judgment and, upon reformation, dismissing appellant’s complaint with prejudice. We will not reverse the correct rulings of a trial court regardless of the reasons given therefore. National Consultants v. Burt, 186 Ga. App. 27, 33 (2) (366 SE2d 344). Appellant’s other assertions are without merit.

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A1161.
    CHAMBERS v. THE STATE.
    (410 SE2d 771)
   Birdsong, Presiding Judge.

Donovan Chambers appeals his judgment of conviction of one count, respectively, of armed robbery, possession of a firearm during commission of a felony, driving without a license, and possession of a firearm by a convicted felon, and the sentence.

Appellant filed a motion to suppress, a hearing was conducted, and on August 22, 1989, the trial court granted the suppression motion. The State appealed, and we reversed the trial court’s order. State v. Chambers, 194 Ga. App. 609 (391 SE2d 657). Allegedly over objection of counsel, on March 5, 1990, the trial court called this case for trial, and the trial began that day. The jury returned its verdict on March 7, 1990, and sentencing proceedings were held on March 20, 1990. This court issued its remittitur on March 20, 1990, although its opinion in State v. Chambers, supra, had issued earlier on February 9, 1990, and motion for rehearing had been denied on February 22, 1990. The remittitur was received and filed in the office of the clerk of the superior court on March 22, 1990. Held:

1. Appellant, citing Nave v. State, 171 Ga. App. 165 (3) (318 SE2d 753) and Talley v. City Tank Corp., 158 Ga. App. 130 (1) (279 SE2d 264), asserts that at the time of trial, “the trial court did not have jurisdiction of this matter” as the remittitur of this court had not been filed with the clerk of the lower court until after the trial was completed. See generally, OCGA § 5-6-10.

We agree that at the time this trial was held, the superior court technically lacked the requisite jurisdiction. Hubbard v. McCrea, 103 Ga. 680 (1) (30 SE 628). Any proceeding so conducted “is coram non judice,” and the resulting want of jurisdiction cannot be waived by conduct of counsel so as to give effect to the void judgment (Lyon v. Lyon, 103 Ga. 747, 751 (2) (30 SE 575)). However, upon subsequent filing of the remittitur in the office of the clerk of the superior court, the court would reacquire jurisdiction of the case. Marsh v. Way, 255 Ga. 284 (1) (336 SE2d 795); Hagan v. Robert & Co. Assoc., 222 Ga. 469 (150 SE2d 663). “The filing of a remittitur ... in the office of the clerk of a trial court immediately reinvests it with jurisdiction for all purposes over the case to which such remittitur relates, though good practice requires that the trial court cause the remittitur to be entered upon its minutes.” (Emphasis supplied.) Knox v. State, 113 Ga. 929 (39 SE 330). “If, where a new trial has been granted . . . the remittitur is not so entered before the new trial is had, it is proper to pass a nunc pro tunc order directing that the remittitur be entered as of the date when that trial began.” (Emphasis supplied.) Knox, supra at 929, hn. (a). We find the precedent of Knox dispositive of the issue before us. Moreover, the trial court’s issuance of a nunc pro tunc order “as necessary in aid of its jurisdiction” is a proper exercise of constitutionally granted judicial power. Ga. Const, of 1983, Art. VI, Sec. I, Par. IV. Accordingly, we will remand this case for issuance by the trial court of the necessary nunc pro tunc order in accordance with the procedure outlined in Knox.

2. Appellant asserts the trial court erred by granting the State’s motion to present evidence of similar transactions and by allowing evidence of appellant’s prior conviction for three counts of armed robbery to be introduced at trial. Pretermitting the question of whether appellant’s prior felony conviction could be admitted as evidence of a similar crime (see generally Brown v. State, 197 Ga. App. 155 (398 SE2d 34)) is the issue whether any other legitimate basis existed for the introduction of the prior conviction evidence at trial. If evidence qualifies for admission under any legitimate evidentiary theory, it should be admitted even if it would not so qualify under some other evidentiary rule. Boatright v. State, 192 Ga. App. 112, 116 (6) (385 SE2d 298).

Appellant had been indicted on several counts, including that of possession of a firearm by a convicted felon in that he had been convicted in 1987 of the felony of armed robbery in the State of Florida. “Evidence of prior felony convictions may be admitted in those cases where [as here] the prior felony convictions are alleged in the indictment, as provided by law.” OCGA § 24-9-20 (b); Proctor v. State, 184 Ga. App. 602 (1) (362 SE2d 108). “[Appellant’s] previous felony conviction was one of the elements of the offense defined by Code Ann. § 26-2914 [OCGA § 16-11-131] which the State was required to prove beyond a reasonable doubt in order to substantiate the jury’s verdict finding him guilty of possession of a firearm by a convicted felon.” Prather v. State, 247 Ga. 789, 790 (2) (279 SE2d 697). Thus, appellant’s character was not impermissibly placed in issue when the court admitted evidence of the previous armed robbery conviction. State v. Santerfeit, 163 Ga. App. 627 (295 SE2d 756). Neither did the trial court “err by admitting into evidence [a] certified cop[y] of felony conviction [] of appellant. The state was not required to show the validity of the prior felon [y], as [it was] introduced to prove a necessary element of the crime of possession of a firearm by a convicted felon.” Best v. State, 261 Ga. 30, 31 (4) (401 SE2d 732). This enumeration is without merit.

3. Appellant asserts the trial court erred by allowing into evidence certain items seized as the result of an illegal search and seizure contrary to the trial court’s order suppressing such evidence and prior to the time the trial court had official notice from this court that such evidence was to be admissible. Appellant in his brief specifically argues that the trial court allowed the very evidence to be admitted which it had earlier suppressed at a time when the court had no jurisdiction to take such action, and thus did so contrary to its own order. The evidence was admissible and the trial court originally erred in granting appellant’s motion to suppress. State v. Chambers, supra. Even granting that the trial court lacked technical authority to admit evidence during the trial of this case because this court’s remittitur had not been duly filed in the lower court, this matter can be cured and this issue rendered moot upon the filing of the nunc pro tunc order discussed in Division 1 above.

Decided September 6, 1991

Reconsideration denied September 19, 1991

J. Kelly Brooks, John B. Adams, for appellant.

Harry D. Dixon, Jr., District Attorney, Deborah M. Perlis, Lucy Bell, Assistant District Attorneys, for appellee.

Judgment vacated and remanded with direction.

Pope and Cooper, JJ., concur.


text:
    A91A1404.
    MERRILL v. THE STATE.
    (411 SE2d 283)
   Birdsong, Presiding Judge.

This is a prosecution of Marc Merrill for driving under the influence. In a previous decision, Merrill v. State, 192 Ga. App. 890 (386 SE2d 684), we held that appellant’s “Omnibus Motion,” which in paragraph 25 requested a trial within two terms or an acquittal and discharge, “obfuscated the nature of the pleading” (id. at 891), and was in any case premature as it was filed before the accusation was filed. Following the Supreme Court’s denial of certiorari and our remittitur on November 27, 1989, appellant Merrill, on May 21, 1990, filed a second motion for acquittal and discharge pursuant to OCGA § 17-7-170 for failure to provide speedy trial, contending the State was given fresh notice of his speedy trial demand by our decision in his first appeal. The trial court denied this motion for acquittal and discharge. Merrill appeals. Held:

Appellant contends that our decision affirming the denial of his first motion for acquittal and discharge cleared up the obfuscatory nature of his “Omnibus Motion” and put the State on notice of a demand for speedy trial; and moreover, that our ruling, which naturally occurred after the accusation was filed against appellant, rendered appellant’s “demand” timely. He thus asserts that when we affirm the denial of an acquittal and discharge because a defendant made an untimely and insufficient demand for speedy trial, a new demand for speedy trial is perfected by our decision and is automatically lodged in the trial court on the filing of the remittitur from this court.

Decided September 3, 1991

Reconsideration denied September 19, 1991

Robert S. Devins, for appellant.

Ralph T. Bowden, Jr., Solicitor, Andrew T. Rogers, J. Cliff Howard, Assistant Solicitors, for appellee.

The dismissal of a criminal case pursuant to OCGA § 17-7-170 is an extreme sanction which can be invoked only if there has been strict compliance with this statute. Head v. State, 189 Ga. App. 111 (375 SE2d 46). This court has held previously that the defendant’s “demand” in this omnibus motion was insufficient to invoke the extreme sanction of dismissal and acquittal (Merrill, supra) and the fact that we so held does not operate to perfect that insufficient demand or render it “sufficient” so as to serve as the basis for a second motion for dismissal or acquittal.

Judgment affirmed.

Pope and Cooper, JJ., concur.


author: Cooper, Judge.

text:
    A91A0828.
    MOORE et al. v. HARRIS et al.
    (410 SE2d 804)
   Cooper, Judge.

This action is an appeal of the trial court’s award of attorney fees and expenses of litigation to appellees pursuant to OCGA § 9-15-14.

On May 19, 1986, appellants sued appellees, two lawyers and their law firm, for legal malpractice, asserting that appellees were negligent in rendering improper tax advice in connection with the purchase and sale of a business. Appellees did not represent appellants but represented the other party to the transaction. Appellants’ suit was voluntarily dismissed without prejudice on May 19, 1986, and a second suit against appellees was filed on November 4, 1987. Summary judgment was granted to appellees in the second suit, and this court affirmed the judgment. Moore v. Harris, 188 Ga. App. 251 (372 SE2d 654) (1988). Subsequently, appellees filed an action against appellants to recover attorney fees and expenses of litigation pursuant to OCGA § 9-15-14 (a). After a hearing before the trial court, a judgment was entered for appellees in the amount of $20,766.90. This amount included certain fees and expenses incurred in the defense of the first suit as well as all the fees and expenses from the second suit. The award also included an amount representing the professional time expended by the appellees in the defense of the lawsuits. The appellees, although attorneys themselves, did engage separate lawyers to represent them and also relied on the attorneys for their malpractice insurer to handle many aspects of the case. The fees of these other attorneys were also included in the award.

1. We will first consider appellants’ contention that the trial court erred in ruling that OCGA § 9-15-14 was applicable to appellants’ conduct in the malpractice suits. Appellees based their motion for attorney fees on OCGA § 9-15-14 (a) which mandates an award to “any party against whom another party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position.” “The standard of review for this section is the ‘any evidence’ rule.” Haggard v. Bd. of Regents &c. of Ga., 257 Ga. 524, 527 (4c) (360 SE2d 566) (1987). A review of the entire record in this case convinces us that David Harris (“Harris”), the appellee attorney involved in the purchase and sale transaction, clearly told appellants that he was representing only the other party to the transaction and was not representing appellants. Furthermore, the record also establishes that Harris had no reason to suspect that appellants would be relying upon him for tax advice or that his actions would facilitate appellants’ decision not to seek independent legal advice. In fact, Harris questioned appellants about their representation to which they responded that they had a lawyer in Iowa. Additionally, the documentation signed by appellants contained clear and unambiguous language acknowledging that Harris was not acting as appellants’ tax advisor and that appellants had not relied on any such advice from him. All these facts surrounding the interchange between appellants and appellees were contained in the discovery conducted in connection with the first suit which was in the possession of appellants at the time the second suit was filed.

“ [Notwithstanding the ‘any evidence’ standard of review. . ., when considering an appeal from an award of attorney fees made under OCGA § 9-15-14 (a), we must determine whether the claim asserted below either had some factual merit or presented a justiciable issue of law.” Rolleston v. Huie, 198 Ga. App. 49, 53 (400 SE2d 349) (1990) (Sognier, J., concurring specially). Despite appellants’ reliance on the voluntary agency theory of liability, we conclude that there was no factual or legal basis on which to bring the legal malpractice suit. The facts known to appellants prior to bringing the second lawsuit showed that there was neither an attorney-client relationship nor a voluntary agency at work. “[W]hile we have no reason to doubt that [appellants’ counsel’s] pursuance of the [malpractice] action [was] characterized by good faith in a subjective sense, we are left at the end with nothing which could be said to establish as a matter of law a reasonable or substantial justification for [appellants’] claims.” Ferguson v. City of Doraville, 186 Ga. App. 430, 437 (2) (c) (367 SE2d 551) (1988), overruled on other grounds, Vogtle v. Coleman, 259 Ga. 115, 119, n. 8 (376 SE2d 861) (1989). “Because there was no basis for the action against [appellees], and because the appellants] could have made this determination with a minimum amount of diligence,” we affirm the trial court’s decision that OCGA § 9-15-14 (a) warranted an attorney fee award. Stancil v. Gwinnett County, 259 Ga. 507, 509 (1) (384 SE2d 666) (1989). Appellants’ enumeration is without merit.

2. Appellants assert that the trial court erred in including in the award attorney fees and expenses relating to the first suit which was filed prior to the effective date of OCGA § 9-15-14. “The Act which promulgated OCGA § 19-15-14 . . . provided that the section would apply ‘to actions filed or presented for filing on or after July 1, 1986.’ [Cit.] In addition, it was also applicable to ‘any action pending on July 1, 1986, with respect to any claim, defense, or other position which is first raised in the action on or after July 1, 1986.’ [Cit.]” Wilson v. Cotton States &c. Ins. Co., 183 Ga. App. 353, 356 (358 SE2d 874) (1987). Although the first suit was filed before July 1,1986, when the second suit was filed all the parties stipulated that the depositions and written discovery materials from the first suit could be used in the second suit “as if such discovery was made in the [second suit].” Since the existing discovery was fully utilized in the second suit per the stipulation, the fees and expenses from the first suit relating to that discovery only were properly included in the award. Appellees submitted documentation verifying the portion of the fees in the first suit which were attributable to the discovery that was used in the second suit. We affirm that part of the award which includes these fees.

3. Appellants also raise as error the inclusion in the award of the appellee attorneys’ professional time spent in the defense of the case. The attorneys were not counsel of record but instead they employed independent counsel to represent them and in addition utilized their malpractice insurer’s attorneys. The attorneys argue that, because they are attorneys, their participation in their defense went beyond the roles of defendants because they assisted their defense in a legal capacity. Thus, they argue that they should be compensated for the hours of legal expertise they contributed. Appellants contend that appellees are in effect attempting to recover for their lost professional time — time that they could have used to bill other clients — and therefore appellees are seeking an award of lost income. Although appellees are attorneys, they are in fact the defendants in this case. They did not appear as counsel of record but engaged independent attorneys to represent them. The documentation submitted to support their claim included, for example, the time spent by one of the appellees in giving his own deposition. This was time spent as a defendant, not as an attorney. After reviewing the record, we conclude that the personal time spent by the attorneys in their own defense is not a compensable component in an award of attorney fees. Consequently, we reverse this portion of the award and remand to the trial court to fashion a revised award in accordance with this opinion.

Decided September 19, 1991.

Christopher G. Knighton, Scheer & Eisner, Robert A. Eisner, for appellants.

David 0. Harris, pro se.

Judgment affirmed in part;

reversed and remanded in part. Birdsong, P. J., and Pope, J., concur.


author: Carley, Presiding Judge.

text:
    A91A0856.
    GARRETT v. STANDARD GUARANTY INSURANCE COMPANY.
    (410 SE2d 806)
   Carley, Presiding Judge.

Appellant-plaintiff initiated this action against John Doe and caused appellee-defendant to be served in its capacity as her uninsured motorist carrier. Appellee not only answered on behalf of John Doe, it also became a party to the action. See generally Moss v. Cincinnati Ins. Co., 154 Ga. App. 165 (268 SE2d 676) (1980). The case was tried before a jury and, at the close of the evidence, appellee moved not only for a directed verdict as to John Doe’s tort liability, but also for a directed verdict as to its own contractual liability. The trial court denied the motion as to John Doe, but granted the motion as to appellee. The trial court directed the jury to return a verdict in appellee’s favor and appellant appeáls from the judgment that was entered on this verdict.

Although appellant might not have to produce corroborative evidence so as to recover in tort against John Doe, she would have to produce corroborative evidence so as to recover in contract against appellee. OCGA § 33-7-11 (b) (2) provides, in relevant part, that physical contact between the vehicle of John Doe and the vehicle of the insured “shall not be required if the description by the [insured] of how the occurrence occurred is corroborated by an eyewitness to the occurrence other than the claimant.” “This can be read only as requiring that [the insured’s] description be corroborated in its material allegation, i.e., implication of the unidentified vehicle [as a causal factor in the underlying occurrence]. ...” (Emphasis in original.) Hoffman v. Doe, 191 Ga. App. 319, 321 (381 SE2d 546) (1989). In determining whether this corroboration requirement was met in the instant case, the evidence, and all reasonable deductions therefrom, must be construed most favorably for appellant. OCGA § 9-11-50 (a).

The driver of a vehicle which had collided with the rear of appellant’s vehicle testified as follows: “[A] car pull[ed] in front of [appellant] which caused her to hit on brakes . . . and that made me hit her.” This eyewitness testimony would certainly implicate the unidentified vehicle as a causal factor in the underlying occurrence upon which appellant predicated her tort claim against John Doe. It is not required that an eyewitness corroborate each and every detail of the insured’s description. All that is required is an eyewitness’ corroboration of the insured’s contention “that the accident was caused by an unknown vehicle.” Hoffman v. Doe, supra at 321. The eyewitness in the instant case may have failed to corroborate appellant in some respects and may have actually contradicted appellant in other respects. Those failures and contradictions would be relevant to the jury’s resolution of the issue of credibility. However, so long as appellant produced an eyewitness who testified not only to the existence of an unknown car, but who also implicated the unknown car as a causal factor in the underlying occurrence, the evidentiary requirements of OCGA § 33-7-11 (b) (2) were met and the trial court erred in granting appellee’s motion for a directed verdict. “While the evidence here may be subject to credibility concerns, it is nonetheless sufficient.” Universal Security Ins. Co. v. Lowery, 257 Ga. 363 (359 SE2d 898) (1987).

Appellee urges on appeal that appellant’s own testimony was self-contradictory, vague and equivocal and that, under the most unfavorable version of her testimony, John Doe’s vehicle did not play a part in the occurrence. However, the sufficiency of appellant’s own testimony is obviously an entirely different issue than that of the sufficiency of the corroborative evidence. Appellee’s motion for a directed verdict was predicated entirely upon the lack of corroborative evidence and in no way upon the insufficiency of appellant’s testimony. “ ‘A ground not mentioned in a motion for directed verdict cannot thereafter be raised on appeal. [Cits.]’ [Cits.]” Grabowski v. Radiology Assoc., P.A., 181 Ga. App. 298, 299 (2) (352 SE2d 185) (1986). Moreover, the trial court obviously found appellant’s testimony to be sufficient, as it denied appellee’s motion for a directed verdict as to John Doe’s tort liability.

Construing the testimony of the eyewitness most favorably for appellant, appellant met her evidentiary burden and satisfied the corroborative evidence requirement of OCGA § 33-7-11 (b) (2).

Decided September 19, 1991.

Beauchamp & Associates, Robert M. Beauchamp, for appellant.

Perry, Walters & Lippitt, Jesse W. Walters, for appellee.

Judgment reversed.

Sognier, C. J., and Beasley, J., concur.


author: Pope, Judge.

text:
    A91A0912.
    MANUFACTURERS NATIONAL BANK OF DETROIT v. TRI-STATE GLASS, INC.
    (410 SE2d 808)
   Pope, Judge.

Plaintiff Manufacturers National Bank of Detroit, in its capacity as assignee of FGP Industries, Inc., filed a complaint on account against defendant Tri-State Glass, Inc. Defendant answered and filed a motion to dismiss on the ground that plaintiff’s assignor is a foreign corporation not authorized to transact business in this state which, pursuant to OCGA § 14-2-1502, may not maintain an action in any court of this state. The trial court conducted a hearing and dismissed the action and plaintiff appeals.

1. If the evidence shows a foreign corporation conducts business in the state but has not obtained a certificate authorizing it to do so, then a complaint brought by that corporation is subject to dismissal. A. B. R. Metals &c. v. Roach-Russell, Inc., 135 Ga. App. 193 (217 SE2d 447) (1975). The same rule applies to the assignee of a foreign corporation not authorized to conduct business in the state. See Healey v. Morgan, 135 Ga. App. 915 (219 SE2d 628) (1975). In support of its motion defendant in this case submitted an affidavit of the Secretary of State attesting that the plaintiff’s assignor had not obtained a certificate of authority to transact business in this state. This affidavit does not, however, establish the assignor engaged in any activity in this state. Thus, the prehearing record contained no evidence that the assignor engaged in any activity in the state other than the account which was the subject of the complaint. Activity related to a single transaction or contract is not sufficient to establish that a foreign corporation is transacting business in the state so as to require a certificate of authority. See Reisman v. Martori, Meyer, Hendricks & Victor, 155 Ga. App. 551 (1) (271 SE2d 685) (1980); see also OCGA § 14-2-1501 (b). Plaintiff thus argues the evidence in the case is insufficient to sustain the motion to dismiss.

A motion to dismiss an action on the ground the plaintiff is a foreign corporation which is not authorized to maintain an action in this state is a dilatory plea, or a motion in abatement. See National Heritage Corp. v. Mount Olive Memorial Gardens, 244 Ga. 240 (260 SE2d 1) (1979); Safwat v. United States Leasing Corp., 154 Ga. App. 341 (1) (268 SE2d 395) (1980). Motions in abatement are heard under the provisions of OCGA § 9-11-43 (b) “which contemplates consideration of evidence not appearing on the face of the record.” Dawson v. McCart, 169 Ga. App. 434, 435 (2) (313 SE2d 135) (1984). See also Ogden Equip. Co. v. Talmadge Farms, Inc., 232 Ga. 614 (208 SE2d 459) (1974). The defendant bringing a motion in abatement has the burden of proving the facts necessary to support a judgment of dismissal. See Lukas v. Pittman Hwy. Contracting Co., 134 Ga. App. 305 (1b) (214 SE2d 398) (1975); G. E. C. Corp. v. Southern Fabricators, 122 Ga. App. 452 (2) (177 SE2d 497) (1970). The order dismissing the complaint states it is based on evidence presented by the defendant at the hearing. Plaintiff’s notice of appeal, however, expressly directed the clerk of the trial court to exclude from the record any transcript and the record contains no transcript of the hearing. In the absence of a transcript of evidence, we must assume that the trial court’s order is supported by sufficient evidence. Brown v. Thomas, 191 Ga. App. 679 (1) (382 SE2d 656) (1989). Accordingly, we must assume sufficient evidence was presented at the hearing on defendant’s motion to support the trial court’s dismissal of the complaint.

Decided September 19, 1991.

Lamb & Associates, R. Craig Henderson, Dennis E. Henry, for appellant.

Barry R. Chapman, for appellee.

2. The trial court did not err in reciting in its order of dismissal that no evidence was presented in opposition to defendant’s motion. The copy of a letter attached to plaintiff’s brief in opposition to defendant’s motion to dismiss was not sworn testimony, did not identify the author or attest that the information contained therein was within the author’s personal knowledge and failed to set forth facts that would be admissible in evidence. Thus, the letter stating that “our client was simply involved in interstate commerce” was not competent evidence to establish that plaintiff did not transact business in the state.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A0932.
    NEXUS SERVICES, INC. v. MANNING TRONICS, INC. et al.
    (410 SE2d 810)
   Carley, Presiding Judge.

The business relationship between appellant-plaintiff and appellee-defendants ultimately resulted in the filing of the instant multicount lawsuit. Appellant appeals from the trial court’s grant of summary judgment in favor of appellees as to two of the counts.

1. One count of appellant’s complaint alleged that appellee-corporate president had tortiously interfered with contractual relations in that he “refused to cooperate with [appellant], refused to provide necessary technical support, and otherwise caused [appellee-corporation] to breach its contracts with [appellant].”

“Tortious interference with contractual relations is applicable only when the interference is done by one who is a stranger to the contract. [Cits.] All of the [omissions] of [appellee-corporate president] complained of by [appellant] were [of acts which could be required of him only in his capacity] as agent for a contracting party [, i.e., appellee-corporation,] and . . . within the scope of [his] duties as agent. [Cits.] Summary judgment on [this] count was not error. . . .” Jet Air, Inc. v. Nat. Union Fire Ins. Co., 189 Ga. App. 399, 403-404 (4) (375 SE2d 873) (1988). See also Miller, Stevenson & Steinichen, Inc. v. Mallett, 196 Ga. App. 129, 130 (395 SE2d 381) (1990).

2. The other count of appellant’s complaint had alleged that certain “statements of [appellees] constitute fraud in [the] inducement, for which fraud [appellant is] due actual and punitive damages, plus costs and attorney[’s] fees.”

In support of their motion as to this count, appellees introduced evidence that the parties had entered into a written contract on March 4, 1987 and that, in connection therewith, appellant had received products manufactured by appellee-corporation. The written contract contains a merger clause which provides “in essence that no representation, promise or inducement not included in the contract shall bind any party. [Cit.]” Carpenter v. Curtis, 196 Ga. App. 234, 236 (395 SE2d 653) (1990). Accordingly, unless appellant had effectively rescinded this contract by promptly returning or offering to return the products to appellee-corporation, it had no viable tort claim for such misrepresentations as had allegedly induced it into entering therein. “The presence of a merger clause in the underlying contract is determinative if the defrauded party has not rescinded but has elected to affirm the contract. . . . Critical to rescission is the tender of benefits, the prompt restoration or offer to restore whatever the complaining party received by virtue of the contract^] [Cits.]” Carpenter v. Curtis, supra at 236-237.

In opposition to appellees’ motion, appellant relied only upon the complaint wherein it had alleged that it “hereby rescind[s] the contracts, and tender[s] back ... all benefits and rights accruing to [it]. . . .” (Emphasis supplied.) However, this allegation of only a contemporaneous restoration is not sufficient to aver such a viable rescission of the written contract as would authorize appellant to recover. “We think that the rule requiring one who seeks the rescission of a contract on the ground of fraud to restore, or offer to restore, the consideration received, as a condition precedent to bringing the action, is settled in this State.” (Emphasis supplied.) Williams v. Fouche, 157 Ga. 227, 228-229 (121 SE 217) (1924).

Decided September 19, 1991.

Walden G. Housman, Jr., for appellant.

Robert G. Stephens, Jr., for appellees.

Appellees’ evidence of the existence of a written contract containing a merger clause and of appellant’s receipt of products in connection with that contract demonstrated that a prelitigation restoration or offer of restoration was essential to appellant’s recovery and that appellant could not, therefore, recover under the facts as alleged in its complaint. In opposition, appellant relied only on its complaint and did not attempt to show that a genuine issue of material fact remained as to the viability of its claim. Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. . . .” OCGA § 9-11-56 (c). If appellant had a viable claim notwithstanding the pierced allegations of its complaint, the burden was upon it so to demonstrate. “[W]e do not cast upon the defendant-movant the burden of rebutting or disproving facts or theories which are not alleged, may not be fairly drawn from the allegations which are made, nor shown by any evidence in the record, in order to prevail on motion for summary judgment.” Baldwin County Hosp. Auth. v. Coney, 188 Ga. App. 339, 341 (1) (373 SE2d 252) (1988).

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A91A0986.
    STACY v. THE STATE.
    (410 SE2d 812)
   Cooper, Judge.

Appellant confessed to a series of burglaries which occurred in 1990 in a Gwinnett County neighborhood and was convicted by a jury of five counts of burglary, two counts each of aggravated assault, rape and aggravated sodomy and one count of cruelty to children. He appeals the trial court’s denial of his motion for new trial.

1. In his first enumeration of error, appellant contends his confession was not freely and voluntarily given; therefore, the trial court erred in admitting the confession over appellant’s objection. Appellant asserts that the confession was obtained by the physically intimidating investigating officers and signed by him under the fear of bodily harm after one of the officers stated, “years ago if this right here would have happened, they would have jumped on you (appellant).” Appellant claims that he did not read the written statement, although the record reveals he had the ability to read, and that he thought he was signing statements about his background.

Prior to admitting the confession, the trial court conducted a Jackson-Denno hearing and determined, based on the testimony of the investigating officer, appellant and appellant’s sister, a signed confession and a signed waiver of rights form, that appellant was advised of his rights and that he knowingly and intelligently waived them with no promise of benefit or threat of harm. The confession was a detailed account of five burglaries, including graphic descriptions of two violent sexual assaults, which was signed on each page by appellant. Moreover, the statement attributed to one of the officers quoted above was followed by the statement, “but we don’t do that now.” “ ‘ “Factual and credibility determinations as to voluntariness of a confession are normally made by the judge at a suppression hearing, and must be accepted by appellate courts unless such determinations are clearly erroneous. [Cit.]” [Cit.]’ [Cit.] In the case sub judice, the trial court did not abuse its discretion in discounting defendant’s credibility. [The investigating officer’s] testimony was sufficient to authorize a finding that defendant’s statement was freely and voluntarily made. [Cit.]” Blackmon v. State, 197 Ga. App. 133, 134 (1) (397 SE2d 728) (1990).

2. Appellant contends that there was insufficient evidence to support the verdict on Counts III and IV in which appellant was charged with the burglaries of the homes of Janet Petty and Mary Sutton, réspectively, and that his confession to those offenses was not corroborated by the evidence pursuant to OCGA § 24-3-53. Although appellant could not recall the specific dates of the break-ins, with regard to Count III, he confessed that he looked in a window of a home in the neighborhood in which he committed other burglaries; that he spotted a woman’s purse on the kitchen table; that he broke a glass door with a hammer used in an earlier burglary; and, upon discovering that the door was secured by a deadbolt lock, left the house and discarded the hammer. Janet Petty testified that she heard the sound of breaking glass at her back door on the evening of March 30, 1990; that she discovered broken glass and concluded that the wind caused the breakage; and that she later found another woman’s purse in her yard. Appellant stated that immediately before he broke the glass door in the one home, he had stolen a purse from another home and that while running from that home in which he broke the glass door, he had “[thrown] the purse down” after finding no money in it. As to Count IV, appellant admitted that he was walking behind homes in the same subdivision; that he looked into a back door and saw a purse on a living room chair; that he went inside, as the door was unlocked, took $25 from the purse, replaced the purse on the chair and went home; and that while inside, he could hear children’s voices. Mary Sutton testified that on April 4, 1990, she was at home with her child and her roommate’s child; that she heard a noise downstairs and fled to a neighbor’s home; that she had forgotten to lock the back door; and that money was missing from her purse. In both instances, we find that the evidence was sufficient to enable a rational trier of fact to find appellant guilty under both Counts III and IV beyond a reasonable doubt (Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979)) and that there was sufficient corroboration of appellant’s confession. Smith v. State, 195 Ga. App. 486 (2) (393 SE2d 743) (1990).

Decided September 19, 1991.

Walter J. Clarke, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

3. Appellant argues that the trial court erred in denying his motion for directed verdict on the ground that there was a fatal variance between the allegation in Count XIII of the indictment, that appellant committed the offense of cruelty to children by raping and sodomizing Carolyn Plott in front of her son, Joel, and the proof, which revealed that the mother was raped and sodomized in another room of the same house, although she was beaten and threatened in front of the child. “ ‘A variance between the allegata and probata is not fatal unless it misinforms the defendant as to the charges against him or leaves him open to subsequent prosecutions for the same offense. (Cit.)’ [Cit.] Since it does not appear that appellant was misled or prejudiced, it was not error for the trial court to deny appellant’s motion for directed verdict.” Stinson v. State, 197 Ga. App. 687, 689 (3) (399 SE2d 278) (1990).

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A1064.
    NORTHSIDE BUILDING SUPPLY COMPANY v. FOURES et al.
    (411 SE2d 87)
   Pope, Judge.

This court granted plaintiff’s application for interlocutory appeal from the trial court’s order denying plaintiff’s motion for summary judgment and vacating its previous grant of summary judgment.

Plaintiff Northside Building Supply Company filed this suit against Joanne S. Foures and Charles M. Foures based upon personal guaranties they allegedly gave as part of an application for credit by Country Hill Properties, Inc. It also filed a complaint against Country Hill Properties, Inc. and obtained a default judgment on the amount it claimed was due on the account. After the application for credit was executed, the Foureses were divorced. Defendant Joanne S. Foures answered the complaint and denied she is bound as a guarantor for Country Hill Properties, Inc. Defendant Charles M. Foures filed no answer, apparently because he has filed for bankruptcy. Thus, the motion for summary judgment was filed only against defendant Joanne S. Foures.

Plaintiff argues the trial court erred in denying its motion for summary judgment because it filed a supporting affidavit of its president in support of its motion; whereas defendant failed to file a counter-affidavit or submit any evidence in support of her contentions, thereby failing to show a genuine issue of material fact remains for trial. The party moving for summary judgment has the burden of establishing the non-existence of any genuine issue of fact, and all doubts must be resolved in favor of the non-moving party. Barlow v. Orkin Exterminating Co., 196 Ga. App. 822, 823 (397 SE2d 170) (1990). “Once the party moving for summary judgment has made a prima facie showing that it is entitled to judgment as a matter of law, the burden shifts to the non-movant, who must then come forward with rebuttal evidence sufficient to show the existence of a genuine issue of material fact. OCGA § 9-11-56 (e); [cits.].” Weldon v. Del Taco Corp., 194 Ga. App. 174 (390 SE2d 87) (1990). When deciding whether the moving party has made a prima facie showing, the court must consider all “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any.” OCGA § 9-11-56 (c).

Here, it was not necessary for the defendant to submit affirmative evidence in order to create a genuine issue of fact because the evidence plaintiff presented did not establish a prima facie case entitling plaintiff to summary judgment. The guaranty agreement, upon which plaintiff relies, left blank the name of the debtor. In Builder’s Supply Corp. v. Taylor, 164 Ga. App. 127, 128 (296 SE2d 417) (1982), this court held that when a contract of guaranty omits the identity of the principal debtor, even through a scrivener’s error, it fails to satisfy the Statute of Frauds and renders the contract unenforceable. Accordingly, the trial court properly denied plaintiff’s motion for summary judgment.

Decided September 19, 1991.

Richardson, Chenggis & Constantinides, Platon P. Constantinides, George G. Chenggis, for appellant.

Frankel, Harwick, Tanenbaum, Fink & Clark, Martha J. Kuckleburg, for appellees.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


author: McMurray, Presiding Judge.

text:
    A91A1114, A91A1366.
    LEONARD et al. v. OGNIO; and vice versa.
    (410 SE2d 814)
   McMurray, Presiding Judge.

Plaintiff Ognio purchased a house and lot from defendant Gerald Leonard and defendant Jeanette Leonard, former wife of Gerald Leonard. Afterwards, plaintiff discovered certain defects in the house and this action for breach of contract and fraud resulted. Plaintiff alleged that the house contained such latent defects in the sewerage system and foundation as to render the house uninhabitable, that the defects were well known to defendants, that the defects were not revealed by defendants, that the defects were unknown to plaintiff and could not be ascertained by reasonable inspection, and that the defendants concealed the defects from him. Upon the trial of the case, a jury returned a verdict in favor of plaintiff and against defendants in the sum of $20,978.54 actual damages and $6,000 punitive damages. A judgment in this amount was entered and following the denial of their motion for new trial, defendants filed their timely notice of appeal in Case No. A91A1114.

On January 8, 1991, defendants’ attorney received a bill of costs for the appellate record from the clerk of the superior court. Subsequently, plaintiff filed his motion to dismiss defendants’ notice of appeal on the grounds of defendants’ failure to pay the costs. Defendants paid the bill of costs on February 20, 1991, and the trial court subsequently denied plaintiff’s motion to dismiss defendants’ notice of appeal. Plaintiff appeals in Case No. A91A1366 from the denial of his motion to dismiss defendants’ appeal. Held:

OCGA § 5-6-48 (c) provides in part that “the trial court may order the appeal dismissed where there has been an unreasonable delay in the transmission of the record to the appellate court, and it is seen that the delay was inexcusable and was caused by the failure of a party to pay costs in the trial court or file an affidavit of indigence; provided, however, that no appeal shall be dismissed for failure to pay costs if costs are paid within 20 days (exclusive of Saturdays, Sundays, and legal holidays) of receipt by the appellant of notice, mailed by registered or certified mail, of the amount of costs.” In contrast to the safe harbor of 20 days (exclusive of Saturdays, Sundays, and legal holidays) under the statute for payment of costs, this Court has held that “a delay of more than 30 days in paying costs is prima facie unreasonable and inexcusable (Bouldin v. Parker, 173 Ga. App. 526 (327 SE2d 760) (1985)). . . .” Unifund General v. Orr, 191 Ga. App. 836, 837 (1) (383 SE2d 199). The exclusion of weekends and holidays applicable to the 20 day safe harbor provision has not been mentioned in the case law in connection with the calculation of time for the over 30 day period. Indeed, in Continental Investment Corp. v. Cherry, 124 Ga. App. 863, 865 (1) (186 SE2d 301), this Court appears to have stated, at least implicitly, that the exclusion of weekends and holidays is not applicable to determination of the over 30 day period. Furthermore, a review of a calendar does not reveal any instances when the two rules so construed will be in conflict.

Applying these principles to the facts of the case sub judice, it is apparent that defendants delayed more than 30 days in paying costs and that such delay is prima facie unreasonable and inexcusable. However, the inference arising from the more than 30 day delay in paying costs is not conclusive and may be rebutted by evidence presented by an opposing party. Unifund General v. Orr, 191 Ga. App. 836, 837 (1), supra. The determination of the factual issues thus presented rests with the trial court, which is vested with a broad discretion which will not be disturbed in the absence of an abuse of discretion. Lloyd v. Hodge, 191 Ga. App. 355 (381 SE2d 540); Typo-Repo Svcs. v. Bishop, 188 Ga. App. 576, 578 (1) (373 SE2d 758).

Defendants presented two affidavits in opposition to plaintiffs motion to dismiss defendants’ notice of appeal. Defense counsel’s affidavit states that after he received the costs bill he caused a copy of the costs bill along with certain correspondence to be forwarded to defendants for their payment of costs. The affidavit of defendant Gerald Leonard states that he did not receive the costs bill or attached correspondence and had no knowledge of it until he was contacted by his attorney’s office following the filing of plaintiff’s motion to dismiss the notice of appeal. All of this might show an excuse for defendants based on an apparent failure of the post office were it not for the wording of the correspondence which accompanied the costs bill. Defense counsel’s letter to his clients asked them to “[pjlease forward to this office your check . . ., so that we may pay the costs of the notice of appeal.”

Decided September 19, 1991.

Joseph R. Baker, for appellants.

Thomas M. Stubbs, Jr., for appellee.

Defense counsel was charged with knowledge of the law which required prompt payment of costs, knew the content of his own letter, and knew he had not received the requested reply. In other words, notwithstanding the failed attempt to communicate with his clients, defense counsel had full knowledge of all of the facts and circumstances necessary to prevent an unreasonable and inexcusable delay in the payment of costs. Thus, the evidence proffered by defendants fails to present any explanation for the delay in payment of costs. In view of the more than 30 day delay in the payment of costs and the absence of any evidence as to why the delay occurred, the trial court was not authorized to exercise its discretion and deny the motion to dismiss defendants’ notice of appeal. Cousins Mtg. Investments v. Hamilton, 147 Ga. App. 210 (248 SE2d 516); Jones v. State, 123 Ga. App. 672, 673-674 (182 SE2d 190). In Case No. A91A1366, the trial court’s denial of plaintiff’s motion to dismiss defendants’ notice of appeal was an abuse of discretion and must be reversed.

Judgment reversed in Case No. A91A1366 and appeal dismissed in Case No. A91A1114.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A1433.
    McCLENDON v. THE STATE.
    (410 SE2d 760)
   Birdsong, Presiding Judge.

Johnny Eugene McClendon appeals his judgment of conviction of DUI and driving with an unlawful alcohol concentration in violation of OCGA § 40-6-391 (a) (1) and (4), respectively.

A county police officer observed a Camaro automobile stopped in the emergency lane of an entrance ramp on 1-285; the brake lights of the car were on but no one could be seen inside the vehicle. As the officer approached the car, he observed appellant unconscious and slumped across the front seat; he noticed that the car’s engine was running and the car was in “drive.” Before appellant awoke, the officer smelled a strong odor of alcohol coming from appellant and his car. For approximately five minutes the officer attempted to awake appellant by shaking and pushing him and by talking loudly to him. After appellant awoke and became relatively oriented, he was asked if he were okay, as the officer was going to call an ambulance. After being told appellant was okay, the officer asked him for his driver’s license and inquired as to whether he had been drinking. Appellant admitted he had been drinking and was then asked to exit the car and perform certain field sobriety evaluation tests, which he failed. At the point where appellant exited the vehicle, he was no longer free to go; after failing the sobriety tests, appellant was placed under arrest for DUI and transported to the county law enforcement office. During transport, appellant begged the officer not to arrest him and stated he had stopped because he could not go on any further as he was too intoxicated. Subsequently, appellant was given a breath test, which showed a result of .14 grams percent. Held:

1. Appellant contends the trial court erred in admitting both his initial statement that he had been drinking and his subsequent statement that he had stopped because he was too intoxicated to drive any further, as he had not made an intelligent and knowing waiver of his Miranda rights.

(a) “When a violator is placed in custody or under arrest at a traffic stop the protection of Miranda arises; however, roadside questioning at a routine stop does not constitute such a custodial situation.” Lebrun v. State, 255 Ga. 406, 407 (3) (339 SE2d 227); compare Dixon v. State, 196 Ga. App. 15, 18 (8a) (395 SE2d 577); Griffin v. State, 191 Ga. App. 302, 303 (2) (381 SE2d 562); Hall v. State, 188 Ga. App. 322 (373 SE2d 32). “ ‘The test for determining whether a person is “in custody” at a traffic stop is if a reasonable person in the suspect’s position would have thought the detention would not be temporary. [Cits.]’ ” Crum v. State, 194 Ga. App. 271, 272 (390 SE2d 295); accord Hughes v. State, 259 Ga. 227, 228 (378 SE2d 853).

The initial statement made by appellant to the officer in response to a question as to whether he had been drinking is admissible. The uncontroverted evidence of record shows the initial statement by appellant was made at a time when appellant was neither under arrest nor in custody within the meaning of Crum. Appellant’s initial admission that he had been drinking was made in response to roadside questioning during a routine traffic stop. Lebrun, supra; see also Harper v. State, 193 Ga. App. 551 (1) (388 SE2d 379).

Further, “ ‘[o]n appeal of the denial of a motion to suppress, the evidence is to be construed most favorably to the upholding of the findings and judgment made. The trial court’s findings must be adopted unless determined to be clearly erroneous.’ ” Crum, supra at 272. If a portion of the trial court’s findings is erroneous and a portion of the findings is not clearly erroneous, that portion not clearly erroneous will be adopted by the appellate courts. The portion of the trial court’s findings that would include a finding that the first statement of appellant admitting he had been drinking was made when appellant was not in “custody,” was not clearly erroneous, and accordingly the findings to this extent are hereby adopted by this court.

(b) The statements made by appellant, begging the officer not to place him under arrest and admitting he stopped because he was too intoxicated to go any further, are shown by the record to have been made while appellant was in custody within the meaning of Crum. However, the evidence of record establishes that these statements were made by appellant voluntarily and not in response to any form of custodial questioning and interrogation. “[T]he necessity of administering Miranda warnings exists only when the individual is interrogated while in custody.” Ramos v. State, 198 Ga. App. 65, 66 (2) (400 SE2d 353). As the record establishes that after appellant was in custody he was not interrogated by the officer, the Miranda warning was not required. Cash v. State, 224 Ga. 798, 799 (1) (164 SE2d 558); Brown v. State, 183 Ga. App. 476, 478 (2) (359 SE2d 233). We will not reverse the correct ruling of the trial court regardless of the reason given therefore. Ely v. State, 192 Ga. App. 203 (4) (384 SE2d 268).

2. The Supreme Court of Georgia has recently held that “trial courts may take judicial notice that the Intoximeter 3000 machine test results are based on accepted scientific theory or ‘rest upon the laws of nature’; and, when the statutory requirements for admissibility are met, the results may be admitted into evidence without expert testimony regarding the scientific theory behind the operation of the test.” Lattarulo v. State, 261 Ga. 124, 127 (3) (401 SE2d 516). Pretermitting whether the statutory requirements of OCGA § 40-6-392 for admissibility were met in this instance is the issue of waiver.

Before trial appellant filed a motion captioned, “Motion to Suppress Evidence of Intoximeter Test.” The sole ground asserted therein for suppression was that appellant had not been advised, under the Georgia Implied Consent Law (OCGA § 40-6-392) of his right to have an additional test or tests performed by a qualified individual of his own choosing. OCGA § 40-6-392 (a) (3). At the suppression hearing and at trial, the officer testified he had twice advised appellant of his right to have additional testing under OCGA § 40-6-392, and that appellant understood this advice. Defendant at no time indicated a desire to have such additional testing. The trial court found that the officer “gave the legally required Implied Consent advisements.” We hold that the trial court’s finding in this regard was not clearly erroneous and thus must be adopted. Crum, supra at 272. Moreover, pretermitting the trial court’s finding that a showing of appellant’s understanding of this advisement of rights is not necessary to comply with the law, the record establishes without controversion that appellant did understand the rights of which he was advised. Accordingly, the trial court did not err in denying appellant’s motion to suppress evidence of the intoximeter test at the suppression motion hearing.

During trial, the State introduced evidence as to the intoximeter results of “.14 grams percent” without objection; in fact, appellant expressly posed “no objection” to the introduction of the printed slip from the Intoximeter 3000 which had recorded this test result. Subsequently, appellant made a motion for directed verdict on the grounds that, as to both counts, there was no evidence that appellant was driving the car. Thereafter, appellant amended the motion to assert that the evidence failed to show that appellant was in control of the car within three hours of the showing of the level of alcohol present in the blood. At no point, did appellant argue that an adequate foundation had not been laid for the admission of the results of the Intoximeter 3000. Except as to the sole issue litigated in support of appellant’s so-called motion to suppress of intoximeter results (that is, the issue of advice as to additional testing), appellant failed to raise timely and specifically any issue as to lack of foundation for admissibility of intoximeter test results. As above held, appellant’s assertion as to lack of advice as to additional testing is without merit. Regarding any remaining issues of admissibility due to lack of foundation, appellant has failed to make a timely and specific objection at trial as to those grounds and therefore has waived such issues on appeal. Helms v. State, 191 Ga. App. 283 (381 SE2d 428). Moreover, we find no basis in this record for disregarding the precedent created in Calloway v. State, 191 Ga. App. 383 (1) (381 SE2d 598). This enumeration of error is without merit.

Decided September 4, 1991

Reconsideration denied September 20, 1991.

Theron M. Moore, for appellant.

Ralph T. Bowden, Jr., Solicitor, J. Cliff Howard, Andrew Rogers, Assistant Solicitors, for appellee.

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A1094.
    BRUNER et al. v. UNITED STATES LEASING CORPORATION.
    (410 SE2d 817)
   Carley, Presiding Judge.

Pursuant to a written agreement, appellant-defendants leased a telephone system from appellee-plaintiff. When appellants subsequently defaulted on the monthly rent payments, appellee brought suit. The case was tried before a jury and appellants moved for a directed verdict as to the enforceability of the liquidated damages provision of the written lease agreement. Although the trial court denied the motion, in its charge, it gave the jury instructions not only on the liquidated damages provision, but also on the general measure of damages recoverable in a breach of lease action. The jury returned a verdict of $6,192 in favor of appellee. This was an amount less than the evidence would have authorized appellee to recover under the liquidated damages provision. The trial court entered judgment on this jury verdict and appellant moved for judgment notwithstanding the verdict or, in the alternative, for new trial. The trial court denied this post-judgment motion and appellant appeals.

Decided September 20, 1991.

C. Alan Mullinax, for appellants.

Lamberth, Bonapfel, Cifelli & Wilson, Stuart F. Clayton, Jr., for appellee.

Appellants enumerate as error the denial of their motion for judgment n.o.v. However, the unenforceability of the liquidated damages provision would not provide appellants with a defense to liability for breach of contract. It would affect only the extent to which appellee would be authorized to recover for appellants’ breach of contract. See generally Adams v. D & D Leasing Co. of Ga., 191 Ga. App. 121 (381 SE2d 94) (1989). Accordingly, appellants were harmed by the trial court’s ruling on the liquidated damages provision only if they were thereafter found liable for a greater amount of damages than appellee would otherwise have been entitled to recover as actual damages for the breach of contract. As noted, the $6,192 that was actually returned against appellants was less than the amount of damages that appellee would have been entitled to recover under the formula provided in the liquidated damages provision. There is no contention that, under the evidence and the trial court’s jury charge, appellee would not be entitled to recover at least $6,192 as actual damages for appellants’ breach of contract. Accordingly, the error, if any, in the trial court’s failure to hold the liquidated damages provision to be unenforceable is, at most, harmless under the circumstances of the instant case. See generally Morrow v. Johnston, 85 Ga. App. 261 (4) (68 SE2d 906) (1952).

Judgment affirmed.

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


author: Beasley, Judge.

text:
    A91A1169.
    BANKS v. THE STATE.
    (410 SE2d 818)
   Beasley, Judge.

Having been denied a new trial, Major Banks appeals his conviction for selling cocaine (1/5 gram for $40), OCGA § 16-13-30 (b), in violation of the Georgia Controlled Substances Act.

Construction of the evidence at trial in favor of the verdict shows the following. The Georgia Bureau of Investigation was conducting undercover drug operations in Hall County. Agents had information that they could purchase cocaine from an individual named “Major” at a local poultry processing plant. Three agents and a confidential informant drove to the plant. One of the agents and the informant exited the car and walked to the plant’s front fence. The informant asked an employee standing at the fence whether the employee knew “a tall black male with Jerry curls that goes by the name of Major, who works there.” The employee responded that he did and went inside the plant.

Approximately one minute later, Banks came out of the building and to the fence gate. The agent and informant followed Banks across the parking lot, out a side gate and onto a dirt drive. The informant told Banks that the agent wanted to buy some cocaine. Banks asked the agent how much he wanted. The agent stated “half,” meaning a $50 amount of cocaine which was probably less than one gram. Banks reached into his freezer suit pocket and pulled out one corner tie-up plastic bag of cocaine. He indicated to the agent that the cocaine would cost $40 rather than $50 and handed the agent the cocaine. After examining the drugs, the agent handed Banks $40. Banks commented that the cocaine was pure.

1. In his first and second enumerations of error, appellant challenges the admission of evidence of similar transactions. He maintains that the evidence was admitted without proper foundation in that the State failed to show identity of the perpetrator and similarity of offense. He further asserts that admitting the evidence without requiring the state to call live witnesses and produce testimonial evidence violated his rights of confrontation under the State and Federal Constitutions.

As to the confrontation contention, no such objection was lodged at trial; therefore, it will not be entertained on appeal. “[I]t is well-settled that this court will not consider issues raised for the first time on appeal. [Cit.]” Cooper v. State, 173 Ga. App. 254, 256 (1) (325 SE2d 877) (1985).

The contention that the independent transactions were substantively inadmissible fails. “Generally, evidence of other independent crimes or acts committed by the defendant is inadmissible as it tends to put the defendant’s character into evidence. [Cit.] Exceptions to this rule permit evidence of independent crimes committed by the defendant to be admitted for the limited purposes of showing identity, motive, plan, scheme, bent of mind and/or course of conduct. [Cit.]

“There are two conditions to admissibility. The first condition is that there must be some evidence establishing that the independent crime was committed by the defendant. The evidence may be circumstantial but it must be more than mere speculation. [Cits.] . . .

“The second condition of admissibility requires that there ‘be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter.’ [Cit.]” Chastain v. State, 260 Ga. 789, 790 (3) (400 SE2d 329) (1991).

While it is true as appellant points out that a defendant’s other possession of drugs may not be admissible as a similar transaction in the defendant’s trial for selling drugs, see Faison v. State, 199 Ga. App. 447 (405 SE2d 277) (1991), this was a sale case in which prior sales were admitted. The independent prior transactions were a $100 sale of marijuana to an undercover GBI agent on September 29, 1984, and a subsequent $50 sale of cocaine to the same agent six days later. They were four years earlier, but'defendant had been incarcerated for at least part of the interim due to a sentence of ten years to serve (plus probation). Both transactions were charged in a single indictment, the content of which was read to the jury by the State’s attorney. The face of the indictment informed the jury that both crimes had occurred in an adjoining county to the one on trial, that both were also sales of similar quantities of drugs by virtue of the similar specified dollar amounts, and that both also involved undercover sales to a government agent. A certified copy of the indictment and sentences was introduced into evidence.

This case also differs from Stephens v. State, 261 Ga. 467 (405 SE2d 483) (1991). In Stephens, the only evidence as to similarity of the three prior sales of cocaine that was before the jury was the certified copy of the convictions, which had been entered following guilty pleas. The face of the indictment for these crimes contained only the bare allegation of the criminal act of the sale of cocaine in the particular county. The majority noted that had the State presented evidence of similarity in the case during trial as it had done in the USCR 31.3 (B) hearing at which the prosecutor stated in his place the relevant facts of the prior conviction, then the only question concerning a challenge on appeal as to similarity would be whether the trial court’s finding was clearly erroneous. The record in Stephens reveals that the prosecutor stated in his place that the prior crime was a hand-to-hand undercover sale involving a confidential informant, the approximate quantity of drugs sold, and a dollar amount of the sale.

The trial court’s finding of similarity to the charge on trial was not “clearly erroneous.” Stephens at fn. 2.

As to the question of identity, the documentary evidence all bore the name, “Major Banks, Jr.” See Williams v. State, 180 Ga. App. 227 (348 SE2d 747) (1986); Coggins v. State, 168 Ga. App. 12, 13 (4) (308 SE2d 36) (1983); Fambro v. State, 165 Ga. App. 445, 447 (3) (299 SE2d 114) (1983). The concordance of name alone in the absence of proof to the contrary, i.e., that appellant was not the perpetrator of the prior offenses, was some evidence of appellant’s identity as the perpetrator of the independent crimes. Oller v. State, 187 Ga. App. 818, 820 (2) (371 SE2d 455) (1988) (concurred in fully as to Division 2).

2. In his fourth enumeration of error, appellant contends that the trial court erred in “allowing the prosecutor to continually question defense witnesses as to [appellant’s] prior convictions and his attendance at the parole office,” thereby improperly injecting his character into evidence.

There were no objections to the questions or the responsive testimony. “In this state it is necessary to object to evidence at the time it is actually offered, and failure to do so amounts to a waiver of any objection which the appealing party might have. [Cits.] The reason for this rule is clear. If the appellant has an objection, there is an obligation to call the matter to the court’s attention so the trial judge will have an opportunity to remedy the situation. [Cit.]” Bridgers v. State, 183 Ga. App. 98, 99 (1) (357 SE2d 894) (1987).

3. In his third enumeration of error, appellant contends that the trial court erred in charging to the jury entire OCGA § 16-13-30 (b), which makes it unlawful to “manufacture, deliver, distribute, dispense, administer, sell, or possess with intent to distribute any controlled substance,” instead of charging just on “sell.” He maintains that this amounted to instruction on theories of guilt inconsistent with the indictment.

At the conclusion of the charge, defense counsel stated, “We have no exceptions at this time.” This was insufficient to preserve objections to the charge on appeal. Cooper v. State, 188 Ga. App. 297, 298 (2) (372 SE2d 679) (1988).

4. In his fifth and final enumeration of error, appellant contends that the trial court erred in imposing a life sentence pursuant to OCGA § 16-13-30 (d), inasmuch as it was not established that he had previously been convicted of selling cocaine. He maintains there was insufficient evidence that he was the same “Major Banks, Jr.,” as the perpetrator of the previous cocaine sale.

Following the verdict and poll of the jury, the court addressed the issue of sentencing. The State sought to introduce evidence of the offenses which had been admitted as similar transactions, see Division 1, supra, as well as evidence of three other non-drug convictions. Defense counsel objected that appellant had not been indicted as a recidivist and that copies of convictions of the offenses had not been provided to the defense prior to trial. Defense counsel admitted that the court “probably [had] no choice” as to the giving of a life sentence, yet argues that the court had discretion in sentencing. Counsel never raised an issue of appellant’s identity as perpetrator of the other sale of cocaine or the remaining prior offenses. In addition, the court delayed sentencing in order to give both sides the opportunity to further present their positions. At the subsequent sentencing hearing defense counsel argued inadequate notification by the State, but counsel never mentioned a perpetrator identity problem with regard to the sentencing. Inasmuch as appellant raises his present contention as to sentencing for the first time on appeal, this Court will not consider it. See Division 1, supra. In any event, there was uncontroverted evidence via copy of the prior drug indictment, verdict, and sentences that appellant was indeed the “Major Banks, Jr.” who committed the earlier sale of cocaine. See Division 1, supra.

Decided September 20, 1991.

H. Bradford Morris, Jr., for appellant.

C. Andrew Fuller, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


text:
    A91A0829.
    McLEROY PLUMBING SERVICE, INC. et al. v. STARKS.
    (410 SE2d 756)
   Pope, Judge.

We granted the employer’s request for discretionary appeal to review the order of the superior court affirming an award in favor of the claimant by the State Board of Workers’ Compensation (the “board”). Claimant, Joshua L. Starks, was employed by McLeroy Plumbing Service in 1986 as a plumber’s helper. That position involved manual labor, including the lifting of certain heavy pipes. Starks testified that on August 11, 1989, while he was lifting a pipe from the ground he injured his back. He further testified that he notified the supervisor of the job about his injury on the same day.

It is undisputed that Starks has a history of previous back problems, which resulted in surgery as early as 1980. It is also undisputed that Starks has a congenital back condition known as spinal stenosis, which is a very narrow spinal canal. The record also reflects that after Starks’ injury in August 1989, he underwent back surgery on three occasions. On February 21, 1990, a hearing was held before the administrative law judge (“ALJ”), who found that Starks was injured while at work on August 11, 1989, and that injury aggravated his preexisting condition resulting in a new compensable injury. The award of the ALJ was appealed to the board which, on August 3, 1990, adopted the award of the ALJ as the award of the board. The employer then appealed to the Superior Court of Clarke County, which affirmed the decision of the board. The employer now appeals from the superior court’s order. We affirm.

1. In its first enumeration of error, the employer urges this court to find the superior court erred in upholding the decision of the board because all competent medical evidence establishes that Starks’ condition is a congenital, developmental condition that pre-existed his employment with McLeroy Plumbing, and was not aggravated by an on-the-job injury while he was employed by McLeroy Plumbing. In appeals to this court, an award of the board will not be disturbed when there is any evidence to support it. Fairfield Plantation v. Parmer, 173 Ga. App. 619, 620 (327 SE2d 580) (1985). “ ‘An award of compensation has been held to be justified when “. . . the claimant sustains a second accident as the result of a specific job-related incident which aggravates a pre-existing condition which resulted from a prior accident. In these circumstances, the second accident which aggravated the pre-existing condition is a new injury, if the second accident at least partially precipitated the claimant’s disability. [Cit.]” ’ ” Id. The same rule would apply to accidents which aggravate a preexisting congenital condition.

A review of the record in this case reveals the treating physician testified that although his records did not reflect the exact dates, Starks told the doctor throughout his treatment that he lifted heavy pipe at work. The doctor further testified that even though some of the surgery performed on Starks after the alleged date of injury alleviated his problems stemming from his spinal stenosis condition, if Starks had not experienced disk herniations, which could have been caused by lifting heavy pipe, he probably would not have needed corrective surgery for his spinal stenosis condition at his age. Thus, the medical evidence is consistent with the board’s findings.

2. In its second enumeration of error, the employer argues that the superior court erred in concluding the board was entitled to believe the testimony of Starks concerning his alleged on-the-job injury because his testimony was impeached and proven false leaving no competent evidence to support the award of the board. “If a witness shall willfully and knowingly swear falsely, his testimony shall be disregarded entirely, unless corroborated by circumstances or other unimpeached evidence.” OCGA § 24-9-85 (b).

The record reveals that Starks’ testimony at the hearing concerning the occurrence of a specific job-related incident was impeached by his deposition testimony that he did not remember any specific event, such as lifting something, that caused his back problems to begin in August 1989. At the hearing in this case, however, Starks testified that “now I’ve had time to think about it and everything I can recall that particular day that I had that particular pain.” If Starks’ testimony at his deposition and at the hearing was the only evidence of his injury, there would be no competent evidence to support the award. The treating physician in this case, however, testified Starks told him throughout his treatment that he carried heavy pipes at work, and that Starks related that activity to the symptoms he was having. The testimony of the treating physician was not impeached on that point. Thus, his testimony offers sufficient competent evidence that Starks’ injury was work-related. Accordingly, the superior court properly affirmed the order of the board.

Decided September 3, 1991

Reconsideration denied September 23, 1991.

Saveli & Williams, Mark S. Gannon, Debra L. Dalton, for appellants.

Scott & Quarterman, Howard T. Scott, Donald T. Wells, Jr., for appellee.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.