text:
    A90A2023.
    OWEN v. M & M METRO SUPPLY, INC.
    (401 SE2d 612)
   Beasley, Judge.

M & M Metro Supply filed a complaint against Owen, alleging that he owed $14,103.77 on open account.

Owen filed a pro se answer contending that “[tjhere was unsurupius [sic] actions taken which may involve forgery.”

Some months later plaintiff filed a request that the case be put on the next available trial calender, and on February 3 it filed a pretrial order. The case was placed on the trial calendar for the week beginning Monday, March 12. In the interim plaintiff filed a motion for summary judgment accompanied by its comptroller’s affidavit and certain business records showing unpaid invoices in the amount of $14,103.77 charged to Owen’s account. The affiant stated that plaintiff was in possession of no other documents purporting to bear defendant’s signature and that there had been no forgery of any documents relating to his account. The certificate of service stated that a copy of the motion for summary judgment was served on February 28.

On Monday, March 12 and Monday, March 26, both sides appeared in court and announced ready. The case was finally reached on Thursday, March 29. Plaintiff announced ready but defendant did not appear, so plaintiff moved that defendant’s pleadings be stricken and that a default judgment be entered. A default judgment was entered on March 30.

Defendant Owen moved that the case be re-opened. The court set aside the default judgment and on May 11 set the matter for a hearing on May 24 on plaintiff’s motion for summary judgment. Defendant was given until June 4 to file evidence in opposition to the motion.

On the day of the hearing, defendant filed a “Brief In Support of Defendant’s Motion To Set Aside Summary Judgment.” It alleges that plaintiff sold defendant a vehicle which appellee did not own; there were material defects which were covered by warranties which were not honored; and, without obtaining defendant’s co-payee endorsement, plaintiff cashed a check and failed to apply any proceeds of the account.

The court noted that the brief was neither executed under oath nor alleged sufficient facts to support the allegations of fraud. It concluded: “It now appears that the court was correct in granting the Default Judgment entered March 30, 1990.” It held that plaintiff had pierced the defensive pleadings and that it was therefore entitled to summary judgment, in that no genuine issues of material fact remained. Judgment was entered in plaintiff’s favor.

Defendant now complains that he received no notice of the motion for summary judgment until the default judgment was set aside on May 11. On this basis, he contends that the trial court erred in setting the hearing on the motion for summary judgment on May 24, since OCGA § 9-11-56 (c) requires such a motion to be served at least 30 days before the time fixed for the hearing. He also argues that neither plaintiff’s pleadings nor its affidavit pierced his allegations of forgery and conversion of funds.

1. Proof of service of pleadings and other papers subsequent to the filing of the original complaint may be by certificate of counsel. OCGA § 9-11-5 (b); Allen v. Bd. of Tax Assessors of Paulding County, 247 Ga. 568 (277 SE2d 660) (1981). Such service is perfected where there is proof of service in one of the ways specified in the statute, even though the adverse party may not have in fact received actual notice. Allen v. Bd. of Tax Assessors, supra. In addition, where, as here, a party appears at the summary judgment hearing without objection, he waives a complaint that the hearing is being held less than 30 days after service of the motion. Connell v. Connell, 119 Ga. App. 485, 488 (4) (167 SE2d 686) (1969).

2. Where a party files a motion for summary judgment supported by evidence, the adverse party may not rest upon the bare allegations or assertions in his responsive pleadings; his response, by some form of contrary evidence, must set forth specific facts showing that there is a genuine issue of material fact to be tried. OCGA § 9-11-56 (e); Germaine v. Webster’s Shopping Center, 116 Ga. App. 547 (158 SE2d 682) (1967); see Horton v. Middle Ga. Bank, 191 Ga. App. 51, 52-53 (2) (380 SE2d 749) (1989). “The burden of proof is shifted when the moving party makes a prima facie showing that it is entitled to judgment as a matter of law. At that time the opposing party must come forward with rebuttal evidence or suffer judgment against him. Skinner v. Humble Oil &c. Co., 145 Ga. App. 372 (243 SE2d 732) (1978).” (Emphasis in original.) Kelly v. American Fed. Savings &c. Assn., 178 Ga. App. 542, 542-543 (1) (343 SE2d 755) (1986).

Decided January 31, 1991.

G. Wilson Jones, for appellant.

Jeffrey B. Talley & Associates, Michael J. Ratelle, F. Andrew Lane, Jr., for appellee.

This the appellant did not do. “[A] shadowy semblance of an issue is not enough to defeat the motion [for summary judgment].” Holland v. Sanfax Corp., 106 Ga. App. 1, 5 (1) (126 SE2d 442) (1962).

Judgment affirmed.

Pope and Andrews, JJ., concur.


source: Caselaw Access Project

author: Sognier, Chief Judge.

license: Public Domain

text:
    A90A2028, A90A2029.
    WALKER v. THE STATE (two cases).
    (401 SE2d 613)
   Sognier, Chief Judge.

Willie John Walker was charged in two indictments with a total of four counts of selling cocaine. The indictments were tried together and Walker was convicted by a Tattnall County jury on all counts. We have consolidated his appeals from the judgments entered on both indictments.

1. Appellant first contends the trial court erroneously limited the scope of his cross-examination of GBI Special Agent Darryl Chaneyfield. At trial, Agent Chaneyfield testified that he was a passenger in a vehicle driven by a confidential informant when the informant saw appellant and an unidentified man standing in a motel parking lot next to a car and pointed them out to the agent. Chaneyfield stated that he and the informant approached appellant and another man and purchased $20 worth of crack cocaine. On cross-examination, appellant’s counsel established that the vehicle in which the agent had been a passenger was a pickup truck, and then asked whether the truck was “a full-size pickup or a small pickup.” The prosecutor objected to the question, contending it was irrelevant and might prejudice the confidentiality of the informant, and the trial court sustained the objection.

Appellant maintains this ruling was error because the information sought was relevant to show the agent’s vantage point when he encountered appellant, and asserts the disallowance of this question impermissibly abridged his right of cross-examination. We do not agree. “Every party has the right to a thorough and sifting cross-examination of the witnesses called against him. OCGA § 24-9-64. However, the trial court may restrict the scope of the cross-examination to matters relevant to the issues being tried, and the results of the exercise of that discretion will not be interfered with on appellate review unless the discretion was manifestly abused. [Cits.]” Fowler v. State, 171 Ga. App. 491, 493 (2) (320 SE2d 219) (1984). Since the agent had already testified at length about what he was able to observe during the transaction at issue, we find no abuse of the trial court’s discretion in the refusal to allow the question.

2. Appellant’s other enumeration concerns the court’s recharge to the jury. The transcript reveals that after a period of deliberation, the jury asked for instructions on “[w]hat constitutes a sale of cocaine.” They questioned whether a sale occurred only when the accused physically transfers the contraband and receives the money from the buyer, or whether use of an intermediary also could fall within the definition. In response, the trial judge instructed them to use the term “sale” in its ordinary meaning, and explained that a prohibited sale could occur through an intermediary without direct physical contact between the buyer and seller. Appellant reserved objections, and now contends on appeal that the court erred by failing to recharge on reasonable doubt, especially given that the instruction at issue was favorable to the State.

When the jury requests an additional instruction on a specified point, it is within the trial court’s discretion to confine its instruction to the scope of the jury’s inquiry. Dyer v. State, 167 Ga. App. 310, 311 (3) (306 SE2d 313) (1983). “ ‘The jury asked for a charge upon a specific point and [was] charged upon that point. The jury was specifically reminded to recall and apply all the other instructions of the court. This was sufficient to satisfy the requirements of the law.’ [Cit.]” Id. Appellant urges us to follow the principle enunciated in United States v. Carter, 491 F2d 625, 634 (5th Cir. 1974) that “when the jury requests further instructions on points which are favorable to the Government, the trial judge should repeat instructions favorable to the defense where the requested instructions taken alone might leave an erroneous impression in the minds of the jury. [Cits.]” Although the Supreme Court has neither accepted nor rejected this principle, see Appling v. State, 256 Ga. 36, 38 (2) (343 SE2d 684) (1986), this court did approve its use in Brannon v. State, 163 Ga. App. 340, 341 (2) (295 SE2d 110) (1982). However, even if this principle is applied, we find no error. Here, as in Dyer, supra at 311 (3), there is no indication that the recharge would leave the jury with an erroneous impression. Further, the court specifically instructed the jury not to unduly emphasize the instruction given on recharge, but to recall and apply the entire charge. See id. Accordingly, we affirm the trial court’s judgment.

Decided January 31, 1991.

Hal T. Peel, for appellant.

Dupont K. Cheney, District Attorney, Lisa M. Young, Assistant District Attorney, for appellee.

Judgments affirmed.

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


author: Cooper, Judge.

text:
    A90A2090.
    MILLER v. THE STATE.
    (401 SE2d 766)
   Cooper, Judge.

Appellant was convicted by a jury of the offenses of burglary and theft by taking. Although appellant appeals both convictions, his sole enumeration of error is that the evidence was insufficient to convict him of burglary.

The evidence adduced at trial revealed that in July 1989, a Mr. Shewbert returned home to discover that a leaf blower and extension cord were missing from his garage. Shewbert’s house is located at the corner of Old Flowery Branch Road and Cascade Road and the street address is 2818 Cascade Woods. On that day, a Mr. Effler had been replacing the roof on Shewbert’s home, and when Effler left the home in the mid-afternoon, he put his air compressor in Shewbert’s garage for use the next day. Effler left the door to the garage open. The next day, Effler discovered that his air compressor was missing. Several months later, Effler saw his air compressor at the home of his neighbor who testified that he had purchased the air compressor from the appellant, his brother’s stepson.. The neighbor had received a handwritten receipt from appellant for the compressor.

After his arrest, appellant gave the officers a written statement as follows: “I took air compressor from the house on Old Flowery Branch Road and weed blower.” The investigating officer also testified that appellant gave an oral statement to him concerning appellant’s disposition of the stolen property and repeating appellant’s admission that he took the property from the house on Old Flowery Branch Road. On cross-examination, the officer stated that appellant did not specifically name the street address of the residence on Cascade Woods as the house from which he took the property but that during the course of their conversation with appellant, the officers from their own personal knowledge indicated to appellant the home’s street address. As a result, the officer had indicated that appellant named the Cascade Woods address in his admission.

Decided January 31, 1991.

L. Eddie Benton, Jr., for appellant.

C. Andrew Fuller, District Attorney, for appellee.

We have reviewed the entire record and conclude that despite the difference in,the address as supplied by the appellant in his confession and the correct mailing address as supplied by the officers, there was sufficient evidence presented at trial to sustain a finding of guilt beyond a reasonable doubt by a rational trier of fact. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.


author: Birdsong, Presiding Judge.

text:
    A90A2115.
    JACKSON v. THE STATE.
    (401 SE2d 615)
   Birdsong, Presiding Judge.

James N. Jackson appeals his conviction of possession with intent to distribute cocaine. Held:

1. The State’s evidence showed that after receiving complaints about noise and disturbance, and an unsuccessful police request to disperse and calm down, police officers in Rome, Georgia, converged upon a group of about 20 persons gathered at. a housing project. Six persons attempted to run into the woods but were intercepted by two officers, and ran immediately to the second floor landing or porch of a nearby apartment building. Five of the persons ran up and stood against the apartment front wall, but one person (appellant) went to the outside corner of the porch at the iron railing. Officer Lively, who was in close pursuit, saw appellant go over the railing and stand at the edge of the landing. Officer Lively could not see appellant from about the waist down because of a carpet hung over the rail, but he did see appellant bend down and start messing with his ankle area; and he saw appellant’s arm, from about the elbow, go back in a throwing or tossing motion. After three demands, appellant was made to “freeze” up against the wall with the others. Officer Lively went downstairs and looked on the ground. Within 45 seconds after he saw appellant’s arm go down, he found a plastic bag containing smaller bags of white powder; the bag looked “fresh” and did not appear weathered. He found the bag directly below appellant, about three feet out from where appellant was standing on the landing above. Appellant was arrested for violation of the Georgia Controlled Substances Act and the other five were arrested for violation of the city noise ordinance. All persons were searched; $865 in cash was found in appellant’s sock.

We find this evidence, when viewed in a light most favorable to the verdict, to be sufficient to convince a rational trier of fact of appellant’s guilt of possession of cocaine with intent to distribute, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. The trial court did not abuse its discretion in refusing appellant’s “modest” request for a short recess to locate a witness. The witness was a court reporter who apparently had charge of the transcript of the preliminary hearing in the case, which appellant contends would show Officer Lively did not testify at the preliminary hearing that he saw appellant’s arm make a throwing or tossing movement as he stood at the edge of the landing.

Appellant’s attorney requested the recess during the State’s presentation of evidence, after the court had recessed at 10:20 to allow time for the State’s next witness to arrive. Defense counsel stated he had called the reporter at his office and expected the witness within ten minutes of the call. The trial court agreed to recess until 11:00 to allow both the State’s next witness and the defense witness to arrive. When court reconvened, appellant stated that the court reporter witness had been subpoenaed to bring his tapes and transcript of the preliminary hearing, but that the reporter was located in another town; the defense attorney would not know when the witness could be expected until he called the reporter’s officer to find out. The attorney had not attended the preliminary hearing and stated he did not know whether the transcripts would show the officer had not testified he saw appellant’s arm go back in a throwing or tossing movement. The trial court refused a recess.

The statements of defense counsel in the record as to this witness are very unclear in the record, and the trial court clearly was not satisfied either that the witness had been duly subpoenaed or that a transcript would show the officers had given inconsistent testimony. In these circumstances, the trial court’s refusal to grant a recess in the middle of the State’s case to wait for the arrival of a defense witness from another town was not an abuse of discretion (Grimes v. State, 168 Ga. App. 372 (308 SE2d 863)), particularly since the attorney did not even know what the witness would testify to or show. The attorney had ample opportunity to cross-examine the officer as to what he might have testified to elsewhere; moreover, it is not suggested that the attorney ever again, anytime at trial, made any attempt to get the witness. If the witness was available at all, if he was duly subpoenaed and refused to appear, or if the transcript would in fact have proved the officer’s testimony had been different at the preliminary hearing, appellant has failed utterly to show it on appeal. Appellant has shown neither error nor injury. Terry v. State, 190 Ga. App. 570, 571-572 (379 SE2d 604).

Decided January 31, 1991.

Clayton Hollingsworth, Jr., for appellant.

Stephen F. Lanier, District Attorney, Leigh E. Patterson, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


author: Beasley, Judge.

text:
    A90A2116.
    GREENE et al. v. WOODARD.
    (401 SE2d 617)
   Beasley, Judge.

The question is whether OCGA § 9-11-55 (a), a section of the Civil Practice Act regarding the opening of default judgments, governs an application for year’s support and caveat filed in probate court. We conclude that it does.

Virginia Martin Woodard died testate on April 16, 1990, leaving as her heirs at law her husband, who is the appellee, and four daughters by a prior marriage, who are the appellants.

On May 4, 1990, the husband applied for year’s support in the probate court. The daughters were served by mail with a copy of the application and a citation ordering them to show cause by “on or before 10:00 a.m. on the first Monday in June 4th 1990, next, why said application should not be granted.”

During the afternoon of June 4, the daughters sought to file a caveat to the application and a demand for jury trial. The deputy clerk of the probate court informed their counsel that the caveat was not timely filed. Later that day, counsel attempted to pay costs and open the default as a matter of right under OCGA § 9-11-55 (a). The deputy clerk refused to accept the check.

On June 18, the daughters filed a “notice of opening default” and submitted a check for costs. The clerk’s office allowed this notice to be filed and cashed the check. Later they filed a request for jury trial.

On July 9, the probate court judge denied the caveat and dismissed the “notice of opening default.” He ruled that the provisions of the CPA relating to the opening of default judgments under OCGA § 9-11-55 (a) do not apply to proceedings involving applications for year’s support, which are governed by Chapter 5 of OCGA Title 53.

Under OCGA § 9-11-1, the CPA applies to “all courts of record of this state, in all actions of a civil nature whether cognizable as cases at law or in equity, with the exceptions stated in Code Section 9-11-81.” Cochran v. McCollum, 233 Ga. 104 (210 SE2d 13) (1974). A probate court is a court of record. Id. Thus, the provisions of the CPA apply in probate court, except as provided in OCGA § 9-11-81.

OCGA § 9-11-81 states that the CPA “shall apply to all special statutory proceedings except to the extent that specific rules of practice or procedure in conflict herewith are expressly prescribed by law. . . -” See Kipp v. Rawson, 193 Ga. App. 532, 534 (1) (388 SE2d 409) (1989). At least certain proceedings in probate court are classifiable as “special statutory proceedings.” See Bragg v. Bragg, 225 Ga. 494 (170 SE2d 29) (1969); OCGA § 15-9-122. Thus, provisions of the CPA apply in probate court proceedings, unless there are special rules of practice or procedure which are conflicting and which have been expressly prescribed by law. See Howell v. Tidwell, 256 Ga. 647 (352 SE2d 372) (1987); Kipp v. Rawson, supra; Leathers v. Gilland, 141 Ga. App. 681, 683 (1, 2) (234 SE2d 336) (1977).

Rule 13 of the Uniform Rules for the Probate Courts is expressly applicable to default judgments and provides: “The party seeking entry of a default judgment in any action shall certify to the court the date and type of service effected as shown by court records and that there has been no defensive pleading from the party against whom the judgment is sought. This certificate shall be in writing and must be attached to the proposed default judgment when presented to the judge for signature.” 254 Ga. 811, 829 (1985). There is no conflict between this rule and OCGA § 9-11-55 (a).

Statutory provisions concerning probate courts are contained in Chapter 9 of OCGA Title 15. By its terms, Article 6 of Chapter 9, OCGA §§ 15-9-120 through 15-9-127, applies to jury trials and appeals. Article 6 was amended by § 6 of a 1986 Act generally applicable to probate courts in counties having a population of more than 150,000 persons. Ga. L. 1986, pp. 982, 985-987. However, under a 1988 amendment to OCGA § 15-9-120 (2), Article 6 applies to probate courts in counties having a population of more than 100,000 persons. OCGA § 15-9-122 states: “Unless provided to the contrary by Code Section 9-11-81, the general laws and rules of practice, pleading, procedure, and evidence which are applicable to the superior courts of this state shall be applicable to and govern civil cases in the probate courts.” Thus, OCGA § 15-9-122 complements OCGA § 9-11-81.

Decided January 31, 1991.

Schreeder, Wheeler & Flint, David Flint, Timothy C. Batten, for appellants.

Fred W. Minter, for appellee.

The statutory provisions concerning year’s support proceedings, which are contained in OCGA §§ 53-5-1 through 53-5-21, do not address default judgments.

Consequently, appellánts were entitled to open their default as a matter of right under OCGA § 9-11-55 (a) by filing defenses within 15 days of the day of default, upon payment of costs.

Judgment reversed.

Pope and Andrews, JJ., concur.

       It might be argued that the provisions of the CPA relating to the opening of default judgments concern “relief from judgments” and “the effect of judgments,” and, therefore, OCGA § 9-11-55, insofar as it governs the opening of default judgments, is expressly made applicable to probate court proceedings by OCGA § 9-11-81. This argument has not been advanced here.


text:
    A90A2117.
    WRIGHT v. THE STATE.
    (401 SE2d 619)
   Beasley, Judge.

Defendant appeals his conviction of aggravated child molestation. OCGA § 16-6-4 (c). He enumerates as error: permitting the victim, T. W., to testify without determining her competency; refusing to give a part of defendant’s requested instruction referencing suggestibility of a witness.

1. The crimes allegedly occurred in April and May 1988, and trial was held in March 1990. This all preceded April 19, 1989, the effective date of OCGA § 24-9-5 (b).

The assistant district attorney called as the State’s last witness the seven-year-old victim and began questioning her, expressly with a view to establishing her competency so that she might testify, see OCGA § 24-9-7, and in order to establish the admissibility of testimony by prior witnesses as to what the victim told them. See OCGA § 24-3-16; In the Interest of K. T. B., 192 Ga. App. 132 (384 SE2d 231) (1989). The trial court allowed the jury to be excluded, recognizing that it had to make the initial determination of whether the proposed witness was capable of testifying. In the course of this preliminary examination, the court commented that it thought everybody is competent to testify and it was up to the jury to determine believability. Defendant then interposed an objection that the victim’s “testimony” not be allowed to continue unless she could be established as competent. The court forecast that the State would be unable to obtain the witness’ testimony “anyway” because of the witness’ demonstrated unresponsiveness.

After discussion regarding the legal requirements, during which defendant acknowledged that the child was “available” presumably within the context of OCGA § 24-3-16, the State continued to examine the victim presumably about her understanding of what was true and what was false and about her ability to relate events when the jury returned. The victim concluded by answering that she would tell the truth and knew what the truth was.

The jury returned and the court permitted the child to be sworn. She testified that her father “blessed me with his privacy.” She was also cross-examined and related that another man, “Robert,” sometimes stayed where she lived and that she had not told the witnesses to whom she had first given an account of molestation by her father. On re-direct she answered that she knew her father’s name, Calvin, and that Robert was not her father. That concluded the State’s casein-chief.

Defendant contends that because there was in fact ho determination as to the victim’s competence, the case should be remanded for a ruling by the trial court in conformity with Hunnicutt v. State, 194 Ga. App. 714 (391 SE2d 790) (1990), and In the Interest of A. H., 192 Ga. App. 692, 693 (385 SE2d 776) (1989).

Although defendant conditionally objected during the preliminary examination of the child victim, no objection was made after the close of that examination or when the child was sworn and permitted to testify before the jury. Defendant lost the right to claim error when he failed to invoke a ruling after the further examination of victim. Timberlake v. State, 246 Ga. 488, 495 (3) (271 SE2d 792) (1980); Augusta Roofing &c. Works v. Clemmons, 97 Ga. App. 576, 577 (1) (103 SE2d 583) (1958); Hicks v. State, 175 Ga. App. 243 (1) (333 SE2d 113) (1985).

2. The trial court charged defendant’s request to charge regarding testimony of a child witness. It omitted the clause set out in italics.

“In receiving such evidence, you must exercise caution in weighing the credibility or believability of the child. You should consider her age, whether she is capable of having clear memory of the facts to which she testified or about which she told others, whether her story has been consistent in detail as she told it to others, whether the story has been suggested to her by others or through circumstances, and any other matters which you, in your collective experience, believe would bear on the reliability of her statements.”

Defendant asserts that the omission deprived him of the defense that other witnesses might have suggested various facts which the child victim allegedly related to witnesses during the course of interviews. Among the cases he cites is Booker u. State, 247 Ga. 74 (274 SE2d 334) (1981), which held that the trial court must present defendant’s affirmative defense to the jury, even without request.

Decided January 31, 1991.

Brimberry, Kaplan, Campbell & Donaldson, R. J. Bell, Jr., for appellant.

Britt R. Priddy, District Attorney, Johnnie M. Graham, Assistant District Attorney, for appellee.

That same case holds that such defense “need not be specifically charged if the case as a whole is fairly presented to the jury.” Id. at 74. Secondly, there is no requirement that a written request be given in the exact language requested. Mainor u. State, 259 Ga. 803, 804 (2) (387 SE2d 882) (1990). Applying both principles, there was no harmful error in omitting the requested reference to suggestibility, which was one of a series of examples of circumstances to be considered in deciding credibility. •

Judgment affirmed.

Pope and Andrews, JJ., concur.


text:
    A90A2143.
    ROBINSON v. THE STATE.
    (401 SE2d 621)
   Sognier, Chief Judge.

Charles D. Robinson was convicted on three counts of theft by deception arising out of certain business investments made by Henry Falconer and Willard Williams in a corporation controlled by Robinson. He appeals, contending the evidence was insufficient to support the verdict.

Construed to support the verdict, the trial transcript discloses that in 1984 appellant and several other individuals invested capital in Robinson-Rouse Corporation (“RRC”), a company formed to manufacture and market backhoes. RRC established a $65,000 line of credit with the Cairo Banking Company (the “bank”) secured by personal assets of the shareholders and a perfected security interest in RRC’s existing and future inventory. Although it was successful in producing and marketing its product, RRC experienced cash flow problems throughout 1985. Appellant, RRC’s president, pursued a variety of financing options, including applying for a Small Business Administration loan. Sometime during 1985, Henry Falconer, who was acquainted with appellant through their church, approached appellant about investing in RRC. Appellant proposed to Falconer that he purchase individual backhoe units in advance of manufacture and collect a dividend when the units were sold to buyers in the ordinary course of business. Falconer agreed to purchase six units, and RRC provided him with a written agreement providing that he would invest $25,020 in equipment to be manufactured at a specified future date and his investment would be repaid within 45 days. Falconer testified he received six manufacturer’s statements of origin (“MSO”) from RRC listing backhoes by serial number, but that pursuant to their agreement the MSOs did not name an owner. When the backhoes were sold, Falconer submitted his MSOs, which were executed in the name of the buyer, and he was repaid his investment plus a dividend. He elected to reinvest his capital in an additional six units under the same procedure, but RRC soon was placed in receivership by several investors and then filed for reorganization under Chapter 11 of the Bankruptcy Code. Falconer and the other investors were listed as unsecured creditors, RRC was sold, and as of the date of trial Falconer had not been repaid for his investment.

Willard Williams testified to substantially the same facts. He was an employee and stockholder of RRC as well as an investor. He also invested in six units and rolled over his initial investment twice, receiving dividends equivalent to a 420 percent annualized rate of return each time, before the bankruptcy intervened. Both he and Falconer testified that appellant did not discuss the financial health of RRC and they did not inquire, relying instead on their confidence in appellant. Neither was aware of the prior perfected security interest of the bank until just before the receivership began. Two other investors who testified for the defense stated that they were aware of RRC’s capitalization and cash flow difficulties, and one knew about the bank’s lien, but both invested nonetheless because they thought RRC ultimately would succeed. Appellant testified that he never concealed or misrepresented RRC’s financial condition, that the financial statements were available to investors but neither Falconer nor Williams inquired, and that he lost his entire investment in RRC as a result of the bankruptcy proceeding.

OCGA § 16-8-3 (a) provides that a person commits theft by deception “when he obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property.” Paragraph (b) specifies five ways in which an accused may be found to have “deceived” another, but appellant and the State agree the provisions applicable here are as follows: “A person deceives if he intentionally . . . [c] reates or confirms another’s impression of an existing fact or past event which is false and which the accused knows or believes to be false; ... [or sjells or otherwise transfers or encumbers property intentionally failing to disclose a substantial and valid known lien, adverse claim, or other legal impediment to the enjoyment of the property, whether such impediment is or is not a matter of official record.” OCGA § 16-8-3 (b) (1), (4).

We agree with appellant that the evidence adduced at trial was insufficient to support a conviction under either provision. First, with regard to the charges under both OCGA § 16-8-3 (b) (1) and (b) (4), the evidence unequivocally shows that the funds invested by Williams and Falconer were received by RRC, deposited into an RRC account, and used for the operation of the business and repayment of secured creditors. There is no evidence that appellant personally obtained or used the funds or that he received any benefit from any of the funds invested. Indeed, appellant testified without rebuttal that he lost his entire capital investment and that he and the other shareholders lost the collateral they had used to secure the line of credit. Accordingly, the State failed to prove that appellant “obtained property” of another as required by OCGA § 16-8-3 (a). Stewart v. State, 142 Ga. App. 493, 494-495 (2) (236 SE2d 278) (1977).

Second, a conviction under OCGA § 16-8-3 (b) (1) is authorized only when there is a deceitful misrepresentation regarding “an existing fact or past event,” and a false promise of future performance cannot be the basis for a conviction. Croy v. State, 133 Ga. App. 244, 246 (1) (211 SE2d 183) (1974). “ ‘ “The reason for the rule [regarding existing or past events] is that if the party to whom the representation was made . . . chose to rely upon the promise as to a future contingency, he is not deceived by deceitful means or artful practice . . . , but his loss results from his absolute confidence in the party making the promise.” ’ [Cit.]” (Emphasis omitted.) Id. at 247-248.

In the case at bar, Falconer and Williams, the persons named in the indictment as the victims of the alleged deception, expressly stated at trial that they did not rely on any statements or representations made by appellant concerning RRC’s financial status. They acknowledged making no inquiries, and stated that they relied on their knowledge of and confidence in appellant as the basis for their investment decisions. Thus, the only representation they testified that was made by appellant was the promise that RRC would repay their investments, with a dividend, in the future. While the breach of that promise may give rise to a civil action, it cannot be the basis for a conviction under OCGA § 16-8-3 (b) (1). Id.; Gordon v. State, 257 Ga. 335 (359 SE2d 634) (1987); Elliott v. State, 149 Ga. App. 579, 581-582 (1) (254 SE2d 900) (1979).

Consequently, we find the evidence did not meet the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and thus hold the trial court erred by denying appellant’s motion for directed verdict of acquittal. Stewart, supra at 495; Croy, supra at 248-249 (3).

Judgment reversed.

McMurray, P. J., and Carley, J., concur.

Decided January 31, 1991.

Smith, Perry & Epps, Ralph C. Smith, Jr., for appellant.

J. Brown Moseley, District Attorney, Donald E. Henderson, Assistant District Attorney, for appellee.


text:
    A90A2176.
    HALL v. THE STATE.
    (401 SE2d 623)
   Sognier, Chief Judge.

Jeffrey Byron Hall was convicted of aggravated assault and aggravated battery, and he appeals.

1. In six related enumerations appellant contends the trial court erred by admitting evidence of a similar transaction. The aggravated assault and aggravated battery charges arose out of an incident in which appellant, a passenger in an automobile driven by John Christie, leaned out of the car window with a glass Planters Peanut jar in his hand, aimed, and threw the jar at a nine-year-old girl riding her bicycle on the side of the road. The jar hit the victim’s shoulder, shattered, and severely cut her face. The car did not stop or return, and the victim testified she could hear someone in the car laughing as the car drove away. The similar transaction occurred approximately one month later. Appellant was again a passenger in Christie’s car when Christie, after questioning a thirteen-year-old boy, Clifford Harrell, about the skateboard Harrell was riding and asking to see the wheels, grabbed the skateboard and began trying to pull it through the driver’s window. Christie testified that he alone took the skateboard, but Harrell testified that although Christie initiated the theft, appellant joined in when it appeared that Christie would not be able to wrest the skateboard from Harrell. Although Christie testified he had complete control over the skateboard before he drove away, Harrell testified that the car began to move while he was still holding onto the skateboard, that he tried to turn the steering wheel to stop Christie and appellant from driving away with his skateboard, that he was being pulled along with the car, and that he only let go when the car sped away. Harrell observed appellant toss the skateboard into the back of the car.

“ ‘Evidence of similar crimes is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact. “However, before it is admissible, two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged.” [Cit.]’ [Cit.]” Carter v. State, 192 Ga. App. 726, 729 (8) (386 SE2d 389) (1989). As to the first condition, although Christie testified that he was the sole perpetrator of the theft of the skateboard, Harrell identified appellant positively as the person who, together with Christie, pulled the skateboard into the car. “[T]he standard of proof of reasonable doubt is not applicable to the proof that the defendant was the perpetrator of the independent crime. [Cit.]” Id. Harrell’s testimony was sufficient to support a finding by the jury that appellant was a perpetrator of the independent crime. See Milner v. State, 180 Ga. App. 97, 101 (2) (c) (348 SE2d 509) (1986).

Decided January 31, 1991.

Skelly & Buckland, Richard M. Skelly, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

As to the second condition, “ ‘[t]here is no requirement that a previous offense be absolutely identical to the one being prosecuted so as to make it admissible.’ [Cit.]” Singleton v. State, 194 Ga. App. 423, 424 (5) (390 SE2d 648) (1990). The evidence here demonstrates that the similar transaction, like the charged crime, involved violent behavior directed at a child, initiated from within an automobile in which appellant was the sole passenger and Christie the driver, and which callously endangered the young victim. The acts occurred within a month of each other, in the same general area, and roughly at the same time of day. We find that the trial court properly admitted into evidence the similar transaction. See generally id.

2. Since we have held that the evidence of a similar transaction was properly admitted at trial,-no harm could have resulted from the admission of a photograph of the victim’s scarred face during the pretrial hearing on appellant’s motion to exclude the similar transaction evidence, even assuming, arguendo, that admission of the photograph could have unduly prejudiced the trial judge in his ruling on the motion. “ ‘It is an old and sound rule that error to be reversible must be harmful. [Cit.]’ [Cits.]” Byrd v. State, 182 Ga. App. 284, 285 (1) (355 SE2d 773) (1987).

Judgment affirmed.

McMurray, P. J., and Carley, J., concur.


text:
    A90A2224.
    BACON v. LIBERTY MUTUAL INSURANCE COMPANY.
    (401 SE2d 625)
   Sognier, Chief Judge.

Tilman Bacon appeals from the trial court’s grant of judgment on the pleadings in favor of Liberty Mutual Insurance Company.

Appellant brought suit against appellee alleging that he had incurred $7,400 in medical bills as a result of a fall in a Bi-Lo Store. Appellant alleged that at the time of his fall, “Bi-Lo Store had an insurance policy with [Liberty Mutual] which provided medical pay coverage for people who sustained accidental injuries on the premises.” Based on that policy, appellant alleged he was entitled to recover the cost of his medical bills directly from the insurer. Appellee moved for judgment on the pleadings on the basis that appellant has no statutory right to bring a direct action against it. The insurance policy at issue is not in the record.

“The general rule is that because there is no privity of contract, a party may not bring a direct action against the liability insurer of the party who allegedly caused the damage unless there is an unsatisfied judgment against the insured or it is specifically permitted either by statute or a provision in the policy. [Cit.]” (Emphasis supplied.) Hartford Ins. Co. v. Henderson & Son, 258 Ga, 493, 494 (371 SE2d 401) (1988). However, “[t]he granting of a motion for judgment on the pleadings under [OCGA § 9-11-12 (c)] is proper only where there is a complete failure to state a cause of action or defense. ‘For the purposes of the motion, all well-pleaded material allegations of the opposing party’s pleading are to be taken as true, and all allegations of the moving party which have been denied are taken as false.’ [Cits.]” Pressley v. Maxwell, 242 Ga. 360 (249 SE2d 49) (1978).

Based solely on the procedural status of this appeal, we are constrained to agree with appellant that the trial court’s grant of judgment on the pleadings was improper because the trial court could not have determined from the complaint whether some unnamed and undetermined provision in the policy specifically permitted appellant, as a person who sustained an accidental injury on the premises of appellee’s insured, to bring this direct action against appellee. “[A] judgment on the pleadings cannot be granted unless the pleadings affirmatively show that no claim in fact exists. [Cit.] On the record before us, there is no such affirmative showing of the absence of a claim on which relief can be granted.” Jones v. Phillips, 183 Ga. App. 11, 12 (357 SE2d 853) (1987). Since there exists the remote possibility that appellant’s complaint states a viable cause of action, the judgment in favor of appellee must be reversed. Id.

Judgment reversed.

McMurray, P. J., and Carley, J., concur.

Decided January 31, 1991.

Dozier, Akin, Lee & Graham, L. Z. Dozier, Jr., for appellant.

Whitehurst & Frick, Elaine W. Whitehurst, Scott A. Wharton, for appellee.


author: Banke,- Presiding Judge.

text:
    A90A2229.
    FAIR v. THE STATE.
    (401 SE2d 626)
   Banke,- Presiding Judge.

The appellant brings this appeal from his convictions of armed robbery and theft by receiving stolen property.

On. February 2, 1989, at approximately 11:00 a.m., the appellant and a companion, James Brooks, entered a jewelry store and asked the salesclerk to show them some engagement rings. After being seated in the rear of the store, Brooks produced a gun and ordered the salesclerk to put jewelry into a bag which he handed to her for that purpose. Another salesclerk who was present testified that the appellant ordered her to lie on the floor at this time and stay still. Also, both clerks stated that as Brooks was removing jewelry from a showcase, the appellant coached him on which jewelry to take. The appellant, Brooks, and a third, unidentified individual thereafter attempted to flee the premises in a 1978 Pontiac Grand Prix which had been stolen earlier that morning; however, the automobile ran out of gas in the parking lot, forcing them to flee on foot. The appellant and Brooks were apprehended in a nearby parking deck.

A police detective testified that the steering column of the stolen vehicle had been broken so as to permit it to be driven without a key and that some object such as a hammer had been used to accomplish this. There was evidence that the appellant had a large hammer tucked in his pants at the time of his arrest, and that certain paint marks on the hammer matched the maroon paint on a metal collar surrounding the steering column. Also seized at the time of the arrests, were some jewelry and a gun which Brooks had tossed away as he was being pursued. Eight hours later, another gun was discovered in the parking space adjacent to the location where the appellant had been apprehended.

The appellant acknowledged at trial that he had ridden in the stolen car and that he had accompanied Brooks inside the store but maintained that he had not known either that the vehicle was stolen or that Brooks intended to rob the store and that he had not participated in the robbery. Held:

1. The appellant contends that the trial court erred in admitting the gun which was recovered from the parking deck some eight hours after his arrest because there was no evidence connecting it to the offenses for which he was on trial. Pretermitting that issue, we hold that in light of the overwhelming evidence of the appellant’s guilt, the admission of this evidence was harmless, i.e., it is highly probable it did not contribute to the verdict. See generally Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976).

Decided January 31, 1991.

2. The state introduced three photographs of the crime scene, two photographs of the stolen automobile, and one photograph taken of the appellant on the day of the crime. The appellant objected to the photographs depicting the crime scene and the stolen vehicle on the ground that they were duplicative and objected to the introduction of the photograph depicting him on the ground that his identity was not at issue in the case. Under the circumstances, the admission of the photographs over these objections cannot be considered reversible error. See generally Kettman v. State, 257 Ga. 603 (2) (362 SE2d 342) (1987); Hayles v. State, 180 Ga. App. 860 (2) (350 SE2d 793) (1986).

3. The appellant contends that he was entitled to a directed verdict of acquittal on the armed robbery charge because there was no evidence that he had been in possession of a gun during the commission of the robbery. However, whether the appellant personally wielded a gun or not, the evidence was clearly sufficient to enable a rational trier of fact to find him guilty of armed robbery beyond a reasonable doubt on the theory that he was a party to the offense. See generally OCGA § 16-2-20.

4. The appellant contends that he was entitled to a directed verdict of acquittal on the theft by receiving charge based on his testimony that he had not known the vehicle was stolen. A person commits theft by receiving stolen property when he “receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner.” OCGA § 16-8-7 (a). The automobile had both a shattered window and a broken steering column. The appellant was observed getting into the vehicle immediately after the robbery, and a hammer exhibiting paint marks similar in color to that of the broken steering column was found in his possession at the time of his arrest. From this evidence, a rational trier of fact could have determined beyond a reasonable doubt that he was guilty of theft by receiving stolen property. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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

Gary W. Struletz, for appellant.

Thomas J. Charron, District Attorney, for appellee.


author: Banke, Presiding Judge.

text:
    A90A2345.
    PARCELL v. THE STATE.
    (401 SE2d 628)
   Banke, Presiding Judge.

On appeal from his convictions of aggravated battery and aggravated assault, the appellant contends the trial court erred in admitting evidence of similar misconduct for which he was not on trial.

The appellant’s wife testified that after accusing her of provoking the interest of other men, the appellant beat and kicked her about the face, stomach, and back. Two days later, she advised her supervisor at work that her husband had beaten her and that because she feared further abuse she was leaving him and returning to her home in Texas. Later that day, local police accompanied her to her home at her request while she packed her belongings. She then drove to a friend’s home in another county and asked that friend to accompany her to Charlotte, Tennessee, where she and the appellant had recently been married and where she hoped to obtain an annulment. The following day, while en route to Tennessee, she sought medical treatment for severe abdominal pain. This led to her hospitalization for multiple contusions and for the removal of a ruptured spleen.

The victim testified that the appellant had subjected her to a previous beating in July of 1988, after accusing her of going out with another man. A neighbor testified that although she could not specify the date, she had witnessed the appellant beat and kick his wife at the location and during the general time period in question. The appellant made no contemporaneous objection to this testimony but moved the court at the conclusion of the state’s case to strike all similar act testimony or, in the alternative, to declare a mistrial. Both motions were denied. In its charge to the jury, the trial court gave proper limiting instructions with respect to the purpose for which similar act evidence could be considered. Held:

1. Pretermitting the issue of the timeliness of the appellant’s motions, we hold that the evidence in question was properly admitted for the purpose of showing bent of mind and course of conduct. “[T]he [rule allowing the admission of similar transaction evidence] is usually applied more liberally with ‘evidence of prior attempts by the accused to commit the same crime upon the victim of the offense for which he stands charged. . . .’ [Cits.] ‘Certain otherwise inexplicable assaults, such as occur in a series of incidents of wife or child abuse, particularly lend themselves to this exception to the “other offenses” rule on questions of both identity and motive. (Cits.)’ [Cit.]” Gresham v. State, 169 Ga. App. 525 (1) (314 SE2d 111) (1984). We reject the appellant’s contention that this evidence should have been excluded on the ground that the “notice of intent to present similar transaction evidence” filed by the state merely stated that the prior incident had occurred between May 1, 1988, and November 5, 1988, without giving an exact date. The witnesses themselves were unable to specify the exact date on which the prior incident had occurred, and the appellant has not shown that this lack of specificity misled or prejudiced him in any way. Accordingly, we hold that “[i]n revealing to appellant the information which it had, the prosecution complied with [Uniform Superior Court] Rule 31.3.” Eidson v. State, 182 Ga. App. 321 (2) (355 SE2d 691) (1987).

Decided January 31, 1991.

Steven E. Lister, for appellant.

Robert E. Keller, District Attorney, Tracy G. Gladden, Assistant District Attorney, for appellee.

2. One of the victim’s co-workers, who had observed the victim’s condition following the beating at issue in the present case, related her observations in this regard and further testified that she had observed bruises on the victim’s body on previous occasions, as well. Appellant’s counsel objected to this latter testimony and asked the trial court either to “find out what it is they’re going to say next” or to declare a mistrial on the ground that his character had been impermissibly placed in issue. The state’s attorney responded that he would not question the witness further on this subject, and the motion for mistrial was denied. Pretermitting whether the testimony in question was objectionable, we hold that in the context of the other evidence in the case, it is highly probable that it did not contribute, to the verdict. See generally Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976); Washington v. State, 194 Ga. App. 756 (4) (391 SE2d 718) (1990). Accordingly, this enumeration of error establishes no ground for reversal.

Judgment affirmed.

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


text:
    A90A2368.
    STRICKLAND v. STRICKLAND.
    (402 SE2d 66)
   Banke, Presiding Judge.

The appellee sued the appellant, who is her son, to recover for injuries she had allegedly sustained when she slipped and fell on a hardwood floor in the latter’s home. The case is before us pursuant to our grant of the appellant’s application for an interlocutory appeal from the denial of his motion for summary judgment.

Decided January 31, 1991.

Stevens & Gerson, Ervin H. Gerson, for appellant.

Walter W. Furlong, for appellee.

It is apparent without dispute from the deposition testimony of record that the appellee was quite familiar with the premises, having visited the appellant there approximately two weekends each month during the two years he had lived there, and that she was aware others had previously slipped on the floor. She had, in fact, told her son on multiple occasions “to cover the floor with something[, or] someone’s going to fall.” Held:

As a social guest in her son’s home, the appellee occupied the legal status of licensee. See Patterson v. Thomas, 118 Ga. App. 326 (163 SE2d 331) (1968). “The owner of the premises is liable to a licensee only for willful or wanton injury.” OCGA § 51-3-2 (b). “ ‘A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if, (a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to . . . licensees, and should expect that they will not discover or realize the danger, and (b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and (c) the licensees do not know or have reason to know of the condition and the risk involved.” Bragg v. Missroon, 186 Ga. App. 803, 804 (368.SE2d 564) (1988), citing Restatement of Torts 2d, § 342.

As it is evident in the present case that the appellee was fully aware of the existence of the alleged unsafe condition and fully appreciated the danger presented by it, we hold that the trial court erred in denying the appellant’s motion for summary judgment.

Judgment reversed.

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


author: Pope, Judge.

text:
    A90A2373.
    THE STATE v. MORRIS.
    (402 SE2d 288)
   Pope, Judge.

Appellee Pamilyn Kennedy Morris was charged with trafficking in cocaine after a search of the apartment where she resided uncovered illegal contraband. She moved to suppress the evidence of the search on the basis that the affidavit on which the search warrant was issued was deficient. The trial court granted her motion, and the State appeals. We reverse.

The affidavit in support of the warrant reads as follows: “During the week of December 18, 1988, this investigator [Detective C. L. Sasser] met with Confidential Reliable Informant #550 at a prearranged location. The CRI has proven reliable in the past by furnishing the Metro Drug Squad with information that has proven to be true and correct. At the prearranged location, the CRI stated that the CRI was familiar with a white female, known to the CRI as Pam Morris who resides at Spanish Villa Apartments, 10611 Abercorn Ext., Apt. 74, Chatham County, Georgia, who is selling Cocaine (powder) from said residence. The CRI and The CRI’s vehicle were searched and after finding no money or drugs, the CRI was given $100.00 of Official Chatham County Funds. . . . This investigator then followed the CRI to Spanish Villa Apartments where the CRI exited his vehicle and walked directly to and entered Apt. 74 at approximately 11:37 AM. At approximately 11:43 AM the CRI exited said residence, entered his vehicle and met this investigator at a prearranged location. At the prearranged location, the CRI handed me two clear corner plastic bags containing off-white powder that the CRI stated that the CRI purchased from Pam Morris for the consideration of $100.00 of Official Chatham County Funds. The CRI stated that Pam Morris told the CRI that the CRI could come back at anytime to purchase cocaine. The CRI and the CRTs vehicle were again searched and no money or drugs were found. A field test conducted by this investigator on the off-white powder indicated positive for Cocaine. The CRI described Pam Morris as being a white female, in her late twenties [or] early thirties, with brown hair. . . . Based on the above information, this investigator respectfully requests that a Search Warrant be issued for the residence of Spanish Village Apartments, 10611 Abercorn Ext., Apt. 74, Savannah, Chatham County, Georgia.”

On December 21, 1988, the Magistrate’s Court of Chatham County issued a search warrant for the premises described above based solely on the information in the affidavit. The warrant was executed on December 30, 1988. During the search of the apartment a small quantity of contraband was found in Morris’ purse and a larger quantity of contraband was found under the mattress of the bed on which she was sleeping when the officers entered the apartment to execute the warrant. Scales and other drug paraphernalia were also found in the apartment.

Following a hearing, the trial court granted Morris’ motion to suppress on the basis that the affidavit on which the search warrant was issued was deficient because the alleged CRI had never furnished information upon which arrests and convictions had been obtained, Detective Sasser having only averred that the CRI had furnished information in the past which had been true and correct.

In finding the affidavit in this case to be deficient, the trial court apparently relied on the test derived from the holdings in Aguilar v. Texas, 378 U. S. 108 (84 SC 1509, 12 LE2d 723) (1964) and Spinelli v. United States, 393 U. S. 410 (89 SC 584, 21 LE2d 637) (1969). However, that test has been abandoned in favor of the “totality of the circumstances standard” enunciated in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983). “ ‘In Illinois v. Gates, [supra] the United States Supreme Court held that the existence of probable cause for the issuance of a warrant is to be determined, not according to the “two-pronged test” established in Aguilar v. Texas, [supra] and Spinelli v. United States, [supra], but rather in the light of the “totality of the circumstances” made known to the magistrate. Subsequently in Massachusetts v. Upton, [466] U. S. [727] (104 SC 2085, 80 LE2d 721) (1984), the Supreme Court reaffirmed its holding in Gates, and emphasized the rejection of an “after-the-fact, de novo (probable cause) scrutiny” by reviewing courts. Instead, the Court held that reviewing courts must decide only whether the information, viewed as a whole, provided a substantial basis for the magistrate’s finding of probable cause. “ ‘A grudging or negative attitude by reviewing courts toward warrants,’ (cit.), is inconsistent both with the desire to encourage use of the warrant process by police officers and with the recognition that once a warrant has been obtained, intrusion upon interests protected by the Fourth Amendment is less severe than otherwise may be the case. (Cit.) A deferential standard of review is appropriate to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant.” [Id. at 733.] Mincey v. State, 180 Ga. App. 898, 899-900 (350 SE2d 852) (1986).

“ ‘The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “varacity” [sic] and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of the reviewing court is simply to insure that the magistrate had a “substantial basis for . . . conclud(ing)” that probable cause existed.’ [Illinois v. Gates, supra at 238].” State v. Fultz, 171 Ga. App. 886, 888 (321 SE2d 381) (1984).

“Utilizing this standard of review, which was adopted by the Georgia Supreme Court in State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984), we find that the information, viewed as a whole, provided a substantial basis for the magistrate’s finding of probable cause to believe that contraband was located on the premises.” (Citation and punctuation omitted.) Mincey, supra at 900.

Moreover, even assuming that the affidavit was insufficient to establish probable cause under the totality of the circumstances test enunciated in Illinois v. Gates, supra, “[t]here is the remaining issue of whether the exclusionary rule would or would not be an appropriate sanction to vindicate any purported violation of [Morris’] Fourth Amendment rights. Because the exclusionary rule is designed to deter police misconduct rather than to punish the errors of issuing magistrates, it has been modified so as not to bar the admission of evidence seized in reasonable, good-faith reliance by an officer on a search warrant that is subsequently held to be defective. United States v. Leon, 468 U. S. 897, 905 (I) (104 SC 3405, 82 LE2d 677) (1984).” (Punctuation and indention omitted.) Debey v. State, 192 Ga. App. 512, 513 (385 SE2d 694) (1989). Applying the appropriate principles to the facts of this case, see State v. Evans, 192 Ga. App. 216, 222 (384 SE2d 404) (1989), “we conclude that no suasive evidence of record exists that the search warrant was so facially deficient that the executing officers could not reasonably presume it to be valid; that the judge who issued the warrant was other than neutral and detached; that the affidavit was so lacking in indicia of probable cause as to render an official belief in its existence entirely unreasonable; or, that the judge issuing this warrant was misled by information in the affidavit that the affiant knew or should have known, except for a reckless disregard on his part, to be false.

Decided January 31, 1991.

Spencer Lawton, Jr., District Attorney, John T. Garcia, Assistant District Attorney, for appellant.

N. Harvey Weitz, for appellee.

“The evidence recorded in the suppression hearing regarding the contents of the affidavit shows, as a matter of law, that it was not so lacking in its indicia of probable cause as to render the judge’s belief in the existence of probable cause entirely unreasonable. Accordingly, assuming arguendo that probable cause had not in fact existed for the issuance of the search warrant, we are satisfied under the totality of the circumstances that the officers executing the search warrant acted in reasonable good faith reliance thereon within the meaning of United States v. Leon, 468 U. S. 897 (104 SC 3405, 81 LE2d 677) [(1984)].” Williams v. State, 193 Ga. App. 677, 681 (388 SE2d 893) (1989). Consequently, for this reason also the trial court erred in granting the motion to suppress. See, e.g., Debey, supra; Adams v. State, 191 Ga. App. 916 (383 SE2d 378) (1989).

Judgment reversed.

Beasley and Andrews, JJ., concur.


text:
    A90A2382.
    UNIFLEX CORPORATION v. SAXON.
    (402 SE2d 67)
   Pope, Judge.

Plaintiff Kenneth Saxon, doing business as K & L Construction Company, entered into a written subcontract for earthwork with defendant Uniflex Corporation, the general contractor for a construction project. Defendant made certain progress payments to plaintiff but the parties disagreed concerning the final payment due plaintiff and defendant failed to pay the final amount demanded by plaintiff. Plaintiff filed this action and, pursuant to a jury verdict, was awarded judgment in the amount of $73,129.98 plus pre-judgment interest of $30,714.60. Defendant appeals.

1. Defendant was not entitled to a directed verdict for plaintiff’s failure to prove damages. Although the written payment requests submitted by plaintiff were referred to as “estimates,” defendant’s own witness admitted the requests were considered invoices for completed work. Moreover, plaintiff presented sufficient evidence describing and identifying the work represented by the unpaid payment requests. Thus, the evidence supported plaintiff’s claim for damages.

2. The trial court did not err in granting plaintiff’s motion in limine regarding evidence of money the defendant allegedly spent on repairs to earthwork completed and billed by plaintiff. “[Inadequate workmanship] may constitute a breach of contract by the plaintiff, but the remedy for the breach is not nonpayment; it is recoupment . . . or what is now a counterclaim under [OCGA § 9-11-13].” Sasser & Co. v. Griffin, 133 Ga. App. 83, 87 (2b) (210 SE2d 34) (1974). Defendant did not raise a counterclaim for recoupment and thus was not entitled to present evidence of money spent on repairs as a defense to plaintiff’s claim for payment under the contract.

3. Defendant did raise the defense of accord and satisfaction and presented evidence it forwarded a check in the amount of $21,940.95 in settlement of plaintiff’s claim to an entity in Florida which portrayed itself as plaintiff’s agent for collecting the claim. Plaintiff denied authorizing the Floridá firm to negotiate the claim and denied receiving any of the proceeds of the check. Defendant argues the trial court erred in excluding testimony that an attorney acting on behalf of plaintiff told defendant’s attorney that plaintiff admitted he did retain the Florida firm to collect the money defendant owed him. First, we note the testimony was, in fact, admitted with instructions to the jury that it should be considered solely for impeachment of plaintiff’s attorney’s testimony that he did not make such a statement.

The court did not err in excluding the testimony as direct evidence that the Florida firm was plaintiff’s agent. Evidence was presented that the attorney who allegedly made the admission concerning the Florida firm was plaintiff’s agent. Thus, defendant argues the attorney’s admissions would be admissible against plaintiff pursuant to OCGA § 24-3-33. However, this Code section must be construed together with OCGA § 10-6-64, which states an agent’s declarations shall not be admissible against the principal unless they were part of the res gestae of the transaction. Southern R. Co. v. Allen, 118 Ga. App. 645 (1) (165 SE2d 194) (1968). In this case, the attorney’s statements were not part of the transaction at issue in the case but were hearsay as to plaintiff and were not admissible against him as direct evidence. The trial court did not err in excluding a letter written to plaintiff’s attorney confirming the admission he allegedly made to defendant’s attorney because the letter was self-serving; in any event, evidence of the contents of the letter was presented by oral testimony.

Decided January 31, 1991.

Marvin W. McGahee, for appellant.

Hudson, Galloway & Vaughan, William T. Hudson, J. Scott Vaughan, for appellee.

4. The trial court adequately charged the jury on the theory of agency. It did not err in refusing to charge that the admissions of an agent are admissible against the principal for the reasons set forth in Division 3, above. Neither did the trial court err in refusing to charge that a principal is estopped from denying agency when he places another in a position of apparent authority which would justify a person of ordinary prudence to assume the other has authority to act as the principal’s agent. The only evidence of the Florida firm’s agency was testimony concerning the representations of the purported agent. “Agency can not be proved by the declarations of the alleged agent.” Davis v. Metro. Life Ins. Co., 196 Ga. 304, 321 (3) (26 SE2d 618) (1943). Accord Carmichael v. Silvers, 90 Ga. App. 804, 819 (1) 84 SE2d 668) (1954).

5. The trial court did not err in awarding pre-judgment interest. Even though defendant contested some of the charges claimed by plaintiff, the jury obviously found the work was completed and payment was due. Pre-judgment interest may be awarded where, as here, evidence shows work was completed under the contract and payment was demanded prior to trial and the claimant prayed for pre-judgment interest. See Gregory v. Townsend Roofing Co., 163 Ga. App. 836 (2) (296 SE2d 154) (1982).

Judgment affirmed.

Beasley and Andrews, JJ., concur.


text:
    A90A1808.
    JACKSON v. THE STATE.
    (402 SE2d 279)
   Banke, Presiding Judge.

The appellant, James Jackson, Sr., was convicted of child molestation. See OCGA § 16-6-4. He brings this appeal from the denial of his motion for new trial.

The victim, who had been six years old when the events in question took place and was seven at the time of trial, testified that the appellant had repeatedly placed his fingers in her vagina, warning her that if she told anyone he would “take me away.” She indicated that she interpreted this warning as a threat to take her away from her natural mother. The child testified that she had also been fondled by her younger brother and by her Uncle Simon (Yearwood). The brother, who was a year younger than the victim, testified that he had touched his sister on her “private” and stated that he had seen his father, the appellant, fondle her, also. The uncle, who is the brother of the child’s mother and was 22 years of age at the time of trial, also admitted having fondled the victim. Over the appellant’s objection, he further testified that the appellant had sodomized him on several occasions approximately five years previously and had threatened to “whip his ass” if he told anyone.

During the trial, the appellant called several witnesses to offer testimony that he was a good father. One such witness was asked on cross-examination whether she was aware that the appellant was behind in this child-support payments; and, over the appellant’s objection, she replied that she was aware that he had been behind in his child support in “previous times.” Testifying in his own behalf, the appellant denied having engaged in any sexual conduct with either Yearwood or his daughter. Held:

1. The appellant contends that the trial court erred in allowing the state to introduce evidence concerning his alleged sexual abuse of Simon Yearwood because (1) the state’s notice of intent to present similar transaction evidence was not filed within ten days of the trial as required by Uniform Superior Court Rule 31.1, (2) the conduct in question was not sufficiently similar to the offense charged to be admissible, and (3) too much time had elapsed between the two transactions.

Uniform Superior Court Rule 31.1 requires the state to provide notice of its intention to present similar transaction evidence “at least ten days before trial unless the time is shortened or lengthened by the judge.” (Emphasis supplied.) The notice in this case was both filed and served nine days prior to trial; however, it is apparent from the record both that the appellant’s counsel had some prior knowledge of the allegations and that he had interviewed Yearwood prior to trial. Under such circumstances, the trial court clearly did not abuse its discretion in shortening the notice period by a mere day. See Ware v. State, 191 Ga. App. 538 (382 SE2d 383) (1989); Dailey v. State, 197 Ga. App. 501 (398 SE2d 812) (1990).

Nor did the trial court abuse its discretion in determining that the prior conduct with Yearwood was sufficiently similar to the offense charged to be admissible as similar transaction evidence. The rule allowing similar transaction evidence “has been most liberally extended in the area of sexual offenses,” Johnson v. State, 242 Ga. 649, 652-653 (250 SE2d 394) (1978); and this court has held that the “sexual molestation of young children, regardless of sex or type of act, is sufficient similarity to make the evidence admissible.” Phelps v. State, 158 Ga. App. 219, 220 (279 SE2d 513) (1981); Smith v. State, 193 Ga. App. 196, 198 (5) (387 SE2d 571) (1989). See also Brown v. State, 173 Ga. App. 640, 641 (3) (327 SE2d 515) (1985) (evidence of prior forcible rape committed against victim over the age of sexual consent held admissible in statutory rape case).

While the prior sexual misconduct at issue in the present case was obviously dissimilar to the offense for which the appellant was on trial in that it involved a 17-year-old boy rather than a six-year-old girl, it was evident that the boy was of below-normal intelligence, a condition which would undoubtedly have tended to make him more childlike and helpless than might otherwise have been the case. Based on the foregoing authorities, the trial court was authorized under these circumstances to admit the boy’s testimony as evidence of bent of mind and course of conduct. See generally Davis v. State, 249 Ga. 309, 311 (1) (290 SE2d 273) (1982). The five-year lapse of time between the two offenses clearly did not preclude the admission of this evidence. See Cox v. State, 173 Ga. App. 422 (1) (326 SE2d 796) (1985) (evidence of appellant’s prior molestation of his two older daughters some 17 to 22 years previously, when they were adolescents, held admissible in prosecution for molesting their 13-year-old sister); Cooper v. State, 173 Ga. App. 254, 255 (325 SE2d 877) (1985) (evidence that defendant had committed incest with his daughters some 19 years previously held admissible in prosecution for committing the same offense with two of his granddaughters). See also Landers v. State, 194 Ga. App. 329 (390 SE2d 302) (1990).

2. The trial court did not err in allowing the state to bring to the jury’s attention the fact that the appellant was or had been behind in his child-support payments, as the appellant had opened the door to such evidence by attempting to establish that he had a reputation for being a responsible and caring father. See generally OCGA § 24-9-20 (b).

Judgment affirmed.

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

Decided January 16, 1991

Rehearing denied February 1, 1991

Brian D. Lockerbie, for appellant.

William G. Hamrick, Jr., District Attorney, Peter J. Skandalakis, Assistant District Attorney, for appellee.


text:
    A90A1613.
    ARNOLD v. THE STATE.
    (402 SE2d 69)
   Cooper, Judge.

Appellant was convicted by a jury of armed robbery and brings this appeal from the denial of his motion for new trial.

The State’s evidence showed that the victim was working alone at a convenience store one night when she noticed three persons in a yellow car parked by the building. One of the men got out of the back seat of the car and went to the telephone, and several minutes later a man came into the store, grabbed the victim from behind, put a gun to her side and forced her to give the man all of her money from the register. After the man left, the victim called the police. When the police arrived, the victim described her assailant as a black male, approximately six feet tall, wearing dark sunglasses, a black coat, a navy or black shirt and tan pants. The victim assisted the investigating officer in making a composite drawing of the suspect. The day after the robbery, the victim was shown a photographic lineup of six black males and identified appellant as the man who robbed her. Appellant and two other men were arrested and charged with armed robbery, but prior to appellant’s trial the two men pled guilty to the charge and became State witnesses. At trial, the victim identified appellant as the man who robbed her, and both of the co-indictees testified that appellant went into the store with a gun. One of the men testified that when appellant came out of the store he said “I got the money.”

1. Appellant contends that the photographic lineup was impermissibly suggestive. Appellant argues that his photograph was the only one of someone wearing a black coat and a black or dark blue shirt. “Based on the evidence we find nothing which tainted the pretrial identification by photo spread, and nothing in that identification which would taint [the victim’s] in-court identification of appellant. Whether a subsequent in-court identification is tainted depends on all the circumstances of the case. Conviction based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. [Cits.]” Selbo v. State, 186 Ga. App. 779, 781 (368 SE2d 548) (1988). Furthermore, “[e]ven if a pretrial identification is tainted, an in-court identification is not constitutionally inadmissible if it does not depend upon the prior identification but has an independent origin. [Cit.]” Id. The victim observed appellant at the scene, gave a detailed description to the police immediately following the robbery and assisted in making a composite drawing. Thus, the victim’s identification had an independent origin other than the photo identification. Therefore, we find no error with the trial court’s admission of the photographic identification.

Decided February 1, 1991.

Bates, Kelehear & Starr, Harlan M. Starr, for appellant.

Jack O. Partain III, District Attorney, Michael R. McCarthy, Assistant District Attorney, for appellee.

2. Appellant also contends that the evidence was insufficient to support the verdict. We disagree. The evidence was sufficient to authorize a rational trier of fact to find appellant guilty of armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.


text:
    A90A1733.
    STAFFORD et al. v. STAFFORD.
    (402 SE2d 71)
   Cooper, Judge.

This case involves a claim by appellants, the ex-wife and daughter of decedent, John A. Stafford, against appellee, the brother of the decedent, as executor of the decedent’s estate. Appellants are seeking to recover from the estate the payments that they personally made for the decedent’s funeral expenses and certain medical expenses of the decedent prior to his death. Appellee paid the disputed sums into the probate court and moved the court to rule on the validity of the claims. A hearing, which was not transcribed, was held wherein a judgment was rendered against both appellants, and the moneys were ordered to be paid to appellee, as executor. Appellants appeal the judgment on the grounds that the court erred in denying reimbursement from the estate to the appellant daughter and/or to the appellant ex-wife for the sums they expended.

The facts as found by the trial court and as evidenced by the record are as follows: The decedent died on April 8, 1989, and on May 3, 1989, the appellant ex-wife (who was divorced from decedent in the early 1970s) was named the administratrix of the estate. In early June 1989, a will of the decedent, which named appellee as the executor, was filed for probate, and the proper notice was served on the decedent’s heirs at law. On June 26, 1989, appellee was named the executor and appellant ex-wife was discharged as administratrix. A notice to all debtors and creditors directing them to contact appellee as executor began publication on July 11, 1989, and appellants filed a claim against the estate on September 12, 1989, requesting reimbursement for funeral expenses paid jointly by appellants on or after late August 1989. Subsequently, appellant ex-wife submitted evidence of medical bills of decedent which she paid in September 1989. The evidence of these medical bills, however, is not in the official record before us and therefore will not be considered.

The trial court concluded that appellants had made voluntary and gratuitous payments which deprived the executor of the statutory duty to properly administer the estate, investigate claims or compromise such claims pursuant to OCGA § 53-7-93. The payments made by appellants were made well after appellant ex-wife was discharged from her duties as administratrix and well after the appointment of appellee as executor. The creditors were on notice of the appointment of the executor and the proper procedures for filing claims. Further, the court found that appellants acknowledged that they did not advise the executor or the attorney for the estate that they were going to pay the disputed bills. There is no evidence in the record as to the reasons appellants proceeded to pay the bills without contacting the executor or without referring the creditors to the executor or to the notice instructing them on the procedures for obtaining payment from the estate. Appellants argue in their brief that they made the payments at a time when the estate had no cash, and they could not ask the creditors to wait until the decedent’s assets were liquidated. However, the trial court made no findings as a result of the hearing on any such reasons advanced by appellants.

The case cited by appellants to support their claim for reimbursement, King v. Dalton, 85 Ga. App. 641 (69 SE2d 907) (1952), is distinguishable in that the contested payments therein were made by the decedent’s son at a time that no administrator had been appointed. Thus, the son, exercising his right to order his mother’s funeral was entitled to be repaid by the estate once an administrator was appointed. In the instant case, all parties were aware that the executor had been duly appointed, and the record contains no explanation for the failure to submit the bills or refer the creditors to the executor. It has been repeatedly held that in the analogous situation where children or close relatives make a claim against an estate for the value of personal services rendered to the decedent, “ ‘where one person renders a service valuable to another which is accepted by the latter, he does so either under an express or implied promise of the recipient to such service to pay for the service, or the service is rendered gratuitously. Among members of a family group the services of one member in caring for another member are presumed to have been gratuitously rendered. This presumption, however, may be rebutted by proof. . . .’ [Cit.]” Womble v. Womble, 228 Ga. 10, 12-13 (183 SE2d 747) (1971). We find no proof or evidence that the payments made by appellants were not gratuitous. “ ‘ “It is well settled that, absent a transcript, we are bound to assume that the trial judge’s findings are supported by competent evidence.” [Cit.]’ ” Mack v. Third Bedford-Pines Apts., Ltd., 193 Ga. App. 838, 839 (2) (389 SE2d 404) (1989). Accepting the trial court’s findings and discovering no evidence to contradict the conclusion that the payments by appellants were gratuitous, we find no error in the ruling of the trial court. Appellants’ claim that they are entitled to payment under the theory of unjust enrichment is without merit because the payments at issue did not enhance the value of the estate. See Lovin v. Poss, 240 Ga. .848 (3) (242 SE2d 609) (1978); Evans v. Evans, 237 Ga. 549, 553 (228 SE2d 857) (1976).

Decided February 1, 1991.

Karen D. Barr, for appellants.

Donald B. Lowe III, for appellee.

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.


text:
    A90A1762.
    ANSLEY v. THE STATE.
    (402 SE2d 73)
   Cooper, Judge.

Appellant was convicted by a jury of theft by taking and of being a party to the crime of theft by taking. While appellant was an employee of Macy’s Department Store, she was charged with entering fraudulent credit returns involving herself and certain other co-conspirators. At trial, the State presented as a witness the security officer who investigated appellant and observed the transactions. The guard testified that he observed appellant at her job for one evening from a hidden observation room and during such time observed several transactions with various customers. The guard made notes on each transaction, and testified about certain transactions which appeared to be suspicious. At trial, the guard testified extensively on a particular transaction involving a fraudulent exchange of merchandise and the issuance of a fraudulent credit refund. The guard observed appellant exchange four skirts for two identical skirts that were returned and observed appellant take a dress from the sales floor and treat it as a return, thus preparing a fraudulent credit slip that a co-conspirator attempted to cash. After these observations, the guard went down to the floor, retrieved the audit tape and copies of certain receipts from appellant’s cash register and confronted appellant. The audit tape, which is a record of every transaction performed on that cash register during the day, and the receipts were admitted into evidence and were with the jury during their deliberations. The guard had written on the audit tape notations about the various transactions represented thereon, such as the time of the transaction and identifying characteristics of the persons involved. On the last two entries on the tape, the guard had written a brief description of the transaction involving the fraudulent exchange of merchandise and fraudulent credit refund that he testified about at trial. The guard noted next to the entries the word “fraudulent.” Appellant’s counsel objected to the admission of the tape at trial on the basis that it was presumably being admitted as a business record and that the requisite foundation for such admission had not been laid. The objection was overruled, and appellant raises the admission of the audit tape as her sole enumeration of error on appeal.

Appellant argues that the admission of the audit tape was erroneous because it was a business record admitted without proper foundation and because the notations contained on the tape were prejudicial by allowing the oral testimony of the guard to be overemphasized to the jury. The cases cited by appellant in support of her argument are distinguishable in that they involved written evidence by a person not called as a witness at trial, written evidence by a policeman that could be construed as a confession when the defendant denied guilt at trial and a separate document that served as a worksheet for an insurance application. See Royals v. State, 208 Ga. 78 (2) (65 SE2d 158) (1951); Spence v. State, 96 Ga. App. 19 (3) (99 SE2d 309) (1957); Nationwide &c. Ins. Co. v. Rhee, 160 Ga. App. 468 (10) (287 SE2d 257) (1981). Even assuming that the tape was a business record and was erroneously admitted without proper foundation, and assuming that appellant did not waive her right to object to the notations on appeal because that specific ground for objection was not raised at trial, we determine, after a review of the record, that any error committed was harmless. The guard’s testimony at trial described the suspicious transactions that appeared on the tape and detailed the events that occurred as well as the guard’s conclusions about such events. Therefore, since other evidence at trial presented the same information as found on the tape, the tape was merely cumulative evidence, and any error in its admission was harmless. See Flowers v. State, 181 Ga. App. 572 (2) (353 SE2d 69) (1987); Howell v. State, 179 Ga. App. 632 (2) (347 SE2d 358) (1986). Further, appellant’s counsel fully examined the tape at trial and even questioned the guard about the notations thereon during cross-examination.

Decided February 1, 1991.

Manning & Leipold, Calvin A. Leipold, Jr., for appellant.

Ralph T. Bowden, Jr., Solicitor, Neal R. Bevans, Ann M. Elmore, W. Cliff Howard, Assistant Solicitors, for appellee.

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.


text:
    A90A1801, A90A1802.
    KACHWALLA v. BYRNE (two cases).
    (402 SE2d 74)
   Cooper, Judge.

In Case No. A90A1801, appellant appeals the trial court’s orders granting appellee’s motion to set aside the judgment and dismissing the case pursuant to OCGA § 9-2-60 (b). In Case No. A90A1802, appellant appeals the trial court’s order denying his motion to reconsider the order setting aside the judgment.

The issue raised by both appeals is whether the trial court erred in holding that there was a five-year period without a written order in this case as set forth in OCGA § 9-2-60 (b). That statute provides that “[a]ny action or other proceeding filed in any of the courts of this state in which no written order is taken for a period of five years shall automatically stand dismissed with costs to be taxed against the party plaintiff.” The record reveals that appellant filed the instant lawsuit on March 8, 1979; that on June 1, 1981, the court’s order denying appellee’s motion for summary judgment was filed; and on June 4, 1981, the trial court issued a certificate for immediate review of the order denying the summary judgment. On July 2, 1981, this court denied appellee’s application for an interlocutory appeal by an order which was not filed in the records of the trial court. No further orders were reflected in the record until July 2, 1986, when the trial court issued an order for a pre-trial conference. The case went to trial before the court, and a judgment for appellant was entered on April 21, 1988. Appellee filed a motion to set aside the judgment on April 14, 1989, and the orders granting the motion to set aside and dismissing the case were entered on September 19, 1989. In setting aside the judgment, the trial court found that no written order had been entered in the case from June 4, 1981 until July 2, 1986, and therefore the five-year rule mandated a dismissal of the case and a setting aside of the judgment.

Appellant argues that the July 2, 1981, order of this court denying an interlocutory appeal was the order from which the five-year period began. Appellant goes on to contend that the five-year period would then begin on July 3, 1981, and expire at midnight on July 2, 1986. According to appellant, since the trial court’s order establishing the pre-trial conference was entered on July 2, 1986, the five-year rule does not work to automatically dismiss the case. We disagree with appellant. “ ‘In order to satisfy the statute, an order must be written, signed by the trial judge, and properly entered in the records of the trial court by filing it with the clerk. . . . (T)he statute’s provisions are mandatory and dismissal is automatic and by operation of law. The statute places upon a plaintiff who wishes to avoid an automatic dismissal of his case by operation of law a duty to obtain a written order of continuance or other written order at some time during a five-year period and to make sure the same is entered in the record. Neither the trial court nor this court has the discretion to reinstate [the] case.’ [Cits.]” Bainbridge & Assoc., Architects v. Johnson, 183 Ga. App. 784 (360 SE2d 273) (1987). The appellate court order issued in this case was not an order signed by the trial court and was not entered in the records of the trial court. The last order satisfying the statute was entered on June 4, 1981. See Scott v. DeKalb County Hosp. Auth., 168 Ga. App. 548 (1) (309 SE2d 635) (1983); Milam v. Mojonnier Bros. Co., 135 Ga. App. 208, 211 (217 SE2d 355) (1975). The order for the pre-trial conference was entered beyond the five-year period, and the court was not in error to dismiss the case. “[A]fter automatic dismissal as required by the statute, the case is no longer pending, and any further action, even trial and verdict, is a mere nullity. The question is not waiver but jurisdiction.” Salter v. Chatham County, 136 Ga. App. 914 (2) (222 SE2d 638) (1975). See also Earp v. Kranats, 184 Ga. App. 316, 317 (361 SE2d 217) (1987). Accordingly, the trial court was not in error to set aside the judgment or to deny the motion for reconsideration.

Decided February 1, 1991.

J. Frank Bradford, for appellant.

M. Fred Schuster, Alan I. Seitman, for appellee.

Judgments affirmed.

Banke, P. J., and Birdsong, P. J., concur.