author: Deen, Presiding Judge.

text:
    77025.
    MARTIN v. THE STATE. MERKA v. THE STATE. ALLEN v. THE STATE.
    77026.
    77027.
    (376 SE2d 888)
   Deen, Presiding Judge.

Some time near the beginning of 1983 there developed in DeKalb County an undertaking whereby, for a fee, persons cited for various traffic offenses (and, in particular, those cited for driving under the influence of alcohol) were enabled, either directly or through an intermediary, to contact certain attorneys who, likewise either directly or through an intermediary, would arrange for the client’s file to be surreptitiously removed from the Solicitor’s Office, so that the driver’s license would be immediately returned to the client and his case would never appear on the docket. When facts concerning this activity began to come to light and the “fixed” cases to be reconstructed, it became evident that there was a sizable group associated in the enterprise in one role or another, and that it was engaged in a wide-ranging pattern of what can only be labeled “racketeering activity” relative to “ticket-fixing.”

After an eight-month police investigation and a four-month Special Grand Jury investigation, Dale T. Martin, Steve A. Merka, and Charles Marion Allen, appellants in these three companion cases, were indicted for violation of the Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act (two counts each) and stealing public records (75 counts altogether). Additionally, Martin and Merka were indicted for first-degree forgery (one count each) and criminal attempt to steal public records (one count each). Also indicted were four others, one of whom pled guilty and three of whom were tried separately. The three appellants here were tried jointly by a DeKalb County jury, which found Martin guilty on all counts with which he was charged except one count of stealing public records; Merka was found guilty on all counts with which he was charged except two counts of stealing public records; and Allen was found guilty on all counts with which he was charged, except four counts which were dropped when a witness refused to testify. Martin and Merka received twenty-year sentences; Allen received ten years; all were held jointly liable for restitution in the amount of $137,092.34. Additionally, Martin and Merka were disbarred from the practice of law. After denial of their motions for new trial, the three filed appeals with this court. Held:

1. Before detailed consideration is given to each of appellants’ enumerations of error, a few words may be in order regarding the factors common to the individual incidents presented in evidence at trial. The common factors were (1) each offender had contacted either Martin, Merka, or Allen to handle his or her DUI or traffic offense, and (2) the case file of each offender who testified at trial had been removed from the Solicitor’s Office. Additionally, each offender had paid a sizable fee for this service, and several testified that their attorneys had alluded to the fact that the fee would be “split” with someone other than the person (or attorney) whom the offender had actually paid.

It is also important to note that Merka was a former employee of the Solicitor’s Office and had retained such cordial relations with his former colleagues that he had literally “the run of the place.” Moreover, it was through this former association that Merka was in a position to know not only how to remove court records physically filed in the Solicitor’s Office (whether with his own hands or by the presumably well-greased palms of others), but also how to obtain those records originally filed in a satellite tribunal, through the expedient of having the case “bound over” and physically transferred to the Solicitor’s Office, thereby creating numerous opportunities for a deft hand to extract the desired files from the group.

2. Appellants were convicted of two substantive violations of the Georgia RICO Act, OCGA § 16-14-4 (a) (b). OCGA § 16-14-4 (b) proscribes the conducting or participating, directly or indirectly, in the aifairs of an enterprise through a pattern of racketeering activity. OCGA § 16-14-4 (a) proscribes the acquiring or maintaining, directly or indirectly, of any interest in or control of any enterprise, real property, or personal property of any nature, including money, through a pattern of racketeering activity.

The Georgia RICO Act, OCGA § 16-14-1 et seq., is modeled upon and closely analogous to the Federal RICO statute. Chancey v. State, 256 Ga. 415 (349 SE2d 717) (1986). Because the statute is fairly recent, there are few decisions from Georgia courts interpreting it. Therefore, we must look primarily to the federal decisions for guidance on our interpretation of the Georgia RICO statute.

The State’s indictment named seven defendants who composed the group of individuals who were associated in fact, although they did not constitute a legal entity. Appellants argue the evidence was insufficient at trial to establish a group of individuals associated in fact — an enterprise, as defined by the RICO Act — in whose aifairs they could have participated directly or indirectly. We disagree.

All appellants argue that the evidence was insufficient at trial to establish the existence of an enterprise so as to authorize conviction under the Georgia RICO statute. We find, however, that the evidence adduced at trial sufficiently established the existence of an enterprise to authorize conviction under RICO. In United States v. Elliott, 571 F2d 880 (5th Cir. 1978), the court held at 898: “A jury is entitled to infer the existence of an enterprise on the basis of largely or wholly circumstantial evidence ... [A] RICO enterprise cannot be expected to maintain a high profile in the community. Its aifairs are likely to be conducted in secrecy and to involve a minimal amount of necessary contact between participants. Thus, direct evidence of association may be difficult to obtain.”

In order to prove a violation of the Georgia RICO Act, the State must initially prove the existence of an enterprise. United States v. Turkette, 452 U. S. 576, 583 (101 SC 2524, 69 LE2d 246) (1981); Chancey v. State, supra at 417. OCGA § 16-14-3 (1) defines “enterprise” as follows: “any person, sole proprietorship, partnership, corporation, business trust, union chartered under the laws of this State, or other legal entity; or any unchartered union, association, or group of individuals associated in fact although not a legal entity; and it in-eludes illicit as well as licit enterprises and governmental as well as other entities.” United States v. Elliott, supra at 897, defines “enterprise” as follows: “[W]e are persuaded that ‘enterprise’ includes an informal, de facto association ... In defining ‘enterprise,’ Congress made clear that the Statute extended beyond conventional business organizations to reach ‘any . . . group of individuals’ whose association, however loose or informal, furnishes a vehicle for the commission of two or more predicate crimes . . . There is no distinction, for ‘enterprise’ purposes, between a duly formed corporation . . . and an amoeba-like infra-structure that controls a secret criminal network.” Under Turkette, supra at 583, an enterprise is proven by “evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit.”

In a subsequent case, United States v. Cagnina, 697 F2d 915, 920 (1983), the Eleventh Circuit (successor to the Fifth Circuit) adopted the rationale of Turkette and Elliott: “This circuit has interpreted ‘enterprise’ to include an informal criminal network engaged in racketeering activity, ... In United States v. Elliott . . . the court held that a group of persons who had committed a variety of unrelated offenses with no agreement as to any particular crime could be convicted of a RICO offense, because they were associated for the purpose of making money from repeated criminal activity.” Turkette and related cases require the State to prove both the separate elements of an enterprise and a pattern of racketeering. Cf. OCGA § 16-14-4 (a), (b). Appellant Martin alleges that the State used the same evidence to establish both those elements, a practice which he claims is barred under Turkette. What the court actually held in Turkette, however, was that while proof of one of the elements does not necessarily establish the other, “the proof used to establish these separate elements may in particular cases coalesce.” Id. at 2529.

Martin argues that the State proved only that he knew appellant Merka but failed to prove that he knew of the existence of any of his other five co-defendants. He also claims that the State failed to prove that appellants’ association had an “ascertainable structure,” as required by United States v. Anderson, 626 F2d 1358 (8th Cir. 1980).

We agree with the analysis set forth by the 11th Circuit in such cases as Turkette and Elliott, supra, and find appellants’ arguments to the contrary without merit. First, contrary to appellants’ allegations, the State was not required to prove that all of the members of the enterprise knew of the others’ existence. Neither did the State have to prove an “ascertainable structure,” as Martin suggests. See our quotation from Elliott, supra at 897. We note that such cases as United States v. Sutton, 605 F2d 260 (6th Cir. 1979), are so distinct from the instant case on their facts as to be largely inapplicable to the case sub judice.

While the testimony of more than seventy witnesses in the cases at bar helped to establish a pattern of racketeering activity in that the appellants were responsible for certain files that were missing from the DeKalb County Solicitor’s Office, this testimony also helped to establish the existence of an enterprise, since every witness whose file was missing had hired Merka, Martin, or Allen to “handle” his case. Yet this was not the only evidence the State presented in proof of the existence of an enterprise. Also presented were the computer-generated telephone lists showing phone calls made between the parties at significant times, the testimony of Merka’s secretaries, and the numerous remarks made by Allen and Martin to their clients indicating that someone else was involved in the handling of the DUI cases.

Like Martin, Merka also relies on the 8th Circuit’s analysis, as in United States v. Anderson, supra, claiming that the State failed to prove the existence of an enterprise. He claims that the three requirements for constituting an enterprise as set forth in United States v. Bledsoe, 674 F2d 647 (8th Cir. 1982), are missing from the State’s case. These include a common purpose, continuity of structure, and an ascertainable structure distinct from that of the pattern of racketeering activity. Under the facts of this case, we find this to be a distinction without a difference. The same analysis applies to appellant Allen’s assertions. We find no merit in appellants’ enumerations regarding any failure to find sufficient evidence of RICO violations by all three defendants.

3. Appellants Martin, Merka, and Allen contend the trial court erred in denying their motions for severance. Martin argues the joinder was impermissible because the offenses with which Martin and the other two co-defendants were charged did not arise out of the same transaction or series of transactions. Merka alleges that the only basis upon which the trial court could have allowed joinder was the State’s RICO theory of prosecution, and, because he claims the RICO charges against him were not proven, his joinder was improper. Appellant Allen contends that his role was “passive” and that, as a result of the trial court’s refusal to sever his trial from that of his co-defendants, a “spillover” effect of the evidence against his co-defendants led to his convictions.

The denial of severance is within the discretion of the trial court and will not be reversed unless it can be shown the joint trial constituted a denial of due process. Carroll v. State, 147 Ga. App. 332 (248 SE2d 702) (1978). In determining the severance issue, the trial court must consider the following: (1) Whether the joint trial will create confusion of the evidence and law applicable to each individual defendant; (2) Whether there is danger that evidence admitted against one defendant will be considered against another despite cautionary instructions by the court; (3) Whether the co-defendants will claim antagonistic defenses. Jones v. State, 243 Ga. 584, 586 (255 SE2d 702) (1979). See also Cain v. State, 235 Ga. 128, 129 (218 SE2d 856) (1975).

(a) “[T]wo or more defendants charged with different offenses may be tried jointly where the offenses were part of a common scheme or plan.” Padgett v. State, 239 Ga. 556, 559 (238 SE2d 92) (1977). Our review of the facts of the instant case indicates that appellants were indicted for their participation in an ongoing criminal enterprise which had a common purpose — in the interest of pecuniary reward to prevent the prosecution of criminal cases pending in the Solicitor’s Office of DeKalb County. Therefore, appellant Martin’s claim that joinder was not permissible because the offenses did not arise out of the same transaction or series of transactions is without merit.

(b) Because this court has held, supra, that Merka was properly charged, tried, and convicted of violating the Georgia RICO Act, his sixth enumeration of error concerning the misjoinder of the parties is without merit.

(c) Applying the test set forth in Jones v. State to the instant case, we find that the trial court did not abuse its discretion in refusing to sever Allen’s trial. The verdict form as returned by the jury serves as a clear indication that the jury understood the indictment and the evidence as it related to each appellant. Although Allen argues that this is not true because the jury did not acquit him on any counts, the record reveals that all of the counts with which Allen was charged were based on clear evidence that he was involved, either directly or indirectly, with the removal of files from the DeKalb County Solicitor’s Office. Also, the mere fact that fewer counts were proven against Allen than against the other appellants by no means establishes that appellant Allen’s conviction was based on “spillover.” Moreover, the trial court’s instruction to the jury to consider the evidence against each defendant individually, along with the verdict which was rendered, establishes that Allen was convicted because the jury was convinced of his guilt beyond a reasonable doubt. Furthermore, Merka was the only appellant to testify on his own behalf, and he did not predicate his defense upon, the guilt of appellant Allen. Cf. United States v. Hewes, 729 F2d 1302 (11th Cir. 1984).

4. Appellants Martin and Allen allege that the trial court erred in failing to give the specific jury charges they had requested. Martin, in his fifth and sixth enumerations, argues that the trial court improperly refused to charge the jury regarding the law of conspiracy and multiple conspiracies. Allen contends in his tenth enumeration that the trial court erred in failing, in its charge to the jury, to define the specific intent element of the crime of stealing public documents.

(a) The language of Counts 1 and 2 of the indictment make it clear that appellants were charged with two substantive violations of the Georgia RICO Act (OCGA § 16-14-4) and not conspiracy to violate RICO. Count 1 of the indictment closely tracks OCGA § 16-14-4 (b) and contains all of the essential averments of this statute. Likewise, Count 2 of the indictment also alleges a substantive RICO violation under OCGA § 16-14-4 (a) and also contains all of the essential averments of this statutory provision. Therefore, we find that the indictment in the instant case did not allege “a single conspiracy,” as Martin argues. Accordingly, Martin’s requests for jury charges regarding conspiracy and multiple conspiracies were properly denied by the trial court.

(b) Appellant Allen enumerates as error the failure of the trial court to issue a jury charge on the specific intent element of the crime of stealing public documents. This court cannot find in the record where Allen submitted a written request to charge on specific intent, as required by OCGA § 5-5-24. Furthermore, the trial court gave the jury charge for the intent required for stealing public records, which clearly informed the jury that appellants were required to “wilfully” remove or cause the removal of the documents “with the intention of converting to his own or another’s use.” The trial court also gave the standard charge on criminal intent. In these circumstances, the failure to charge on specific intent did not create reversible error. See, e.g., Hand v. Hand, 244 Ga. 41 (257 SE2d 507) (1979); Wilbanks v. State, 165 Ga. App. 876 (303 SE2d 144) (1983). Accordingly, Allen’s tenth enumeration of error is without merit.

5. OCGA § 17-9-1 (a) prescribes: “Where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or ‘not guilty’ . . . , the court may direct the verdict of acquittal to which the defendant is entitled.” (Emphasis supplied.) Subsection (b) of this statute permits the defendant “to move for a directed verdict at the close of the evidence offered by the prosecuting attorney or at the close of the case. . . .” A motion for directed verdict should be granted only where there is no conflict in the evidence, and the evidence demands acquittal as a matter of law. Zuber v. State, 248 Ga. 314 (282 SE2d 900) (1981). The Supreme Court will hold that the trial court did not err in failing to direct a verdict of acquittal where, as here, it cannot be said that there was no conflict in the evidence and the evidence demanded a verdict of acquittal. Conger v. State, 250 Ga. 867 (301 SE2d 878) (1983).

Despite appellant Martin’s allegations regarding evidentiary insufficiency, we have held previously, supra, that the charges against each of the defendants in the cases sub judice conform to the requirements of OCGA § 16-14-4 (a) and (b), under which the defendants were charged and tried. See Chancey v. State, supra. To quote from a case relied upon by Martin himself, “To secure a conviction under RICO, the Government must prove both the existence of an ‘enterprise,’ . . . and the connected pattern of racketeering activity.” United States v. Turkette, supra at 583.

This is exactly what the State has proven with respect to each of the appellants here. The evidence cited in Martin’s appellate brief approaches, at the very most, allegations that the incidents involving his clients were but examples of the operation of the “long arm of coincidence.” Of course, they fall far short of fulfilling the statutory requirements cited supra, or the imperative of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Martin’s allegation that none of the parties in the ticket-fixing enterprise knew each other is blatantly untrue, as demonstrated not only by the “clients’ ” testimony, but also by the telephone logs and by Merka’s secretary’s testimony. See Division 2, supra.

Likewise, the evidence adduced by appellant Merka in support of his analogous enumeration of error leans heavily on that same long arm named above, by positing a remarkable series of coincidental occurrences — so remarkable, in fact, as to raise the expectation that appellants will attempt to propound alternative “reasonable hypotheses of guilt.” No such alternative hypothesis is expounded or even enunciated in Merka’s brief, so that such argument, tenuous as it may be ab initio, is abandoned in the very moment of its proposal.

As for Allen, he asserts that his motion for directed verdict of acquittal should have been granted because the only actions of his that might conceivably be characterized as “participation” in any aspect of the RICO enterprise were isolated instances of such innocuous activities as “referring cases to a lawyer.” Allen alleges that such activities do not meet the test set forth in United States v. Bright, 630 F2d 804 (5th Cir. 1980), which requires at 822 that a defendant “objectively manifest an intent to participate in the criminal enterprise.” Allen argues that “mere association with nefarious characters is not a ground to convict.” Id. at 822. It is a truism of law that intent is a question of fact and may be found by the trier of fact from, inter alia, consideration of prior or subsequent conduct. OCGA § 16-2-6; Worth v. State, 179 Ga. App. 207 (346 SE2d 82) (1986); Mallette v. State, 119 Ga. App. 24 (165 SE2d 870) (1969). The enumerations of all three appellants regarding the trial court’s denial of directed verdicts of acquittal are plainly without merit.

6. Allen alleges in his third enumeration of error that the trial court erred in denying his motion for continuance based on supplemental witness lists filed by the State. Allen claims he was not properly prepared to defend his case because the supplemental lists were delivered in an untimely fashion under OCGA § 17-7-110.

On April 24, 1987, appellant made a written demand for a list of the State’s witnesses. In compliance, on July 27, 1987, the State filed a list of witnesses, comprising approximately 128 names, but supplemented this initial list on August 21, 1987, with 60 additional names and again on August 26, 1987, with 74 additional names. The trial of the case began on September 8, 1987.

Under Ellis v. State, 248 Ga. 414, 416 (283 SE2d 870) (1981), the State must provide a complete witness list “within a reasonable time before trial so that the defendant may be adequately prepared. What constitutes a reasonable time before trial must depend upon the nature of the case, the number of the State’s witnesses, the nature of their testimony, and any other factor which may logically bear upon the question.”

The rational trier of fact would find that Allen’s defense would not have been hindered by the absence of the supplemental witness lists. The record reveals that only six of the 262 witnesses whose names the State supplied testified against appellant Allen at trial, and these six witnesses appeared on the original list which was filed on July 27, 1987, six weeks before trial was scheduled to begin. Six weeks is clearly a reasonable time under Ellis, supra, particularly when the witnesses were so few and the issues so simple. Therefore, we find that the trial court did not abuse its discretion in denying appellant Allen’s motion for continuance. Accordingly, Allen’s third enumeration of error is without merit.

7. Generally, the grant or denial of a motion for mistrial is within the sound discretion of the trial judge, Johnson v. State, 142 Ga. App. 526 (236 SE2d 493) (1977), and that discretion will not be disturbed by the appellate court absent abuse. In the instant case, although the motions that are the subject of Merka’s third and Allen’s fourth enumerations of error were made at different times during the trial and were based on different grounds, we find no abuse of discretion in the trial court’s denial of either.

Merka’s motion for mistrial was based on an incident in which an attorney representing Martin made a statement in the hearing of the jury to the effect that he had previously represented a witness who testified against the defendants at a Grand Jury hearing. According to the record, Merka did not move for mistrial right at that point, but waited not only until after the conclusion of the cross-examination during which the objectionable remark had been elicited, but until there had followed redirect examination, further direct examination, and further cross-examination. Ordinarily, a motion for mistrial must be made promptly after the improper question or answer, Veasley v. State, 142 Ga. App. 863 (237 SE2d 464) (1977); and failure to move for a mistrial at the appropriate time is tantamount to waiver. Dye v. State, 177 Ga. App. 824 (341 SE2d 314) (1986). Moreover, in the instant case the trial court immediately gave a very clear and fair instruction to the jury that should have dispelled any misapprehension that the testimony might have created. In such circumstances, the overruling of the motion for mistrial was not even error. Chandler v. State, 143 Ga. App. 608 (239 SE2d 158) (1977). Furthermore, the attorney who made the challenged remark actually had no connection whatsoever with other allegations or charges against Merka; the only concern of the attorney himself was that he not be implicated in any of the offenses with which Merka was being charged.

Allen’s motion for mistrial was based on remarks of a female witness about learning of the “ticket-fixing” while on a trip to Florida with her boyfriend, a severed co-defendant. Allen moved for mistrial on the ground that these remarks constituted inadmissible hearsay testimony. In the first instance the trial court immediately gave a sufficient curative instruction, and Allen’s counsel did not renew the objection to the testimony. In the second instance the witness said that she could not remember for sure whether Allen had also actually gone along on the trip to Florida during which she had allegedly first learned from her boyfriend of the “ticket-fixing.” When Allen’s counsel objected to this as hearsay, the trial court, recognizing that the testimony was not hearsay, simply admonished the witness not to speculate but merely to say whether she had or had not seen appellant Allen in Florida. Again the objection was not renewed. We find these enumerations without merit.

8. Allen appeals the trial court’s denial of his motion to suppress certain evidence obtained as a result of two separate search warrants; namely, a spiral-bound notebook which contained the notation, “Larry Freeman, DUI $2500, 409 N. McDonough Street, Satisfactory.”

On August 6, 1986, a detective went to appellant Allen’s residence to speak with him about an ongoing investigation of missing DUI files. He was invited into the premises by Allen and, while waiting for Allen to finish a telephone call, he observed several marijuana plants growing in pots on Allen’s back patio. Allen was then taken to be interviewed about the missing DUI files. At that time a second detective obtained the first search warrant, based upon the first detective’s observation of marijuana plants. Pursuant to the search warrant, police officers conducted a search of appellant Allen’s apartment which revealed the notebook belonging to Allen. In the course of the search a narcotics officer discovered the notation in question, which he believed was related to the ongoing DUI investigation. Upon this finding, a second search warrant was then obtained for the documents in Allen’s home which constituted evidence of the DUI cases currently under investigation. Most of the items seized were listed on the inventory of both warrants.

Allen argues that the scope of the search exceeded that which was necessary for seizing the marijuana which had been observed on his premises. He maintains that personal papers are an exception to an officer’s authority to seize those items for which he has probable cause. Testimony of the narcotics officer, however, indicated that in normal compliance with a drug warrant, officers routinely conduct a thorough search in which they look for drugs, lists of customers, and any other information tending to establish a drug connection. The facts show that during the course of the initial search for drug-related items, the narcotics officer recognized evidence related to another crime. Evidence of another crime, discovered while searching pursuant to a valid search warrant, may be lawfully seized. DePalma v. State, 228 Ga. 272 (4b) (185 SE2d 53) (1971). Moreover, seizure of private papers not included in the warrant is not precluded when the items seized are instrumentalities of a crime and the search is valid. Ledesma v. State, 251 Ga. 885, 890 (311 SE2d 427) (1984).

Allen also questions whether the search warrants were executed in good faith. After a review of the facts and the routine procedures used by the officers in drug searches, we find appellant’s argument untenable. Therefore, the trial court properly denied appellant Allen’s motion to suppress, and Allen’s first enumeration is without merit.

9. “Restitution” is defined in OCGA § 17-14-2 (7) as “any property, lump-sum or periodic payment ordered to be made by any of-. fender to any victim by any ordering authority.” Subsection (9) of the statute defines “victim” as “any natural person or his personal representative or any firm, partnership, association, public or private corporation, or governmental entity suffering damages caused by an offender’s unlawful act.”

The appropriate measure of damages for restitution is that measure of damages which would be proper in whatever civil action the victim could have maintained against the perpetrator or perpetrators for the same, or equivalent, acts as those which constituted the of-:" fense of which the offender has been convicted and sentenced (with the exception of punitive damages and damages for pain and suffering, mental anguish, or loss of consortium). OCGA § 17-14-2 (2); Garrett v. State, 175 Ga. App. 400 (333 SE2d 432) (1985). The Supreme Court recently held in Walden v. State, 258 Ga. 503, 504 (371 SE2d 852) (1988), that the fees for jurors and bailiffs may not be taxed against criminal defendants. See OCGA § 17-11-1; Peters u. State, 9 Ga. 109 (1850). That portion of the sum ordered to be paid as restitution which represents fees paid for special grand jurors, traverse jurors, and bailiffs must therefore be calculated and deducted from the previously awarded total of $137,092.34.

However, there were in the instant case expenses incurred in the Solicitor’s Office during the investigation and prosecution of the cases, and other fairly readily determinable costs, as well — not to mention the unknown amount of lost revenues that might have been received for convictions on the “fixed” offenses. The State adequately sets out the basis of its claim for restitution of known expenses, and (other than the erroneously awarded sums representing the costs of jurors and bailiffs noted, supra) we find nothing erroneous or unreasonable therein.

As to the argument that imposition of costs will have a chilling effect on the exercise of the accused’s right to a jury trial, we can only observe that laws allowing assessment of costs against convicted criminals have been on the books since 1863. OCGA § 17-11-1. As for appellant Merka’s contention that holding the appellants jointly and severally liable for the entire restitutionary amount is unjust, we need only point to the time-honored analogy in tort law, to which, under statutory and case law, the courts must look when determining what restitution is due. See OCGA § 51-12-31. See also OCGA § 17-14-3; Morrison v. State, 181 Ga. App. 440 (352 SE2d 622) (1987).

10. All three appellants attack the indictment as duplicitous and multiplicitous. They allege not only that Count 1 and Count 2 (RICO violations) are duplicitous but that, because the crimes charged in Counts 3-77 (or, as regards various defendants, as many as are applicable to them respectively) are precisely the same as those recited in Count 1 as the “at least two incidents of racketeering activity” required to establish a RICO violation, as defined in OCGA § 16-14-3, then the counts (3-77) in which the predicate offenses are recited are all duplicitous, and the convictions thereon should be reversed. In Chancey v. State, supra at 416, the court defined “multiplicity” as “the charging of the same crime in several counts of a charging document . . . Count 1 of the indictment charged appellants with violating RICO, Counts 2 through 5 charged appellant . . . with murder and arson, and these latter counts were based on different facts from those supporting the RICO counts. We find that the indictment was not multiplicitous.” In Chancey the facts needed to prove Counts 2 - 5 were entirely different from those used to prove Count 1.

In the case at bar, however, all the facts recited as the basis for Counts 3 through 77 are also recited verbatim as the predicate for Count 1 (violation of OCGA § 16-14-4 (b)). In Count 1 these facts are evidence of appellants’ association with an “enterprise” and participation, directly or indirectly, in the enterprise by engaging in a pattern of racketeering activity. The facts needed to prove Counts 3 through 77 are that appellants, through a variety of methods and acts, stole the records and documents belonging to the DeKalb Solicitor’s Office, and these facts are exactly the same as those in Count 1. Only in Counts 2 (violation of OCGA § 16-14-4 (a)), 78 (first-degree forgery), and 79 (criminal attempt to steal public records) are different facts recited.

OCGA § 16-1-7 provides, in pertinent part, that “[w]hen the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if: (1) One crime is included in the other; or (2) The crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.” A crime is included in another when “[i]t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged.” OCGA § 16-1-6 (1). Haynes v. State, 249 Ga. 119 (288 SE2d 185) (1982); State v. Estevez, 232 Ga. 316 (206 SE2d 475) (1974).

A conviction under RICO is a two-step process: (1) proving that appellant has committed two or more offenses of the sorts included in the RICO statutes, and (2) proving that the two or more offenses have been committed as a part of an enterprise engaging in a pattern of racketeering activity, as defined in the RICO Act.

In United States v. Phillips, 664 F2d 971 (5th Cir. 1981), appellants were charged with conspiracy to violate RICO as well as substantive RICO violations, and with violation of the continuing criminal (narcotics) enterprise statute, 21 USCA § 848. They argued that in narcotics conspiracy cases a RICO conspiracy charge is a lesser included offense of a § 848 continuing criminal enterprise claim. The federal test for determining whether two offenses are the same for purposes of double jeopardy is “ ‘whether each provision requires proof of an additional fact which the other does not.’ [Cits.]” United States v. Phillips, supra at 1005. This test is derived from Blockburger v. U. S., 284 U. S. 299 (52 SC 180, 76 LE 306) (1932). The Blockburger test focuses not on the evidence adduced at trial but on the elements of the offenses; i.e., to invoke the bar of double jeopardy, the offenses charged must be the same as a matter of fact and as a matter of law. “ ‘If each [offense] requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.’ [Cit.]” Phillips, supra at 1006. Under federal law, then, the fact that the RICO counts include the additional element of showing association with an “enterprise” serves to dispel any allegation of merger.

Under Georgia law, as distinguished from federal law, the rule is stated in the disjunctive, and looks to the evidence introduced at trial. An accused may not be subjected to multiple punishments if the crimes charged are the same as a matter of fact or as a matter of law. State v. Estevez, supra. “[I]f the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact under [OCGA § 16-1-6 (1)]. [Cit.]” Haynes v. State, supra at 120. “ ‘A felony may merge into another felony which requires an additional element or a more culpable mental state or a more serious injury or risk of injury to the same person, property, or public interest.’ [Cit.]” Id. The entry of separate convictions in the instant case for the offenses used as the predicate offenses in Count 1 is thus barred by OCGA § 16-1-7 (a), which prohibits multiple convictions for the same conduct.

According to the record, the indictment (Count 1) charges all the defendants with unlawfully conducting or participating (directly or indirectly) in an enterprise “through a pattern of racketeering activity consisting of theft by taking and tampering with evidence,” as manifested in some seventy-five separate instances of the charged offenses ((1) theft by taking and (2) tampering with evidence). See OCGA §§ 16-14-3 (2), 16-14-4 (b). Count 2 incorporates the allegations of Count 1 and charges, in addition, the violation of OCGA § 16-14-4 (a): “to acquire or nurture . . . [through a pattern of racketeering activity or proceeds derived therefrom] any interest in or control of any enterprise, real property, or personal property . . . including money.” This violation is alleged to consist of acquiring two automobiles, an acre of land, and more than $100,000 in United States currency. It is clear that the offenses enumerated in Count 2 were not based upon, and did not “use up,” the same evidence as that which afforded the basis for Count 1. Therefore, Counts 1 and 2 are not duplicitous of one another, and each conviction can stand. Likewise, Count 78 alleges first-degree forgery against Martin & Merka, and Count 79 alleges against the same two defendants criminal attempts to steal public records. Neither of these two counts is duplicitous of the other or of Counts 1 or 3-77; and, therefore, the convictions on both can stand.

The challenged convictions in Counts 3-77, however, present a different situation. As previously noted, supra, the record shows that in each of the seventy-five counts immediately following Count 2, the State realleged seriatim and verbatim each of the separate instances recited in Count 1. Any two of these counts (3-77) would have sufficed to make up the essential elements required by OCGA § 16-14-3 and 16-14-4. Because the State chose gratuitously to include as predicates for a RICO violation all of the instances of the prohibited acts recited in Counts 3-77, it has “used up” the evidence, so that there is none left to form the basis for the separate offenses enumerated in these latter counts, and none of these convictions can stand.

It is true, of course, that appellants enumerate in this regard only the overruling of their motions to quash the indictments as multiplicitous and to require the prosecutor to elect upon which counts he would proceed. This enumeration of error challenges the multiple prosecutions, and consequently does not actually reach the error because, as previously noted, the rules barring multiple prosecutions are different from those barring multiple punishments. The rules against multiple prosecutions are procedural, and merely protect an accused from being unduly harassed by or threatened by successive criminal prosecutions. The operative error here is in the conviction and sentencing of appellants for the same conduct twice.

Despite that, this court should take note of and correct this error, if possible. “ ‘ “In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.” [Cit.]’ [Cits.]” Almond v. State, 180 Ga. App. 475, 480 (349 SE2d 482) (1986). (Emphasis supplied.) “[We] find this to be one of those cases in which the rule quoted above was intended to be applicable. It would seriously affect the fairness and integrity of the judicial system to allow an illegal and unauthorized sentence to stand . . .” Taylor v. State, 186 Ga. App. 113, 115 (366 SE2d 422) (1988).

We conclude, therefore, that the trial court erred in sustaining separate convictions and imposing separate sentences. Nor is the error necessarily harmless, despite the fact that the sentences are to be served concurrently. Our Supreme Court has expressed no opinion as to whether the imposition of concurrent sentences bars review of double jeopardy proscriptions. See State v. Estevez, supra at 320. In Estevez, however, the Supreme Court acknowledged that the sentences were to run concurrently, and nevertheless affirmed this court’s opinion, reversing and remanding with direction that another jury be empaneled for the purpose of determining sentence. There is no jurisdictional bar to such consideration (see Benton v. Maryland, 395 U. S. 784, 789-790 (89 SC 2056, 23 LE2d 707) (1969)), and sentences for additional crimes, even if served concurrently, may affect such matters as parole and pardon.

The three captioned cases must therefore be remanded to the Superior Court for resentencing. Counts 1, 2, 78, and 79 must be affirmed with respect to Martin and Merka, as we find no error below with regard to those counts. Likewise (although appellant Allen does not support his corresponding enumeration in his brief and is therefore deemed under Court of Appeals Rule 15 (b) to have abandoned it), those counts which are duplicitous of the offenses cited as predicate crimes must be reversed, leaving standing only Allen’s convictions of the RICO counts (Counts 1 and 2), which we affirm.

Judgments in all three cases affirmed in part and reversed in part.

Sognier, J., concurs. Carley, J., concurs in the judgment only.

Decided November 15, 1988 —

Rehearings denied December 5, 1988

Steven T. Maples, Gregory N. Crawford, for appellant (case no. 77025).

Calvin A. Leipold, Jr., for appellant (case no. 77026).

Mary S. Donovan, for appellant (case no. 77027).

Robert E. Wilson, District Attorney, Patricia G. Higginbotham, Eleni A. Pryles, Assistant District Attorneys, for appellee.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    77047.
    HENDERSON v. SHERRINGTON et al.
    (376 SE2d 397)
   Banke, Presiding Judge.

On August 16, 1985, the appellant was notified by the Tax Commissioner of Gwinnett County that her job as motor vehicle tag supervisor, a position she had held for 19 years, was being abolished. The appellant’s employment was thereafter terminated, effective September 16, 1985. She appealed her termination to the Gwinnett County Merit System Board, which ruled that the tax commissioner was not authorized to abolish the appellant’s position. The commissioner nevertheless refused to reinstate the appellant, maintaining that the merit board had no authority to review her decision.

The appellant brought the present action against the merit board, the board’s executive secretary, the county, and the tax commissioner, seeking to be restored to her job and to recover damages and attorney fees for intentional infliction of emotional distress and for violation of her federal constitutional rights. See 42 USC § 1983. The trial court subsequently entered an order reinstating the appellant to her prior position with back pay and employment benefits, and that order was affirmed by the Supreme Court without opinion in Sherrington v. Henderson, 256 Ga. at XXVIII (Case No. 43906, decided November 25, 1986). The case is now before us on appeal from an order granting summary judgment to the tax commissioner and the county with respect to the appellant’s damage claims. Held:

1. The trial court did not err in concluding that no genuine issues of material fact remained with respect to the appellant’s claim for damages based on intentional infliction of emotional distress. It is apparent without dispute from the record in this case that in abolishing the appellant’s job, the tax commissioner was attempting to implement a general reorganization plan and that in refusing to recognize the merit board’s authority she was relying on the advice from the county personnel director and from a county staff attorney that the office of the tax commissioner was not subject to the board’s jurisdiction.

“[W]here recovery has been authorized for intentional infliction of emotional distress, the defendant’s actions were so terrifying or insulting as naturally to humiliate, embarrass or frighten the plaintiff.” Georgia Power Co. v. Johnson, 155 Ga. App. 862, 863 (274 SE2d 17) (1980). We hold that the commissioner’s attempt to implement her reorganization plan to the resulting detriment of the appellant did not constitute “ ‘the kind of egregious conduct necessary to state a claim for intentional infliction of emotional distress.’ [Cit.]” Sossenko v. Michelin Tire Corp., 172 Ga. App. 771 (324 SE2d 593) (1984). See also Miles v. Bibb Co., 177 Ga. App. 364 (3) (339 SE2d 316) (1985); Anderberg v. Ga. Elec. Membership Corp., 175 Ga. App. 14 (3) (332 SE2d 326) (1985).

2. The trial court determined that any damage claim the appellant might otherwise have had under 42 USC § 1983 based on the violation of her procedural due process rights was moot, since she had chosen to pursue an available state remedy which had ultimately resulted in her reinstatement with back pay. We agree. In Parratt v. Taylor, 451 U. S. 527 (101 SC 1908, 68 LE2d 420) (1981), the Supreme Court held that in order for the conduct of a state official to give rise to a constitutional due process violation, the official must have acted in accordance with established policy rather than in defiance of it, with the result that available state remedies are not themselves adequate to provide the claimant with redress for the alleged injury. Otherwise, the Court ruled, the requirements of due process will he deemed satisfied “[although the state remedies may not provide the respondent with all the relief which may have been available if he could have proceeded under § 1983. . . .” Id. at 543-544. See also Lee v. Hutson, 810 F2d 1030 (11th Cir. 1987).

The adequacy of the state remedy in this case has been conclusively established by the fact that it resulted in the appellant’s reinstatement with back pay and benefits. It follows that the appellant has no remaining cause of action for damages for violation of her procedural due process rights under 42 USC § 1983. See also City of Cave Spring v. Mason, 252 Ga. 3, 5 (310 SE2d 892) (1984).

3. The appellant contends that even if she has no cause of action under 42 USC § 1983 based on violation of her procedural rights, she may nevertheless seek damages for violation of her substantive due process rights. We disagree.

“[N]ot every wrong committed by a state actor rises to the level of a ‘constitutional tort’ sufficient to trigger a substantive due process violation. In Gilmere [v. City of Atlanta, 774 F2d 1495 (11th Cir. 1985), the court] stated, “(S)ubstantive due process is violated by state conduct that “shocks the conscience” or constitutes force that is “brutal” and as such “offend[s]” even hardened sensibilities.’ Id. at 1500, quoting Rochin v. California, 342 U. S. 165, 172-73, 72 S. Ct. 205, 209-10, 96 L.Ed. 183 (1952).” Lee v. Hutson, supra, 810 F2d at 1032. Having previously held, in Division 1 of this opinion, that an administrative or personnel action of the type under consideration here cannot, in and of itself, be considered so terrifying or humiliating as to give rise to a cause of action for intentional infliction of emotional distress, we similarly hold that it cannot be considered so brutal or shocking as to constitute a substantive due process violation. It follows that the appellees were properly granted summary judgment with respect to the appellant’s claim for damages based on 42 USC § 1983.

Decided November 15, 1988 —

Rehearing denied December 5, 1988

Harrison & Harrison, Samuel Harrison, G. Hughel Harrison, for appellant.

Richard A. Carothers, Michael A. O’Quinn, for appellees.

4. It necessarily follows from the foregoing that the appellant was not entitled to recover attorney fees pursuant to 42 USC § 1988.

5. Pretermitting whether the appellant ever asserted a claim for tortious interference with contractual relations in the trial court, we conclude that the uncontroverted evidence of record negates the existence of any such cause of action by demonstrating a want of malice on the part of the appellees. Therefore, summary judgment would also have been proper with respect to this cause of action. Accord Johnson v. Auto/Mend, 183 Ga. App. 311, 312 (359 SE2d 10) (1987).

Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.


author: Carley, Judge.

text:
    77053, 77054.
    KUT-KWICK CORPORATION v. JOHNSON; and vice versa.
    (376 SE2d 399)
   Carley, Judge.

Appellee-plaintiff Cecil Johnson is a former employee of appellant-defendant Kut-Kwick Corporation. Appellee brought suit against appellant, alleging that he had been discharged from his employment in violation of OCGA § 34-6A-1 et seq., the Georgia Equal Employment for the Handicapped Code (GEEHC). The case was tried before a jury and, at the close of appellee’s evidence, appellant moved for a directed verdict. The motion was denied. At the close of all of the evidence, appellant renewed its motion for a directed verdict. The trial court denied the renewed motion and the case was submitted to the jury. The jury returned a verdict which found that appellee’s employment had been terminated as the result of his handicap. Consistent with that finding, the trial court entered a judgment which awarded appellee back pay and attorney’s fees. See OCGA § 34-6A-6 (b). In Case No. 77053, appellant appeals from the judgment entered for appellee. In Case No. 77054, appellee cross-appeals from the trial court’s grant of a motion to make a technical amendment in those provisions of the final judgment which related to the award of attorney’s fees.

Case No. 77053

1. Appellant enumerates as error the denial of its motions for a directed verdict.

The record shows that appellee was hired by appellant in 1965. During his first year of employment, appellee lost an eye in a work-related incident. In 1978, appellee developed cancerous growths on his face and neck, which resulted in partial facial paralysis, disfigurement, and slurred speech. Appellee himself testified, however, that he had never been treated differently from appellant’s other employees because of these physical conditions. Moreover, despite his loss of an eye and his cancer, it was not until 1983 that appellant’s employment was terminated. The termination was ostensibly the result of appellee’s failure to comply with appellant’s company policy regarding employees’ work absences. That company policy was as follows: “ATTENDANCE: We must have you here and on time. Any employee absent from work must call in, or at the end of the day a dismissal notice will be sent in. The employee, recently dismissed under this policy, may be rehired with or without the loss of pay status and with or without the loss of benefits at the discretion of his or her supervisor. . . . LEAVE OF ABSENCE: Granted in advance by management only, for a specific period of time.”

Appellee urges that, under the evidence, the jury was authorized to find that his alleged violation of company policy was a mere pretext for the termination of his employment. The record shows that, on April 18, 1983, appellee was permitted to leave work early, having voiced health-related complaints which had no apparent connection with his pre-existing eye or cancer conditions. During the subsequent week, he complied with company policy by telephoning appellant each work day. On April 22, 1983, appellee was hospitalized. Again in compliance with company policy, he had someone call appellant on his behalf to report that his absence from work was the result of his admission to the hospital. There is, however, no probative evidence that appellant was ever informed why appellee was hospitalized. The evidence shows appellant was informed only that appellee had been admitted to the hospital. Appellee made no request for a leave of absence in connection with this hospitalization. However, appellant unilaterally determined that, based upon the information that it had received, it would nevertheless grant appellee a preliminary leave of absence until May 1, 1983, or until more information was forthcoming. Appellant’s standard employee’s “leave of absence” form was prepared. This form, which was identical to those by which appellee had been granted medical leaves of absence on numerous prior occasions, provided, in relevant part, as follows: “This leave of absence expires on 5-1-83 and if the employee does not report to work the following day he/she will be separated per company policy. Any extension to this leave of absence will require the approval of the management of [appellant] with a stated expiration date after which the employee will be separated if he/she does not report back to work.”

Appellant did not apprise appellee that it had granted him the unsolicited preliminary leave of absence. It is clear, however, that, with regard to absences from work, company policy placed the burden upon the absent employee to contact appellant and that there was no burden upon appellant to contact its absent employees. It is undisputed that, throughout the week of April 25, 1983, neither appellee nor anyone acting on his behalf contacted appellant to report on his condition or to determine whether a medical leave of absence would be or had been granted. It is also undisputed that, based upon his past employment history, appellee was well aware of the company policy which required that an absent employee either make daily contact with appellant or, in the alternative, secure and comply with the terms of an authorized leave of absence. Having granted the unsolicited preliminary leave of absence, appellant did not use appellee’s failure to report to work or to phone during the week of April 25, 1983 as a reason for terminating his employment. However, when appellee did not report for work or call appellant on May 2, 1983, the hospital was contacted. The hospital reported that appellee had been released. On May 3, 1983, appellee happened to be seen by his supervisor. Appellee was sitting in his truck in the parking lot of a convenience store. Thereafter, appellant removed appellee from its payroll effective May 2, 1983, appellee having been determined to be in violation of company policy by his failure either to report for work on that day or to request an extension of the unsolicited preliminary leave of absence.

“Cases brought under the GEEHC, the purpose of which is to protect individuals from discrimination by private employers on the basis of various handicaps and disabilities, are similar to those brought under Title VII, the federal provisions prohibiting discrimination in employment on the basis of race and sex. The existence of a prima facie case under the state statute will be most often determined by the formula similar to that announced in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (93 SC 1817, 36 LE2d 668) (1973). [Cit.]” Shaw v. W. M. Wrigley, Jr. Co., 183 Ga. App. 699, 700 (1) (359 SE2d 723) (1987). “This formula is not an absolute, however, and has been altered to fit the facts of particular cases. With respect to cases involving discharge for violation of work rules, the plaintiff must establish that he was a member of [the] protected group [i.e., handicapped,] and then make a showing of some evidence to demonstrate either that he did not violate the rule or that, if he did, [non-handicapped] employees who engaged in similar acts were not punished similarly. [Cits.]” Capps v. Southeast Pkg. Corp., 612 FSupp. 419, 421 (1) (N.D. Ga. 1984).

The evidence demanded a finding that appellee had violated company policy. By his silence, appellee kept appellant totally uninformed as to his continuing absence from work. Although appellant had granted appellee an unsolicited preliminary leave of absence pursuant to its receipt of the general report of his hospitalization, appellee did not thereafter apprise appellant of the specifics of his treatment or his prognosis. Accordingly, on May 2, 1983, the date that appellee’s unsolicited preliminary leave of absence for his hospitalization expired, all that appellant knew was that, notwithstanding the hospital’s report of appellee’s release, he had neither reported for work nor called in to explain why he had not done so. Company policy required that appellant be kept apprised of the reason for an employee’s absence and, on May 2, 1983, appellant knew only that appellee’s most recently given reason was apparently no longer valid. Appellee offered no viable excuse for his failure to comply with company policy. OCGA § 34-6A-4 (a) provides that the GEEHC “shall not be construed ... to prohibit otherwise lawful employment practices or requirements merely because such practices or requirements affect a greater proportion of handicapped than nonhandicapped individuals within the area from which the employer customarily hires his employees.” There is nothing unlawful in requiring that all employees, as a condition of their continued employment, keep their employer currently informed as to an absence from work. Accordingly, that handicapped employees may be expected to have more medically-related work absences than non-handicapped employees is no excuse for appellee’s failure to have complied with appellant’s company policy. “Sick leave insures employees against loss of pay if they are incapacitated from performance of duties due to illness or injury. It manifestly does not define or limit [an employer’s] attendance standards.” King v. U. S. Postal Sues., _ FSupp. _ (D.D.C. 1988) (construing the Federal Rehabilitation Act of 1973).

Since the evidence demanded a finding that appellee did violate appellant’s company policy, the issue becomes whether appellee made a showing that non-handicapped employees who had committed similar violations were not discharged from their employment. Capps v. Southeast Pkg. Corp., supra. The record shows that appellee did not meet his evidentiary burden. He “produced no evidence to rebut [appellant’s] evidence that [he] was treated in the same manner as any other [of appellant’s] employee [s] would be under the same circumstances.” Dugger v. Delta Air Lines, 173 Ga. App. 16, 18 (325 SE2d 394) (1984). Absent some evidence of appellant’s disparate enforcement of its company policy regarding employees’ work absences, appellee was not entitled to have the case submitted to the jury. The GEEHC makes it unlawful to discriminate against handicapped employees. It does not make it unlawful to fail to discriminate in favor of handicapped employees. Accordingly, appellee could not rely upon the mere fact that he was handicapped as evidence which would authorize his recovery under the GEEHC. Appellant “certainly articulated a legitimate, non-discriminatory reason for the termination. According to [appellant] the sole reason for [appellee’s] termination was the fact that [he violated company policy]. . . . [Appellee had] the opportunity to prove that this reason was merely a pretext for [handicap] discrimination. [Cit.] It is uncontradicted that [appellee] did commit the actions for which [appellant] states it terminated him and that those actions did constitute grounds for his discharge. [Appellee] . . . simply failed to introduce any evidence to suggest that the proffered reason [was] pretextual.” Capps v. Southeast Pkg. Corp., supra at 422 (3).

Appellee’s further contention that appellant did not predicate its motions for a directed verdict upon the lack of sufficient evidence of disparate treatment is not supported by the record. It follows that the trial court erred in failing to grant a directed verdict in favor of appellant.

2. With one exception, appellant’s remaining enumerations of error are moot by virtue of our holding in Division 1. Appellant enumerates as error the trial court’s refusal to allow its answer to be amended so as to assert a counterclaim against appellee. Appellant did not file its motion for leave to amend until after the jury’s verdict had been returned. Accordingly, the trial court did not err in denying appellant’s motion. See generally Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 605 (203 SE2d 173) (1974).

Case No. 77054

3. We have held in Division 1 that appellee is not entitled to prevail on his GEEHC claim. Accordingly, any error in making a technical amendment to that judgment is a moot question, since no judgment in appellee’s favor was authorized. Therefore, appellee’s cross-appeal must be dismissed.

Decided November 15, 1988 —

Rehearing denied December 5, 1988

Ford & Harrison, E. Scott Smith, for appellant.

Evelyn H. Johnson, for appellee.

Judgment reversed in Case No. 77053.

Appeal dismissed in Case No. 77054. Deen, P. J., and Sognier, J., concur.


author: Birdsong, Chief Judge. Banke, Presiding judge,

text:
    77164.
    GLANTON v. THE STATE. JONES v. THE STATE.
    77165.
    (376 SE2d 386)
   Birdsong, Chief Judge.

Appellants, Eddie Glanton and Travis Jones, were jointly tried and convicted of burglary. Each has filed a separate appeal. Held:

1. Both appellants contend the trial court erred in allowing the State to use its peremptory strikes to exclude from the jury all three blacks who were prospective jurors. Counsel for Jones did not participate either in the initial jury voir dire of the prospective jurors or in the hearing on Glanton’s motion raising this objection. Following Jones’ counsel’s arrival, he expressed a desire to proceed with the trial, even though the trial court offered to allow his client to be tried separately. He was then allowed to question the jurors already selected for the purpose of determining whether they were qualified to try Jones, with the understanding that if there was “one juror, or more, that might be disqualified, or for whatever reason would be objectionable, and couldn’t serve on the jury [tjhen, of course, we would have to start all over. . . .” Following this voir dire the State said: “We don’t have any problems with this jury. [Jones’ counsel]: None on behalf of Mr. Jones. [Glanton’s counsel]: I wish I had some excuse, but I picked them, so I have got no problems.”

Under the foregoing circumstances, we hold that Jones waived any objections to the composition of the jury which ultimately convicted him by affirmatively choosing to be tried by this jury rather than “to start all over.” See generally Spencer v. Hopper, 243 Ga. 532, 536-537 (255 SE2d 1), U. S. cert. den. 444 U. S. 885; Atkins v. Martin, 229 Ga. 815 (3) (194 SE2d 463); Scott v. State, 172 Ga. App. 725, 727 (3) (324 SE2d 565).

2. Turning to appellant Glanton’s challenge to the array based on Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69), we have found no prejudicial error. An appellate court is at a tremendous disadvantage in reviewing a record for error, when the basis for the claim of error is-not recorded. See Baker v. State, 251 Ga. 464 (306 SE2d 917). In the instant case, error is asserted on the basis of peremptory challenges exercised by the State and voir dire was not recorded, nor was any attempt made to reconstruct the record. This court must rely upon the recollection of the parties and the trial judge as to what occurred during voir dire. It is not contested that the State used three of its peremptory challenges to strike three blacks from the venire. Nor is it at issue that they were the only three blacks in the venire pool. We find no possible error as to the striking of two of the blacks because they had testified they were “friends” of the defendant. Juror number 13 was struck because she said “she knew the defendant, she was friends with him.” A second potential black juror was struck because she said “she had been friends of the family for a long time. . . .” The third juror, “Portia L. McCutchins, she said that she knew the defendant, that’s the reason we struck her.” The assistant district attorney advised the court that she believed “the fact that they know the defendant might make them tend to lean toward what the defendant says, and we used our strikes in that manner.” Opposing counsel mentioned that a white juror also testified that he knew the defendant “by sight” and was not challenged. Appellant’s counsel argued to the trial court that the black jurors said “that they could be fair and impartial and that their friendship with the defendant would not, in any way, influence them. ...” (Emphasis supplied.) Hence, he argued that the State had not made a sufficient showing to rebut the inference of prejudice. The trial court disagreed and found that “although it may be a close question, as to the reasons for striking the McCutchins juror, there might be the same reasons for striking various white jurors. The Court will permit the trial to proceed with the jurors that are in the box.”

The proscription set forth in Batson, supra, is that a prosecutor “ ‘may not strike a black juror solely because of his race, nor may he strike on the basis of an assumption which arises “solely from the jurors’ race.” ’ ” Mincey v. State, 257 Ga. 500, 502 (360 SE2d 578). This did not occur in the case at bar. The defendant can establish a prima facie case of purposeful discrimination in selection of the petit jury on evidence that the prosecutor struck all black members of the venire. Durham v. State, 185 Ga. App. 163, 166 (363 SE2d 607). Once the defense makes this prima facie showing, the burden shifts to the State to come forward with a race-neutral explanation for challenging black jurors. Barton v. State, 184 Ga. App. 258, 259 (361 SE2d 250). In this appeal, the prosecution established a racially-neutral basis for challenging each juror — that each black juror knew the defendant. The assistant district attorney argued to the judge: “the State often strikes people that they know the defendant, or if they know [defendant’s counsel] or know some of the witnesses, so that is something we commonly do, whether or not they are black or white.” Once the prosecution establishes a “ ‘neutral explanation related to the particular case to be tried[, t]he trial court then will have the duty to determine if the defendant has established purposeful discrimination.’ ” Barton v. State, supra, 259. “The trial court’s findings are, of course, entitled to ‘great deference,’ Batson, supra . . . and will be affirmed unless clearly erroneous.” Gamble v. State, 257 Ga. 325, 327 (357 SE2d 792); accord Durham v. State, supra; McCormick v. State, 184 Ga. App. 687, 688-689 (362 SE2d 472); Killens v. State, 184 Ga. App. 717, 720 (362 SE2d 425); Evans v. State, 183 Ga. App. 436, 440 (359 SE2d 174). Because the U. S. Supreme Court has cautioned us that “ ‘the trial judge’s findings in the context under consideration here largely will turn on evaluation of credibility ... a reviewing court ordinarily should give those findings great deference.’ ” Hillman v. State, 182 Ga. App. 47, 48 (354 SE2d 673).

We should consider that basically “Batson stands for the principle that a prosecutor may not strike a black juror . . . because of his race.” Ford v. State, 257 Ga. 661 (362 SE2d 764). Not only was the challenge here not based upon race, but upon the fact that the juror knew the defendant, which is a racially-neutral basis, and the trial court found no merit to the motion. That finding is due great deference and “will be affirmed unless clearly erroneous.” Gamble, supra. The trial court’s ruling cannot be found clearly erroneous when the challenge is not based upon racial grounds, but upon the racially-neutral grounds that prosecutors use every day in every court of this state. See Mincey v. State, supra; Durham, supra; McCormick, supra; Killens, supra; Evans, supra; Hillman, supra.

This enumeration is without merit.

3. The appellants allege error in the refusal of the trial court to grant a mistrial after a police officer responded to the question: “Did you do anything else after that? A. On the 3rd of June, I asked Jones and Glanton if they wanted to make a statement, both declined to make a statement.” Appellants’ counsel objected and moved for a mistrial, which was denied. “Improper reference to a defendant’s silence, however, does not automatically require reversal.” Hill v. State, 250 Ga. 277, 283 (295 SE2d 518). Here, as in Williams v. State, 183 Ga. App. 281, 282 (358 SE2d 629), the information was “inadvertently elicited,” and the determination of whether this was harmful or harmless error must be determined when “juxtaposed against the strength of the evidence of defendant’s guilt. Sullivan v. Alabama, 666 F2d 478, 485 (11th Cir. 1982).” Hill, supra at 283. In the instant case, Glanton, Jones and Tim Hightower were jointly indicted for the burglary. Hightower testified for the State and identified Glanton and Jones as participating with him in the actual burglary. Four of the stolen tires were found under Jones’ father’s house and two on Jones’ father’s truck. When the tires were discovered, Jones’ father told the officer the tires on his truck were given to him by his son. Three of the stolen tires were found on Glanton’s car. Both Glanton and Jones denied participating in the burglary and said Hightower was the source of the tires. We find no reversible prejudice in the improper reference to the appellants’ silence, particularly when the trial court instructed the jury to disregard such testimony.

Decided November 10, 1988 —

Rehearing denied December 5, 1988.

W. Benjamin Ballenger, for appellant (case no. 77164).

Carlton H. Vines, for appellant (case no. 77165).

David L. Lomenick, Jr., District Attorney, Susan R. Sarratt, As sistant District Attorney, for appellee.

Judgments affirmed.

Deen, P. J., Parley, Sognier, Pope and Beasley, JJ., concur. McMurray, P. J., Banke, P. J., and Benham, J., concur in part and dissent in part.

Banke, Presiding judge,

concurring in part and dissenting in part.

I concur in Divisions 1 and 3 of the majority opinion but dissent to Division 2. As acknowledged by the majority, the state was required to articulate a racially neutral explanation for its decision to strike all the black jury panel members. See Durham v. State, 185 Ga. App. 163, 166 (363 SE2d 607) (1987); Barton v. State, 184 Ga. App. 258, 259 (361 SE2d 250) (1987). The state unquestionably met this burden with respect to the two black panel members who proclaimed a personal friendship with Glanton. However, the third black panel member merely stated that “she knew [Glanton] by sight.” When Glanton’s counsel observed that the state had not used a peremptory strike against a white juror who had said the same thing, the state’s attorney simply responded that her decision to strike the black juror had not been racially motivated, without offering any further explanation.

In Batson v. Kentucky, 476 U. S. 79, 98 (106 SC 1712, 90 LE2d 69) (1986), the Supreme Court held that mere denial of discriminatory intent will not suffice to rebut a prima facie showing of racial discrimination in the exercise of peremptory strikes. Because I do not believe the state met its burden of articulating a racially neutral reason for striking each of the three black jury panel members in this case, I would reverse Glanton’s conviction.

I am authorized to say that Presiding Judge McMurray and Judge Benham join in this opinion.


author: McMurray, Presiding Judge.

text:
    77185.
    DRIVER v. M & O, INC.
    (376 SE2d 220)
   McMurray, Presiding Judge.

William W. Driver (“claimant”) filed a claim with the State Board of Workers’ Compensation to recover benefits from M & 0, Inc. (“M & 0”) for injuries he allegedly sustained while in the employment of M & 0. In its response, M & 0 stated that it “is not and has never been claimant’s employer. Claimant was at all times relevant to this claim an employee of Mr. Earl Hall . . . , who was a subcontractor for M & 0, Inc., and who should be added as a party to this action.”

At a hearing, claimant asserted that he “is a statutory employee” under OCGA § 34-9-8 (a). This Code subsection provides that “[a] principal, intermediate, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of his subcontractors engaged upon the subject matter of the contract to the same extent as the immediate employer.”

M & 0 complained that claimant “should have given [it] at least reasonable notice [before the hearing] that it was a statutory employer claim.” Nonetheless, M & O reiterated its admission via stipulation “that while in the employment of Earl Hall who was the subcontractor for M & 0, Incorporated, working on a job for M & O, Incorporated, that [claimant] did apparently fall and hurt himself.” The Administrative Law Judge ignored the stipulation and considered evidence regarding claimant’s relationship with his co-workers. As a result, the Administrative Law Judge entered an order and denied claimant’s claim based on a finding that claimant was in “an equal partnership” with “Earl Hall and Joe List” and determined that claimant was a subcontractor of M & O, not a statutory employee. The State Board of Workers’ Compensation adopted the holding of the Administrative Law Judge and the superior court affirmed the award. Claimant then filed an application for appeal with this court and we granted an appeal to determine whether the Administrative Law Judge erred in ignoring M & O’s stipulation. Held:

“The stipulation was entered between the parties in open court. Accordingly, the stipulation was conclusive so as to preclude the introduction of contradictory evidence. Grizzle v. Fed. Land Bank, 145 Ga. App. 385, 389 (244 SE2d 362); School Boy Sportswear Corp. v. Cornelia Garment Co., 106 Ga. App. 99, 101 (2) (126 SE2d 248)” Food Giant v. Brown, 174 Ga. App. 485, 486 (330 SE2d 183). Consequently, the Administrative Law Judge erred in considering evidence regarding claimant’s employment status and ignoring M & O’s stipulation. It follows that the superior court erred in affirming the award of the board. See Piedmont Aviation v. Washington, 181 Ga. App. 730, 731 (2) (353 SE2d 847) and Green, Ga. Law of Evidence (3rd. ed.), pp. 421-426, § 238. The case is remanded for consideration by the finder of fact of M & O’s stipulation.

Decided November 21, 1988 —

Rehearing denied December 5, 1988.

George & George, William V. George, Lavinia B. George, for appellant.

Donald R. Foster, for appellee.

Earl Hall, pro se.

Judgment reversed and case remanded. Pope and Benham, JJ., concur.


author: Birdsong, Chief Judge.

text:
    77359, 77360.
    MARSHALL v. W. E. MARSHALL COMPANY et al.; and vice versa.
    (376 SE2d 393)
   Birdsong, Chief Judge.

Appellees/cross-appellants filed a motion for summary judgment on each of the nine counts of the complaint, and appellants/crossappellees filed a motion for partial summary judgment upon the issue of corporate “waste and management” by W. E. Marshall, Jr. The trial judge ruled in favor of appellees/cross-appellants on their motion for summary judgment with respect to counts 1, 2, 3, 5, 7, and 8 of the complaint, and denied appellants/cross-appellees’ motion for partial summary judgment.

This suit arises from the alleged acts and omissions of certain family members who at the time thereof were the corporate officers and directors of a family controlled close corporation. The defendant father, W. E. Marshall, Jr., is the majority shareholder. The nine counts of the complaint are summarized as follows: (a) Count I — breach of employment agreement and related agreements; (b) Count II — breach of fiduciary relationship by corporate officers and directors to plaintiff and other shareholders; and, corporate waste and mismanagement; (c) Count III — majority stockholder’s breach of duty of fair and equitable treatment of minority stockholders; (d) Count IV— equitable relief, including inspection of records, accounting, appointment of receiver and liquidation of corporate assets; (e) Count V— breach of statutory duties under Employee Retirement Income Security Act (ERISA) and of fiduciary duties by appellees in the management of the corporate deferred compensation plans; (f) Count VI — W. E. Marshall, Jr.’s wrongful conversion of certain shares of corporate stock of Steven E. Marshall; (g) Count VII — breach of agreement to sell corporate stock to Steven E. Marshall; (h) Count VIII— defamation and unfair competition; and (i) Count IX— attorney fees due to bad faith and stubborn litigiousness of appellees. Held:

I. Main Appeal — Case No. 77359

1. Appellants Steven Marshall et al. complain that the trial court erred in awarding appellees summary judgment as to the breach of employment contract claim in Count I of the complaint. Certainly after appellant Steven E. Marshall completed his first year of employment, his continued employment under the alleged contract of employment was for an indefinite period. Compare Fortenberry v. Hauerty Furn. Cos., 176 Ga. App. 360 (1) (335 SE2d 460), cert. den.; Floyd v. Lamar Ferrell Chevrolet, 159 Ga. App. 756 (285 SE2d 218). An employment contract for an indefinite period is terminable at will. OCGA § 34-7-1; Fortenberry, supra at 361. Thus, any oral executory promises “ ‘could not be enforced because the underlying employment contract, being terminable at will, is unenforceable.’ ” Alston v. Brown Transport Corp., 182 Ga. App. 632 (1) (356 SE2d 517), citing Ely v. Stratoflex, Inc., 132 Ga. App. 569, 571 (2) (208 SE2d 583); Buice v. Gulf Oil Corp., 172 Ga. App. 93 (1) (322 SE2d 103). Appellants’ position is without merit. We will not reverse when the trial court makes the right ruling albeit for the wrong reason. Reese Realty Co. v. Pal Realty Co., 182 Ga. App. 215 (2) (355 SE2d 125).

2. Appellants assert that the trial court erred in awarding summary judgment to appellees as to Counts II and III on the basis that appellants were required to pursue a shareholder’s derivative action upon their claims of mismanagement and waste and breach of fiduciary duty. We agree. A derivative action is not required. The facts of this case fall within the exception recognized in Thomas v. Dickson, 250 Ga. 772, 774 (301 SE2d 49) and Caswell v. Jordan, 184 Ga. App. 755 (1) (362 SE2d 769), cert. den.

Appellees, however, contend in their cross-appeal that the trial court erred by failing to find that Steven E. Marshall was estopped from bringing and prosecuting Counts II and III. We disagree. It is well-recognized that “shareholders in a corporation who participate in the performance of an act, or who acquiesce and ratify the same, are estopped to complain thereof. . . .” Pickett v. Paine, 230 Ga. 786 (2) (199 SE2d 223); Medlin v. Carpenter, 174 Ga. App. 50 (2) (329 SE2d 159). This rule presupposes that any act or acquiescence is voluntary. “The benefit of all reasonable inferences and all reasonable doubts must be given to the party opposing the motion for summary judgment.” Raccuglia v. Paine Webber, Inc., 180 Ga. App. 570, 572 (349 SE2d 803). For estoppel to govern this case, it must exist as a matter of law. “ ‘(W)here the facts relied on to establish the estoppel do not unequivocally show an estoppel in pais, the jury, and not the judge, should determine whether the facts constitute such an estoppel.’ [Cit.] ‘Estoppel is usually an issue of fact to be decided by the jury.’ ” Eiberger v. West, 247 Ga. 767 (1a) (281 SE2d 148); see Bloodworth v. Bloodworth, 225 Ga. 379 (1) (169 SE2d 150). We are satisfied that the issues of estoppel raised as to Counts II and III properly are matters to be decided by the jury. Cf., Elwell v. Nesmith, 246 Ga. 430 (2) (271 SE2d 827); Bloodworth, supra.

Appellees also assert that while officers and directors of a close corporation do have a duty to treat minority shareholders fairly and equitably (Quinn v. Cardiovascular Physicians, 254 Ga. 216 (2) (326 SE2d 460); General Information &c. Systems v. Sweeney, 176 Ga. App. 315 (335 SE2d 722)), no such obligation or duty is imposed upon a majority shareholder solely by virtue of that capacity. We disagree. “The control and management of corporations is always dictated by the majority.” Comolli v. Comolli, 241 Ga. 471, 474 (246 SE2d 278). Minority shareholders in close corporations in particular are susceptible to freeze-out by the majority shareholder. See generally 6 EGL § 15, Corporations. Under such circumstances, it would be inconsistent with the realities of the business world to impose a fiduciary relationship upon the directors and officers of a close corporation to protect minority shareholders, but not upon the majority shareholder who really controls the corporation. Thus, for example, majority shareholders must act in good faith when managing corporate affairs. 6 EGL § 117, Corporations. Further, we are satisfied that under notice pleading requirements the complaint on its four corners puts appellees on reasonable notice that W. E. Marshall, Jr.’s fiduciary relationship with minority shareholders arose also out of his position as President and Chairman of the Board of Directors of the company.

3. Appellants assert that the trial court erred in granting summary judgment as to Count VII, which alleged a breach of appellees’ oral contract to sell corporate shares to appellant Steven E. Marshall. The trial court concluded that “[t]he alleged oral contract is too vague and uncertain to be enforced.” We agree. See Casper v. Harrison Hatchery, 172 Ga. App. 35, 36 (321 SE2d 785). Moreover, “[t]hese deficiencies were not cured by performance of the plaintiff, because the agreement relied upon was so vague, indefinite and uncertain ‘as to make it impossible for courts to determine what, if anything, was agreed upon, therefore rendering it impossible to determine whether there had been performance.’ ” Bagwell-Hughes, Inc. v. McConnell, 224 Ga. 659, 662 (164 SE2d 229). Further, certain inconsistencies appear, as to the terms of this alleged oral contract in appellant Steven E. Marshall’s deposition and in one of his affidavits, which would require reasonable explanation. See generally Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680).

II. Cross Appeal — Case'No. 77360

4. Cross-appellants’ first and second enumerations of error are without merit. See Division 2, supra.

5. Cross-appellants assert that the trial court “created an anomaly” by granting the motion for summary judgment as to Counts II and III while letting Count IV stand. Suffice it to say that we reversed the trial court’s ruling as to Counts II and III. Appellants also assert estoppel as to Count IV. The issue of estoppel as to Count IV presents a jury question. See Division 2, supra.

6. Cross-appellants assert that the trial court erred in failing to find with respect to Count VI, regarding “Stock Conversion” that cross-appellee Steven E. Marshall was estopped from bringing and prosecuting Count VI, and erred in denying the motion for summary judgment as to Count VI. We are satisfied that the issue of estoppel as to Count VI presents a jury question. See Division 2, supra. The cases of Ray v. Ray, 231 Ga. 348 (201 SE2d 395); Ison v. Travis, 212 Ga. 335 (92 SE2d 518); Allen v. Allen, 146 Ga. 204 (92 SE 22) are distinguishable.

Moreover, cross-appellee Steven E. Marshall testified in his deposition that any transfer of his stock to his brother, Bryan, “was under the disguise of deception, deceit, and dishonesty . . . that was manipulated behind my back after I signed the share over to Dad. ... If that happened, it was without my knowledge, and it was deception in my signing the back for my father to take to [Pat P.] to break into three shares.”

Fraud is subtle in nature, and “slight circumstances may be sufficient to carry conviction of its existence.” McNeil v. Cowart, 186 Ga. App. 411 (1) (367 SE2d 291); Horne v. Claude Ray Ford Sales, 162 Ga. App. 329 (1) (290 SE2d 497). Where promises as to future events are made with the present intention not to perform or where the utterer knows the future event will not take place, actionable fraud can arise. Cooper v. RE/MAX North Atlanta, 186 Ga. App. 79 (1a) (366 SE2d 328). Actionable fraud may be proved by circumstantial evidence. McNeil, supra at 412. Whether the operative facts and circumstances establish actionable fraud “is a matter peculiarly within the province of a jury to determine.” Id.; Ketcham v. Franklyn Gesner Fine Paintings, 181 Ga. App. 549, 554 (353 SE2d 44).

Cross-appellants’ other enumeration of error and assertions also are without merit.

Decided November 14, 1988 —

Rehearings denied December 5, 1988

Bauer, Deitch & Raines, Gilbert H. Deitch, for appellant.

Harris, Phillips & Harris, R. Britt Harris, for appellees.

Judgment in Case No. 77359 affirmed in part and reversed in part. Judgment in Case No. 77360 affirmed.

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


text:
    77411.
    SHAHAN et al. v. SCOTT et al.
    (376 SE2d 221)
   McMurray, Presiding Judge.

Patricia Lynn Shahan and Howard Shahan (“plaintiffs”) filed an action in the Superior Court of Whitfield County against Shawn Scott and Ara Scott (“defendants”) for damages which were allegedly the result of an automobile collision between plaintiff Patricia Lynn Shahan and defendant Shawn Scott. Plaintiffs alleged that defendants “are residents of Dalton, Whitfield County Georgia . . .” and that the collision occurred “on Georgia Highway 3. . . .” Plaintiffs were unable to serve defendants within Whitfield County and discovered that defendants had left the State. Plaintiffs then filed a motion to appoint a process server and that service be made upon defendants outside the State of Georgia pursuant to OCGA § 9-11-4 (e) (2). The superior court granted this motion and appointed Ken Visage to serve defendants. Mr. Visage filed the following returns of service: “On January 30, 1988, at 1:15 p.m., I served the Defendant ARA SCOTT personally with a copy of the Complaint, summons, process and Interrogatories in the above matter, by leaving the same with GLENDA ISAACS, his ex-wife, at Route 1, Box 697, Route 37, East Lynn, West Virginia.” “On January 30, 1988, at 1:15 p.m., I served the Defendant SHAWN SCOTT personally with a copy of the Complaint, summons, process and Interrogatories in the above named matter, by leaving the same with GLENDA ISAACS, his mother, at Route 1, Box 697, Route 37, East Lynn, West Virginia, which is his residence.” Defendants subsequently filed a motion to dismiss for lack of jurisdiction over the person, insufficiency of process and insufficiency of service of process. In opposition, plaintiffs filed the affidavit of Ken Visage who deposed, in pertinent part, that he was accompanied by “a process server in Wayne County[, West Virginia] Sheriff’s Department [when he served Ms. Isaacs].” The superior court granted defendants’ motion to dismiss and this appeal followed. Held:

Decided November 21, 1988 —

Rehearing denied December 5, 1988

W. Ralph Hill, Jr., for appellants.

Campbell & Campbell, Douglas M. Campbell, for appellees.

In their sole enumeration of error, plaintiffs contend “[t]he trial court erred and has misconstrued, misapplied and misinterpreted applicable provisions of the Civil Practice Act and the Georgia Long Arm Statute in granting [defendants’] Motion to Dismiss.”

The Civil Practice Act provides that personal service outside the State of a Georgia resident “shall be made by delivering a copy of the process together with a copy of the complaint in person to the persons served.” OCGA § 9-11-4 (e) (2). Since it is undisputed that personal service was not achieved “by delivering a copy of the process together with a copy of the complaint in person to the [defendants],” service was insufficient under the Civil Practice Act. Further, Georgia’s Long Arm Statute provides that a nonresident “may be served with a summons outside the state in the same manner as service is made within the state by any person authorized to make service by the laws of the state, territory, possession, or country in which service is made or by any duly qualified attorney, solicitor, barrister, or the equivalent in such jurisdiction.” (Emphasis supplied.) OCGA § 9-10-94. Even though a deputy, authorized to serve process in Wayne County, West Virginia, was with Mr. Visage when he served Ms. Isaacs, the record does not indicate that service was made by the West Virginia process server according to the laws of that state. Accordingly, the superior court did not err in dismissing plaintiffs’ complaint for lack of personal jurisdiction over defendants and for failure of service of process. See American Photocopy Equip. Co. v. Lew Deadmore & Assoc., 127 Ga. App. 207, 208 (1) (193 SE2d 275), and KMM Indus, v. Professional Placement Assn., 164 Ga. App. 475, 476 (297 SE2d 512).

Judgment affirmed.

Pope and Benham, JJ., concur.