author: Judge Harold R. Banke.

text:
    A98A0571, A98A0572.
    AMERICAN ASSOCIATION OF CAB COMPANIES, INC. v. OLUKOYA; and vice versa.
    (505 SE2d 761)
   Judge Harold R. Banke.

This is the third appearance of this case here. The underlying action arose from a December 4, 1987 car accident in which Oluyole Pius Olukoya was injured while driving his taxi cab. Olukoya’s medical care and treatment totaled about $2,000. But in early 1988, when Olukoya requested payment for his medical bills from his no-fault insurer, the American Association of Cab Companies, Inc. (“AACCI”), payment was not forthcoming. In two demand letters, Olukoya provided the police report from the accident and attached copies of his medical bills. Initially, AACCI denied Olukoya’s claim for no-fault benefits because the medical care had not been rendered by authorized or “approved” providers. In Olukoya v. American Assn. of Cab Cos., 202 Ga. App. 251, 253-254 (2) (414 SE2d 275) (1991), we held that AACCI, as a no-fault self-insurer, acted unlawfully under OCGA § 33-34-1 et seq. in restricting claims for services to certain designated providers. Notwithstanding that ruling, AACCI still did not pay Olukoya’s medical claims. Thereafter, Olukoya refiled suit against AACCI and its president, Cheru Terefe, who with his wife owned all of AACCI’s stock. Olukoya asserted claims for the unpaid no-fault benefits, bad faith, punitive damages, RICO violations, and attorney fees.

Olukoya testified that he sustained injuries to his neck, wrist, and back from the accident and sought medical attention that same day from the Ashby Clinic. There, M. Sheikholislam, M.D. recommended x-rays of his wrist due to the pain and swelling. When Olukoya continued to experience neck and back pain, he sought treatment from Dr. Berklich, a chiropractor, and subsequently saw Gary Myerson, M.D., a board-certified physician. Dr. Myerson took x-rays and treated Olukoya for his neck and wrist problems including a ganglion cyst into which he injected a steroid. According to Dr. Myerson, he frequently saw ganglion cysts caused by trauma from such an accident. Dr. Myerson testified that AACCI never inquired about the treatment or paid his bill.

Olukoya offered evidence that: AACCI unjustifiably delayed investigating his claim, failed to keep the statutory minimum of reserves to pay claims, wrongfully denied payments and that Terefe misused funds entrusted to AACCI. At trial, an insurance industry expert with 30 years’ experience in claim processing, Wayne Rasmussen, reviewed this claim. Rasmussen testified that AACCI and Terefe had “everything they needed [in 1988] to pay at least some of the bills, if not all of them.” After examining the file and other evidence, Rasmussen determined that AACCI and Terefe deviated from industry standards by doing absolutely nothing to investigate the claim for several years.

The director of the Examinations Division for the Office of Insurance testified that AACCI was undercapitalized and failed to keep adequate financial reserves to pay claims. Lynn Birkett, a financial examiner for the Office of Insurance, discovered that Terefe had taken more than $130,000 in cash loans for his own use from AACCI reserves. Birkett testified that insurance companies are “strictly prohibited” from lending money to their officers.

The defense’s only witness was Terefe, the sole person responsible for denying Olukoya’s claim. Although Terefe asserted that it was AACCI’s procedure to verify bills before payment, he admitted that no one from AACCI ever contacted or attempted to contact Dr. Berklich, Dr. Myerson, or Westside Radiology Associates. AACCI refused to pay Dr. Myerson’s bill because Terefe believed that the cyst was not related to the accident, despite Dr. Myerson’s contrary medical opinion. Terefe offered no reason for refusing to pay the radiology bill which ruled out a wrist fracture. Terefe said he was not willing to pay any portion of Dr. Berklich’s bills because “he’s in the habit of padding bills.” Terefe refused to pay the $845 bill from Dr. Sheikholislam because he felt that doctor was neither believable nor competent. Terefe had no medical training, and yet, did not seek any independent advice about the propriety of the treatment. Terefe conceded that despite receipt of the police report, copies of the invoices for medical treatment, and demand letters, he denied the claim and continued to deny it even after this Court held that it was unlawful to designate medical providers. Olukoya, 202 Ga. App. at 254 (2).

After the jury returned a verdict for Olukoya for $1,784 in medical expenses, $3,731 in costs, a $446.06 penalty, and $69,525 in attorney fees, AACCI filed this appeal. In a cross-appeal, Olukoya contends the trial court erred by denying his request for post-trial attorney fees. Held:

Case No. A98A0571

1. In several enumerations of error, AACCI contends that the trial court committed reversible error by excluding information which AACCI claimed raised questions about the competency and credibility of Dr. Sheikholislam, one of Olukoya’s treating physicians. It is undisputed that Dr. Sheikholislam, who provided the initial treatment to Olukoya, was duly licensed to practice medicine in Georgia at the time of that treatment. However, it is also undisputed that Dr. Sheikholislam had run afoul of state medical licensing officials in Texas and Georgia both before and after the time he provided that treatment. Ultimately, Dr. Sheikholislam pleaded guilty to two federal counts for unlawfully prescribing drugs and had his Georgia medical license revoked.

Prior to trial, AACCI proffered in mass a two-inch stack of numerous exhibits. This stack of more than 350 pages included exhibits concerning Dr. Sheikholislam’s troubles with the Texas Board of Medical Examiners, a 46-count federal indictment, suspension of his DEA license, and a warrant for Dr. Sheikholislam’s arrest for failure to report to his probation officer. Nothing in the proffer specifically addressed the treatment or condition of Olukoya. Olukoya opposed the admission of these documents claiming that they were irrelevant, hearsay, prejudicial, wholesale character assassination, and improper impeachment of a witness not present for trial. The trial court determined that Dr. Sheikholislam’s subsequent federal prosecution and subsequent loss of his ability to practice medicine were irrelevant but reserved ruling on any evidence of Dr. Sheikholislam’s troubles before he treated Olukoya.

The admission or exclusion of evidence is reviewed by an abuse of discretion standard. Wood v. Browning-Ferris Indus. &c., 206 Ga. App. 707, 708 (3) (426 SE2d 186) (1992). Questions of relevance are generally matters within the trial court’s discretion, and it is not error to exclude evidence that is not related to an issue at trial. Sleeth v. State, 197 Ga. App. 349, 350 (3) (398 SE2d 298) (1990). Further, a judge may exercise discretion in excluding even otherwise relevant evidence if he finds that “ ‘ “its probative value is substantially outweighed by the risk that its admission will. . . create substantial danger of undue prejudice or of confusing the issues or of misleading the jury.” ’ (Cit.)” Kane v. Cohen, 182 Ga. App. 485, 487 (2) (356 SE2d 94) (1987).

AACCI contends that the entire exhibit, which was solely aimed at attacking Dr. Sheikholislam, was admissible as original evidence to explain its conduct in denying benefits. See Jackson v. State, 256 Ga. 536, 537-538 (3) (350 SE2d 428) (1986). We disagree.

This case was originally controlled by the Georgia No-Fault Act (OCGA § 33-34-1 et seq.) repealed by Ga. L. 1991, p. 1608, effective October 1, 1991. Under that former law, no-fault benefits became overdue if not paid within 30 days after an insurer received “reasonable proof of the fact and the amount of loss sustained.” Former OCGA § 33-34-6 (b). The failure to timely pay the principal claim for benefits subjected that insurer to a statutory penalty, attorney fees, and punitive damages where the insurer could not prove a good faith refusal to pay benefits within 60 days after proof of loss has been filed. Former OCGA § 33-34-6 (c). But see State Farm &c. Ins. Co. v. Young, 207 Ga. App. 355, 357 (427 SE2d 835) (1993); Terry v. State Farm &c. Ins. Co., 205 Ga. App. 224, 227 (422 SE2d 212) (1992).

The date on which an insurer was deemed to have received “reasonable proof of the fact and the amount of loss sustained” by its insured was that date upon which the insurer received sufficient proof from the insured to enable the insurer to verify or disprove through the exercise of reasonable diligence the basic components of the insured’s claim. Hufstetler v. Intl. Indem. Co., 183 Ga. App. 606, 608 (2) (359 SE2d 399) (1987). See Lawson v. State Farm &c. Ins. Co., 256 Ga. 285, 286 (347 SE2d 565) (1986) (purpose of statutory 30/60-day requirements was to ensure prompt payment after insurer receives proof of loss); see Strickland v. American Home Assurance Co., 186 Ga. App. 425, 428 (367 SE2d 241) (1988).

In this case, it is undisputed that AACCI received Olukoya’s demand letters and proof of loss on March 16,1988 and May 23,1988 and that on June 21, 1988, AACCI took a “firm stand” in denying the claim. Thus, Olukoya’s no-fault benefits became overdue as a matter of law 30 days after his demand and AACCI’s exposure to the 25 percent statutory penalty and reasonable attorney fees ripened after the 60-day period expired. Former OCGA § 33-34-6 (b). Under the No-Fault Act, AACCI had the burden of showing that its failure or refusal to pay the benefits at issue within 30 days was based on “reasonable cause.” Binns v. MARTA, 250 Ga. 847, 848 (301 SE2d 877) (1983) (a jury’s determination of bad faith should be upheld on appeal where there is any evidence).

Olukoya’s expert testified without contradiction that AACCI had sufficient documentation before it to know that a claim was being made in 1988. Yet, the evidence is undisputed that AACCI took no action to verify the claim or to seek out any additional information it needed to verify the claim for several years, until sometime in 1992. Such inaction and delay plainly violated the legislative intent of mandating prompt resolution of no-fault claims. Hufstetler, 183 Ga. App. at 609 (2).

Even assuming arguendo that AACCI did not realize that its initial denial of Olukoya’s claim had no legal basis as we found in Olukoya, 202 Ga. App. at 254, AACCI still failed to process the claim within 30 days after that ruling (reconsideration denied December 12, 1991). By Terefe’s own admission, he did not even bother to compíete an investigation of the merits of the medical claims after this Court’s decision in 1991, until after Olukoya refiled his complaint in September 1992: “[W]e were informed that the lawsuit was dismissed and we didn’t pursue it [an investigation of the merits].” Because AACCI failed to process the claim within 30 or even 60 days of our decision in 1991, we believe that it would violate public policy as well as the intent of the No-Fault Act to permit AACCI to utilize derogatory information it obtained years after the claim ripened. See State Farm Fire &c. Co. v. Martin, 174 Ga. App. 308, 310 (329 SE2d 577) (1985) (litigation of issue of first impression does not mean insurer denied claim in good faith or insulate insurer from bad faith penalty); Knight v. Stevens Logging, 173 Ga. App. 359, 360 (1) (326 SE2d 494) (1985) (judgment right for any reason will be upheld). Even assuming without deciding that part or all of the mega exhibit had been admissible to explain conduct as AACCI contends, the exhibit was still susceptible to being excluded on other grounds such as relevance, as the trial court found, or the improper injection of character into issue. Ivester v. State, 252 Ga. 333, 335 (2) (313 SE2d 674) (1984); Echols v. State, 174 Ga. App. 829, 830 (1) (331 SE2d 619) (1985) . Accord DeCastro v. State, 221 Ga. App. 83, 85 (1) (470 SE2d 748) (1996). See Roper v. State, 263 Ga. 201, 202 (2) (429 SE2d 668) (1993) (evidence must be competent even though admissible under OCGA § 24-3-2). At issue was whether the medical treatment for which Olukoya sought reimbursement arose from the automobile accident, not Dr. Sheikholislam’s character.

It is well established that where a document is tendered as a whole, it may be excluded in its entirety when a portion is inadmissible. A. M. Kidder & Co. v. Clement A. Evans & Co., 117 Ga. App. 346, 350 (4) (160 SE2d 869) (1968). This massive exhibit contained hearsay and irrelevant information, such as: multiple copies of subpoenas to different pharmacists, a petition by the State for the release of Dr. Sheikholislam’s psychiatric records, a subpoena to a GBI document examiner, a pretrial bond form, and an affidavit submitted to seek a sentence correction. After the trial court deemed the entire proffered exhibit inadmissible, AACCI failed to excise any documents which may have otherwise been admissible. Accordingly, we conclude that the trial court did not manifestly abuse its discretion in rejecting the exhibit in its entirety. Moore v. Graham, 221 Ga. App. 616, 617 (1) (472 SE2d 152) (1996); Kane, 182 Ga. App. at 487 (2). See American Assn. of Cab Cos. v. Egeh, 205 Ga. App. 228, 231 (7) (421 SE2d 741) (1992). To hold otherwise would effectively eviscerate the rule that OCGA § 24-3-2 is to be contained within its proper limits and applied sparingly. Teague v. State, 252 Ga. 534, 536 (1) (314 SE2d 910) (1984).

AACCI also contends that as a result of the exclusion of these documents, it was foreclosed from informing the jury that it had legitimate reasons for denying the claim. This is simply not borne out by the record. The trial court did not preclude all discussion about Dr. Sheikholislam’s treatment. On direct, when Terefe testified that he concluded that Dr. Sheikholislam was incompetent and not believable, he was not asked to explain the basis for this opinion. His counsel simply changed the subject. Later, when Terefe complained “I think I’m bound not to say the statements I would really like to answer,” the trial court advised Terefe to talk with his attorney “and if you want him to follow up on it on redirect.” This counsel did not do. We see no reason why AACCI should derive benefit from its tactical blunder in not electing to follow the court’s suggestion. See Foster v. State, 230 Ga. 186, 187 (1) (195 SE2d 902) (1973) (“ A party cannot during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.’ ”). Nor did AACCI point to anywhere in the transcript where the trial court prohibited Terefe from testifying as to why he denied the claim. See Egeh, 205 Ga. App. at 232 (7). Nor do we see where AACCI asserted that it should be permitted to present testimony on that issue separate and apart from the mass exhibit it proffered. Thus, notwithstanding AACCI’s contention to the contrary, it was not deprived of an opportunity to fully defend itself. It alone decided not to present any evidence that the doctors who treated Olukoya overcharged or provided substandard or unnecessary medical treatment. It alone opted not to call any witnesses other than Terefe, and it alone chose not to elicit more information from him.

Further, AACCI’s own evidence belies its contention that the court prevented it from presenting a defense by excluding the documents because its entire case turned on proving that Dr. Sheikholislam was incompetent. On the contrary, Terefe admitted Dr. Berklich’s treatment could be accident related, but stated that he refused to pay Dr. Berklich’s bills because he felt that doctor always overcharged. Terefe offered no specific reason for AACCI’s refusal to pay for x-rays which ruled out a wrist fracture. Terefe testified that he refused to pay Dr. Myerson’s bill because he believed Olukoya’s cyst was not accident related. This evidence all went to credibility. Having considered it, the jury obviously rejected Terefe’s version. We must respect that conclusion. See Southeastern Security Ins. Co. v. Hotle, 222 Ga. App. 161, 162 (1) (473 SE2d 256) (1996) (evidence on appeal must be construed to uphold verdict). Accordingly, the trial court did not err in denying AACCI’s motion for a new trial.

2. AACCI contends that the trial court committed reversible error by excluding its Exhibit 33. That document was a single handwritten page which purportedly indicates that Olukoya had a ganglion cyst of unknown origin at the time of his initial visit to Dr. Sheikholislam. The admissibility of this exhibit is controlled adversely to AACCI by the holding of Egeh, 205 Ga. App. at 231 (7). In that case, AACCI attempted to introduce the report of a physician’s examination of the plaintiff which concluded that the plaintiff was not injured. AACCI wanted to offer the report for the limited purpose of showing its good faith in denying benefits. Id. We upheld the exclusion of the report made by a non-testifying physician. In this case, as we found in Giles v. Taylor, 166 Ga. App. 563 (1) (305 SE2d 154) (1983), the exhibit was inadmissible hearsay.

3. Pretermitting whether dismissal is the appropriate remedy for alleged violations of Uniform Superior Court Rule (“USCR”) 3.1, we find no merit to AACCI’s contention that Olukoya wilfully violated this rule. Although the record does show that Olukoya dismissed his complaint in superior court and refiled in state court to avoid being forced to trial before he was ready, we do not find that this is the type of conduct USCR 3 was designed to prevent. Compare Hicks v. State, 231 Ga. App. 552, 555 (2) (499 SE2d 341) (1998). The rule contemplates a system of assigning cases “designed to prevent any person’s choosing the judge to whom an action is to be assigned. . . .” USCR 3.1. Although Olukoya’s action affected the judge to whom the case was assigned, he did not attempt to choose the judge who would hear his case.

4. AACCI contends that the trial court erred in refusing to reduce or disallow the award of attorney fees. The amount, if any, of attorney fees recoverable because of bad faith by an insurer requires jury determination. OCGA § 33-4-6. A judgment for bad faith and attorney fees should be affirmed if there is any evidence to support it, unless it can be said as a matter of law that there was a reasonable defense which vindicates the good faith of the insurer. First Financial Ins. Co. v. American Sandblasting Co., 223 Ga. App. 232, 233 (2) (477 SE2d 390) (1996). In this case, there was evidence to support the judgment. AACCI failed to follow insurance industry procedures for contesting coverage and failed to maintain proper reserves to pay claims. Terefe admitted that he used AACCI’s funds for himself. AACCI failed to investigate any of the medical bills for over four years and never attempted to verify some of them. Accordingly, the judgment was proper. St. Paul Fire &c. Ins. Co. v. Snitzer, 183 Ga. App. 395, 397 (2) (358 SE2d 925) (1987).

Decided July 16, 1998

Reconsiderations denied July 31, 1998

Sidney L. Moore, Jr., for appellant.

Catabro & Jennette, Michael M. Catabro, Hicks, Casey & Barber, Mark A. Barber, for appellee.

Nor was the amount of attorney fees awarded erroneous. Notwithstanding AACCI’s claim to the contrary, both of Olukoya’s attorneys differentiated the time they devoted to prosecuting the bad faith claim and to the unsuccessful RICO claim. Both explicitly testified as to their exact time expended and their rates for billing that time.

Case No. A98A0S72

In a cross-appeal, Olukoya claims that he is entitled to post-trial attorney fees incurred in defending the judgment. We agree. All of the work done on a case of this type, including work done on appeal, may be considered in awarding attorney fees. First Financial Ins. Co. v. Rainey, 195 Ga. App. 655, 661 (6) (394 SE2d 774) (1990), overruled on other grounds, 261 Ga. 52 (401 SE2d 490) (1991). Consequently, we reverse the trial court’s judgment denying post-trial attorney fees and direct the trial court to conduct further proceedings upon the return of the remittitur for the purpose of assessing such attorney fees. Id.

Judgment affirmed in Case No. A98A0571. Judgment reversed and case remanded with direction in Case No. A98A0572.

Johnson, P. J., and Smith, J., concur.

       Although AACCI takes issue with the fact that Dr. Sheikholislam treated Olukoya with three injections of steroids, a review of the 46-count indictment shows that none of the counts involved the unlawful prescription of steroids. Many steroids, including ACTH, with which Olukoya was treated, are not regulated as controlled substances. OCGA § 16-13-27.1.

       AACCI’s Exhibit 46 was a voluminous document with numerous exhibits from the Composite State Board of Medical Examiners’ proceeding against Dr. Sheikholislam. Admission of investigative records of the Board appear to be precluded by OCGA § 43-34-37 (d) (“no part of any such record shall be released for any purpose other than a hearing before the board; nor shall such records be subject to subpoena”). See Kutner v. Davenport, 257 Ga. 456, 457 (360 SE2d 586) (1987).


source: Caselaw Access Project

license: Public Domain

text:
    A98A0620.
    GAY v. THE STATE.
    (505 SE2d 29)
   Judge Harold R. Banke.

Christopher Gay was convicted of possession with intent to distribute cocaine, possession with intent to distribute marijuana, felony possession of marijuana, possession of a firearm during the commission of a crime and possession of a firearm by a convicted felon. He enumerates six errors on appeal.

This case arose after a MARTA supervisor observed Gay crossing a street near the Five Points station with a pistol butt protruding from one half to three quarters of an inch from the pocket of his shorts. Police officers responding to the supervisor’s call for assistance approached Gay. While they patted him down, Gay attempted to flee. An officer quickly tackled Gay and handcuffed him. As the officer pulled Gay from the ground, he noticed a bag under Gay which contained 43 small bags of marijuana, one medium sized bag of marijuana, 20 rocks of crack cocaine of an estimated value of $15 to $20 each, and $1,132.64. Held:

1. Gay contends that the trial court violated his right to a fair trial by refusing to allow defense counsel to comment during closing on the State’s failure to produce one of the arresting officers, Sergeant Durham. He relies on Morgan v. State, 267 Ga. 203, 204 (2) (476 SE2d 747) (1996), which held that both defendants and the State are entitled to comment in closing argument about the opposing side’s failure to produce certain witnesses. Morgan, which overruled Wilson v. Zant, 249 Ga. 373, 384-385 (4) (290 SE2d 442) (1982), on that ground, was decided several months after Gay’s trial.

Although Morgan has retroactive application, it does not require reversal here because Gay failed to show harm from this error. Smith v. State, 268 Ga. 860, 862 (2) (494 SE2d 322) (1998). Given the testimony of the other witnesses to Gay’s arrest, it is highly unlikely that Gay’s inability to comment on the State’s failure to produce the officer would have affected the outcome of this trial. Id.

2. The trial court did not err in denying Gay’s motion to suppress evidence of his arrest. The record clearly refutes Gay’s contention that an unreliable, anonymous tipster provided the information which led to his arrest. The MARTA supervisor, formerly a police officer, radioed MARTA police after noticing the pistol’s butt peaking from Gay’s shorts. Goodman v. State, 210 Ga. App. 369, 370 (436 SE2d 85) (1993) (in Terry context, an informant’s reliability is irrelevant).

This information provided reasonable suspicion that Gay was carrying a concealed weapon sufficient to justify a Terry stop. Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968); State v. McFarland, 201 Ga. App. 495, 496 (411 SE2d 314) (1991) (“[A] founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.”). Although Georgia law does not prohibit carrying a pistol in a pants pocket with the butt exposed, the record here shows that the gun was not sufficiently visible to allow others to see that he was armed and dangerous. Moody v. State, 184 Ga. App. 768, 769 (1) (362 SE2d 499) (1987); Goss v. State, 165 Ga. App. 448, 449 (1) (301 SE2d 662) (1983). The record shows that the MARTA supervisor prided himself on his abilities to observe people and that less than an inch of the butt was visible. Compare Goss, 165 Ga. App. at 448 (weapon not concealed when its handle plainly protruded from pocket); McCroy v. State, 155 Ga. App. 777, 778 (2) (272 SE2d 747) (1980) (pistol with butt end “sticking out” of pocket not concealed). Neither a bus driver to whom the supervisor initially communicated his observation nor the arresting officer saw the gun. See Gainer v. State, 175 Ga. App. 759, 760 (334 SE2d 385) (1985) (pistol bulging in pocket concealed).

Notwithstanding Gay’s assertion to the contrary, the State’s response to the motion to suppress was not grounded on hearsay. The arresting officer, who was “two or three steps behind” the nontestifying Sergeant Durham, stated he and Durham stopped Gay for a pat-down for weapons based on the supervisor’s report of a suspected weapon. In these circumstances, we cannot say the Terry stop was improper.

3. We must reject Gay’s contention that the similar transaction evidence admitted at trial was not sufficiently similar to the crimes at issue. In the similar transaction, Gay was arrested for possession of cocaine with intent to distribute after an officer in the downtown area observed him taking money and distributing bags of crack cocaine. Officers found 47 individual bags of crack and $292 in cash. The evidence was admitted to show bent of mind, intent, and course of conduct. The crimes at issue here occurred in the same area of town, and involved in part the same illegal drug in similar packaging, and significant amounts of money. In light of these similarities, we cannot say the admission of this evidence constituted an abuse of discretion. Anderson v. State, 228 Ga. App. 617, 620 (2) (492 SE2d 252) (1997).

In a supplemental brief, Gay seeks to challenge the trial court’s failure to sua sponte give a contemporaneous limiting instruction at the introduction of similar transaction evidence. His enumeration stated that “the trial court violated his right to a fair trial by allowing the State to introduce an alleged similar transaction.” Because the contemporaneous instruction issue was not raised in the enumeration, we decline to reach it. Guest v. State, 229 Ga. App. 627, 628 (1) (494 SE2d 523) (1997) (briefs cannot be used to enlarge the enumerations of error).

4. Gay maintains that a competency examination he underwent to determine his fitness to stand trial was inadequate and perfunctory. The examination revealed that Gay was essentially malingering.

Criminal defendants have a constitutional right not to be tried while incompetent. Baker v. State, 250 Ga. 187, 190 (1) (297 SE2d 9) (1982). Courts therefore must inquire into competency and hold a hearing on the issue, if evidence raising the issue of incompetence becomes apparent. Baker, 250 Ga. at 190. Factors such as a history of irrational behavior, the defendant’s demeanor at trial, and prior medical opinions are relevant to deciding whether this inquiry is necessary. Brogdon v. State, 220 Ga. App. 31, 33 (1) (467 SE2d 598) (1996). Upon receiving information which, objectively considered, should reasonably raise a doubt about the defendant’s competence, trial courts should conduct a civil proceeding before a special jury. Id.

Decided June 10, 1998

Reconsideration denied July 31, 1998.

Monique D. Moyse, for appellant.

Paul L. Howard, Jr., District Attorney, for appellee.

Here, such procedures were unnecessary because the trial court did not receive information which reasonably raised a doubt regarding Gay’s competence. The record shows that on the day of trial Gay was unresponsive to his attorney’s questions and adopted a “distant look in his eyes.” Based upon this limited evidence, and the fact that Gay had previously been admitted to a psychiatric hospital, the trial court agreed to a competency evaluation. The psychiatrist who evaluated Gay found his responses to her questions “suggestive of malingering.” Gay’s purported symptoms, notwithstanding the efficacy of the psychiatrist’s report, were insufficient to raise bona fide doubts about Gay’s competence. Johnson v. State, 209 Ga. App. 514, 515 (2) (433 SE2d 717) (1993).

5. The evidence, viewed in the light most favorable to the verdict, was sufficient to permit the jury to find all the essential elements of the crimes charged. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). The record shows that the MARTA supervisor observed the butt of a pistol peaking from Gay’s pocket. He also noticed that Gay was carrying a bag. When Gay was tackled, one of the officers found the gun; the bag containing the currency and contraband was beneath Gay. The arresting officer testified that the cocaine and the small packages of marijuana were of a sufficient amount and were packaged in a way indicative of distribution. Williams v. State, 199 Ga. App. 544, 545 (1) (405 SE2d 539) (1991). Further, the State presented evidence of Gay’s prior felony conviction. Such evidence satisfied the requisites of Jackson v. Virginia.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       The possession charge was merged into the marijuana distribution charge for sentencing purposes.


author: Pope, Presiding Judge.

text:
    A98A0635.
    HILL v. MAYOR & ALDERMEN OF THE CITY OF SAVANNAH.
    (505 SE2d 35)
   Pope, Presiding Judge.

Plaintiff Bobby L. Hill appeals from the trial court’s grant of summary judgment to defendants, the Mayor and Aldermen of the City of Savannah, Georgia. Finding no issue of material fact which would preclude summary judgment in favor of defendants in this case, we affirm.

Construed most favorably to plaintiff, see Mull v. Mickey’s Lumber & Supply Co., 218 Ga. App. 343, 344 (1) (461 SE2d 270) (1995), the facts of this case show that on October 20, 1975, plaintiff deeded to his father, Birl D. Hill, Sr., certain real property, including a residence, located at 923 West 37th Street in Savannah. Subsequently, tax notices for 1976 were mailed to plaintiff’s father at the above address. It is undisputed, however, that the taxes on the property became and remained delinquent. Consequently, on August 17, 1979, the Chatham County Tax Commissioner seized and levied upon the property for the delinquent taxes. After providing plaintiff’s father and any tenants in possession with the notice required by law, on October 2, 1979, the Tax Commissioner offered the property for sale to the public, and on that same date, sold it to Chatham County for the amount of the delinquent taxes plus applicable costs, as authorized by OCGA § 48-4-20 (a) and (b).

On May 21, 1986, Chatham County filed a bar of redemption regarding its purchase of the property in accordance with OCGA § 48-4-45 (a). The bar of redemption indicates that it was served on all persons of record having an interest in the property, as well as any occupants of the property, as is required by OCGA § 48-4-45 (a) (1) (A) and (B). Shortly thereafter, plaintiff requested that Chatham County allow him until approximately January 4,1987 to redeem the property on his father’s behalf and pay any delinquent taxes and costs that had accrued on the property up until that time. Neither plaintiff nor anyone else, however, ever made such a payment, and the property was never redeemed from Chatham County.

On or about March 29, 1991, the residence located on the property was extensively damaged by fire. Following an inspection of the property, defendants determined that the residence was open, vacant and unsafe. After conducting a title search on the property, during which the record title holder was determined to be Chatham County, defendants notified Chatham County of the condition of the residence and sought permission to demolish the residence. By letter dated July 3, 1991, Chatham County authorized the demolition, and by October 21, 1991, the residence had been demolished, with the costs of the demolition being forwarded to the county.

On October 5, 1993, plaintiff, individually and on behalf of the heirs of his father, who had died intestate on May 2, 1989, filed suit against defendants. In his complaint, plaintiff claimed that defendants were liable for having deprived plaintiff and his family of the use and enjoyment of the residence and property in question in violation of their federal and state constitutional rights. In answering plaintiff’s complaint, defendants denied liability and asserted as an affirmative defense that plaintiff lacked standing to maintain the suit because Chatham County held title to the property in question at the time of its demolition. Thereafter, defendants filed a motion for summary judgment based on the above affirmative defense. Concluding that plaintiff lacked the standing to maintain his suit, the trial court granted defendants’ motion.

On appeal, plaintiff contends that because he has collaterally challenged the validity of the tax deed issued to Chatham County on the property on the ground that the deed was the result of an excessive tax levy, there is an issue of material fact regarding whether his father’s estate, rather than Chatham County, owned the property on the date of the demolition, and thus, an issue of material fact regarding his standing to maintain the lawsuit against defendants in his capacity as an heir to and representative of his father’s estate. We cannot agree.

Although it is true that under some circumstances a tax deed may be voided upon a determination that the deed was issued as the result of an excessive levy, see Craig v. Arnold, 227 Ga. 333 (180 SE2d 733) (1971); Pierce v. Gaskins, 168 Ga. App. 446, 449 (5) (309 SE2d 658) (1983), under OCGA § 48-4-47 (a), after notice of a bar of redemption has been filed, no action challenging the validity of the tax deed referred to in the bar of redemption may “be filed, allowed, sanctioned, or maintained . . . unless and until the plaintiff in the action pays or legally tenders to the grantee in the [tax] deed or to his successors the full amount of the redemption price for the property. . . .” The only exceptions to the above arise when it clearly appears that: (1) the taxes for which the tax sale at issue was held were not due at the time of the sale; or (2) the required service or notice of the bar of redemption was not given. OCGA § 48-4-47 (b).

In the case at bar, it is undisputed that plaintiff never has tendered the redemption price, or any sum for that matter, to Chatham County regarding the property at issue. Further, there is nothing in the record to indicate that the taxes, which formed the basis for the tax sale, were not due at the time of the sale, or that Chatham County failed to provide proper notice or service of its bar of redemption to any person entitled to such notice or service. Under such circumstances, plaintiff is barred by OCGA § 48-4-47 from collaterally attacking the validity of Chatham County’s ownership of the property at the time of the demolition in the present suit. In the absence of any legitimate or valid challenge to the county’s ownership of the property at the time of the demolition in this case, plaintiff lacks the standing to challenge Chatham County’s authorization of the demolition, as well as defendants’ reliance on that authorization and subsequent demolition of the residence in question. Accordingly, the trial court properly granted summary judgment to defendants.

Decided July 16, 1998

Reconsideration denied July 31, 1998

Randall A. Schmidt, for appellant.

Lester B. Johnson III, for appellee.

Judgment affirmed.

Beasley and Ruffin, JJ., concur.


text:
    A98A0723.
    DOUGLAS et al. v. MADDOX et al.
    (505 SE2d 43)
   Pope, Presiding Judge.

Plaintiffs Overnite Transportation Company and three of its management employees, James Douglas, Robert Edwards and Gary McGuire, brought a libel action against defendants: International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America; Teamster’s Local No. 728; AFL-CIO; and several officials and representatives of these organizations, namely, defendants Keith Maddox, Doug Mims and Donald Scott. In their complaint, plaintiffs alleged that defendants, through Maddox, who was a union negotiator hired by the defendant organizations, had libeled them by distributing three false fliers to several hundred of Overnite’s rank- and-file employees during a union organization drive at Overnite’s Atlanta facilities. The first of the fliers consisted of a letter drafted by Maddox, which was written on Teamster letterhead and addressed to Douglas, stating in part that Overnite officials, including Douglas, had “been formally indicted [in Lexington, Kentucky] by the U. S. Government of massive violations of Federal Labor Laws.” The letter went on to state that “[i]n fact, Douglas, Edwards and McGuire were all named in the Lexington indictment.” The second flier Maddox distributed consisted of a Teamster press release, the back of which stated: “THE FEDERAL GOVERNMENT HAS INDICTED OVERNITE OFFICIALS, INCLUDING JIM [DOUGLAS], IN LEXINGTON, INDY, SACRAMENTO, CINCINNATI, KC & ELMSFORDÜ” (Emphasis in original.) The third flier prepared and distributed by Maddox also was drafted on Teamster letterhead and invited Overnite’s employees to “[c]ome hear why Mr. Douglas, Bobby Edwards and Gary McGuire sued the Union for saying they were indicted by the U. S. Government for massive violations of Federal Labor [Laws].” It is undisputed that no criminal charges ever had been filed against any of the plaintiffs by the federal government. National Labor Relations Board, however, had filed a civil complaint against plaintiffs alleging labor law violations shortly before the fliers were distributed.

Defendants answered plaintiffs’ complaint, denying liability, and subsequently moved for summary judgment. Plaintiffs appeal from the trial court’s grant of defendants’ motion. Upon review, we conclude that summary judgment in defendants’ favor was improper and reverse the trial court.

1. Under Georgia law, “[a] libel is a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule.” OCGA § 51-5-1 (a). Because this case arose within the context of a labor dispute, however, plaintiffs may not avail themselves of Georgia’s libel law, or the remedies thereunder, unless they can show by clear and convincing evidence that the complained of “statements were circulated with [actual] malice.” See Linn v. United, Plant Guard Workers &c., 383 U. S. 53, 64-65 (86 SC 657, 15 LE2d 582) (1966) (applying the malice standard set forth in New York Times Co. v. Sullivan, 376 U. S. 254 (84 SC 710, 11 LE2d 686) (1964), to cases involving labor negotiations and disputes). In the case at bar, the trial court ruled that defendants were entitled to summary judgment as a matter of law because plaintiffs could not demonstrate sufficient evidence of actual malice on Maddox’s part, and thus on the part of any of the defendants, in publishing the fliers. We cannot agree.

In deciding motions for summary judgment in cases such as this, the non-moving party’s evidence must be believed, and all justifiable inferences arising therefrom must be construed in that party’s favor. Barber v. Perdue, 194 Ga. App. 287, 289 (390 SE2d 234) (1990). This standard is the same under both OCGA § 9-11-56 and FRCP 56. Id.; Anderson v. Liberty Lobby, 477 U. S. 242, 255 (106 SC 2505, 91 LE2d 202) (1986). Therefore, “[t]he question of law before us is whether, in this posture, viewing all the direct and circumstantial evidence and reasonable inferences in plaintiffs’] favor, a jury could find by clear and convincing evidence that [Maddox published the fliers] with knowledge that [the information they contained] was false or with reckless disregard of whether [the information contained in them] was false or not.” (Citation and punctuation omitted.) Barber, 194 Ga. App. at 289. See Linn, 383 U. S. at 65.

The “clear and convincing evidence” standard to be used in cases like this definitely is more stringent than the “preponderance of the evidence” standard used in typical libel actions. Barber, 194 Ga. App. at 289. It requires a higher quality and amount of proof on the part of a plaintiff before recovery can be allowed. Id. Nevertheless, even in cases where this heightened standard is applicable, “it has been recognized that proof of actual malice ‘does not readily lend itself to summary disposition!.]’ Hutchinson v. Proxmire, 443 U. S. 111, 120, n. 9 (99 SC 2675, 61 LE2d 411) (1979).” Id. The reason for this is that proof of actual malice brings into question a defendant’s state of mind, which can be determined based upon inferences drawn from objective circumstances as well as direct evidence provided by a defendant in a given case. Id.

With the above in mind, we note that in this case the evidence, both direct and circumstantial, , when construed in plaintiffs’ favor, shows that Maddox was a veteran union organizer, having conducted at least 15 prior organization drives for the Teamsters. His goal during the drive at Overnite’s Atlanta facilities clearly was to gain an advantage over Overnite and its management, forcing them to negotiate a contract favorable to the defendant organizations and their members. The evidence further shows that prior to his publication of the fliers, unlike most laymen, Maddox was familiar with National Labor Relations Board proceedings of the type that were pending against plaintiffs, and Maddox has admitted that he knew such proceedings were civil in nature. Maddox nevertheless used the terms “indicted” and “indictment” in the fliers even though he knew that they had a criminal meaning, and plaintiffs have presented documentary evidence from which a jury could conclude that most laymen, including Maddox’s target audience, would place such a meaning on those terms.

Under such circumstances, we conclude that a jury could determine by clear and convincing evidence that Maddox, and thus the other defendants, had published the fliers either knowing that the information they contained was false or with a reckless disregard for whether the information the fliers contained was true or false, and thus, that defendants had acted with actual malice. See Linn, 383 U. S. at 64-65; Barber, 194 Ga. App. at 289-291. Accordingly, the trial court erred in granting summary judgment to defendants.

2. We find no merit to defendants’ contention that the trial court’s ruling should be affirmed because the information contained in the fliers was in fact true. Based on the evidence set forth in Division 1, there clearly is an issue of material fact regarding this matter because the terminology in question, when considered within the context of the fliers, clearly is capable of two interpretations, one asserting criminality and the other not. In such situations, “it is for the jury to say, under all the circumstances surrounding [the] publication, including extraneous facts admissible in evidence, which of the two meanings would be attributed to it by those to whom [the publication] is addressed or by whom it may be read.” (Citation and punctuation omitted.) Fiske v. Stockton, 171 Ga. App. 601, 602 (1) (320 SE2d 590) (1984). Moreover, in this case, defendants have previously admitted that the fliers erroneously stated that plaintiffs had been formally indicted.

Decided July 16, 1998

Reconsideration denied July 31, 1998

Sutherland, Asbill & Brennan, Elizabeth V. Tanis, for appellants.

Stanford, Fagan & Giolito, Robert S. Giolito, for appellees.

Judgment reversed.

Beasley and Ruffin, JJ, concur.


author: McMurray, Presiding Judge.

text:
    A98A0878.
    DEPARTMENT OF TRANSPORTATION v. WHITFIELD et al.
    (505 SE2d 247)
   McMurray, Presiding Judge.

Proceeding under OCGA § 32-3-4, the condemnor-appellant Department of Transportation (“DOT”) filed a declaration of taking to acquire “fee simple title to a right of way . . .” consisting of 0.082 acres of land, to “widen and reconstruct State Route 1 from the end of existing 5 lanes to Chichamauga [sic] Park Bypass. . . .” Named as owners were condemnee-appellees Stanley A. Whitfield and Fina Oil & Chemical Company (“Fina”), as well as Pioneer Bank, a non-party to this appeal. Estimated compensation of $145,825 was paid into the registry of the Clerk of the Superior Court of Walker County, Georgia. Fina answered, alleging it is the owner only of “the primary FINA sign and poles,” demanding $1,489.65 for the loss of its personalty.

Dissatisfied with the estimate of compensation, allegedly pursuant to OCGA § 32-3-14, Stanley A. Whitfield “appealed] to the Court and jury.” At the same time, he also filed a “MOTION FOR MORE DEFINITE STATEMENT, OR, IN THE ALTERNATIVE, MOTION TO DISMISS.” Specifically, Stanley A. Whitfield complained the declaration of taking does not set forth a valid legal description of the property taken or damaged; “does not set forth such other facts as are necessary for a full understanding of the cause, to-wit: the legal description is inadequate by a survey of meets [sic] and bounds of the property taken, that remains and the whole”; and does not describe the property or interest taken including realty, personalty, fixtures and consequential damages applicable to each. The superior court agreed in part that “Plaintiff [DOT] must describe more definitely all the property or interests to be taken including realty, personalty, and fixtures . . .,” and granted condemnee Stanley A. Whitfield’s motion in part, requiring DOT to submit a more definite petition. Within ten days, the superior court certified its order for immediate review. DOT’s application for interlocutory appeal was granted by this Court and a timely notice of appeal was filed. Held:

In four related enumerations of error, DOT contends the superior court’s grant of condemnee’s motion for a more definite statement is erroneous because the original declaration of taking fully complies with OCGA § 32-3-5; because condemnee Whitfield failed to object to the taking under OCGA § 32-3-11; because the court held DOT to a heightened standard of pleading, not required by the law nor intended by the legislature; and because the superior court’s order “directly conflicts with all notions of public policy established by the legislature regarding the ability of governmental entities to [assert] their powers of eminent domain.” We affirm.

1. “[P]rivate property shall not be taken or damaged for public purposes without just and adequate compensation being first paid.” Ga. Const, of 1983, Art. I, Sec. Ill, Par. I (a). “No constitution has or can have a plainer provision on this subject than our own, and the provision is one not to be violated or evaded either by the legislature or the courts.” Oliver v. Union Point &c. R. Co., 83 Ga. 257, 261 (1) (9 SE 1086).

2. The legislature established the contents of the condemnation petition in OCGA § 32-3-5 (a), which provides in part the petition “shall set forth: (1) The facts showing the right to condemn; (2) The property or interests to be taken or damaged', (3) The names and residences of the persons whose property or interests are to be taken or otherwise affected, so far as known;. . . [and] (5) Such other facts as are necessary for a full understanding of the cause. . . .” (Emphasis supplied.) The nature of the “property or interests to be taken or damaged . . .” is not limited by the express terms of OCGA § 32-3-5 (a) (2). “[T]he right of the owner to recover for damage done his property [is] inclusive of damages to every species of property, real and personal, corporeal and incorporeal.” Bowers v. Fulton County, 221 Ga. 731, 734 (2), 737 (146 SE2d 884).

3. “ ‘In assessing the nature of the proceedings under (OCGA § 32-3-1 et seq.) it becomes obvious that the general notion of notice pleading under our Civil Practice Act does not apply to condemnation proceedings. The petition is not a mere pleading but an instrument which passes title when filed and (estimated) just and adequate compensation is paid into court under (OCGA § 32-3-7 (a)).’ [Cit.T Adams v. Cobb County, 184 Ga. App. 879, 880 (363 SE2d 260). “[T]o ensure due process to the property owner, the statute must be strictly conformed to by the condemning body.” Dorsey v. Dept. of Transp., 248 Ga. 34, 37 (279 SE2d 707). In our view, the superior court was authorized to direct DOT as condemnor to recast the declaration of taking to include reasonably foreseeable personalty and fixtures, and did not abuse its discretion in so doing. See OCGA § 32-3-11 (b) (4).

Decided July 31, 1998

Thurbert E. Baker, Attorney General, Cathy A. Cox-Brakefield, Assistant Attorney General, Dwyer, White & Sapp, Anne W. Sapp, Ronald R. Womack, for appellant.

Coppedge, Leman & Ward, Warren N. Coppedge, Jr., for appellees.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


author: Judge Harold R. Banke. Beasley, Judge,

text:
    A98A0904.
    M & M MOBILE HOMES OF GEORGIA, INC. v. HARALSON.
    (505 SE2d 249)
   Judge Harold R. Banke.

Ozie H. Haralson sued M & M Mobile Homes of Georgia, Inc. d/b/a Destiny Home Center (“M & M”), a dealer of manufactured housing and Destiny Industries, Inc., a manufacturer of the same. Some of Haralson’s purported problems related to the manufacture of the home and others pertained to its set-up by the dealer, M & M.

Destiny Industries, Inc. duly answered the complaint in proper fashion. However, M & M’s response, although timely filed with the court, was a two-page letter on Destiny Home Center’s stationery from M & M’s lot manager, Hardy Ogltree, addressed to Haralson’s lawyer. Ogltree’s letter denoted itself as “Exhibit A Response” and specifically referred to “Ozie Haralson” and “File No. 96CV33251E,” the case number of Haralson’s complaint. In some detail, the letter responded in paragraphs numbered 1-13 to each of the 13 grievances listed as Exhibit A to Haralson’s complaint. This document addressed each specific claim including the slab, refrigerator opening, carpet seam, countertop problem, etc.

Apparently based on the conclusion that a meager answer is synonymous with no answer, M & M was not served with any notice of the trial or with a copy of any motion. See OCGA § 9-11-5 (a). Without a hearing to determine whether this document constituted “an answer” within the meaning of the Civil Practice Act (“CPA”), the trial court held M & M in default.

When the case proceeded to trial against the two defendants only Destiny Industries was present. In preliminary instructions, the trial court advised the jury that due to M & M’s failure to respond or to file any answer to the lawsuit, M & M was “liable as a matter of law.” The court instructed the jury that by virtue of the default, M & M had admitted its liability. During the trial, Destiny Industries conceded that there “may have been some problems out there,” but claimed it tried to correct them and heaped the blame on M & M, the absent defendant. The jury awarded $6,150 in actual damages, $2,050 in attorney fees, and $7,000 in punitive damages against M & M. After learning about the verdict, M & M attempted unsuccessfully to move for a new trial and now appeals. Held:

1. M & M contends that the trial court erred in determining that the letter filed with the court by the manager of its Milledgeville lot did not constitute a legal answer. We agree. The complaint was served by leaving a copy with the manager of M & M’s sales lot in Milledgeville. The manager, a nonlawyer, responded to the complaint by a letter addressed to Haralson’s counsel on Destiny Home Center letterhead. This letter was duly filed as a response and served on counsel. See Robinson v. Rearden, 134 Ga. App. 815, 816 (216 SE2d 370) (1975) (timely filed pro se answer setting forth style and case number and disputing date of note at issue was sufficient to withstand motion for default judgment). Rather than moving to strike the pro se answer or moving for an entry of default, Haralson proceeded to trial by ignoring the response as though no answer had been filed.

“[U]nder the CPA a party is to be given notice and the opportunity to amend defective pleadings where such notice will facilitate decision on the merits. The CPA does not penalize a party irrevocably for one misstep in pleading.” McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 515 (250 SE2d 424) (1978). See OCGA § 9-11-8 (f). The purpose of responsive pleadings is to provide notice of the defenses raised and the averments controverted in whole or in part by the defendant. See Tahamtan v. Dixie Ornamental Iron Co., 143 Ga. App. 561, 562 (239 SE2d 217) (1977). The record shows that Haralson received such notice from M & M in that the pleading spoke to each of his 13 grievances.

The avenues of relief from an insufficient answer include: a motion to strike, motion to dismiss, or for judgment on the pleadings. OCGA § 9-11-12 (b) (6), (c), (f). Or a party may except or object to the treatment of a letter as a sufficient answer. Brown v. Brown, 217 Ga. App. 245, 246 (457 SE2d 215) (1995). Each of these motions would have been required to have been in writing with a copy served on M & M who would have had an opportunity to respond. Brown, 217 Ga. App. at 246. OCGA § 9-11-7 (b) (1). Haralson pursued none of these alternatives. M & M was given no notice that its answer was being attacked and was not afforded an opportunity to defend or amend it. McDonough Constr. Co., 242 Ga. at 515 (liberal rules of notice pleading apply to defendants as well as to plaintiffs).

Where an answer has been filed, regardless of the nomenclature or its seeming inadequacy, it is, nevertheless, an answer within the meaning of the CPA, until a court determines otherwise. Mills v. Bing, 181 Ga. App. 475, 476 (1) (352 SE2d 798) (1987); Tahamtan, 143 Ga. App. at 561 (pleading requirements to be construed liberally in favor of pleader). See Bosworth v. Cooney, 156 Ga. App. 274, 279 (2) (274 SE2d 604) (1980) (denial of the principal allegations in complaint by separate paragraphs constitutes an answer). Once an answer has been timely filed, as here, it cannot be disposed of in an ex parte proceeding without notice to the defendant. Brown, 217 Ga. App. at 246. In view of the above cases, the judgment against M & M violated principles of fundamental fairness and must be reversed.

2. In light of this holding, we need not reach the remaining enumerations of error.

Judgment reversed.

Beasley and Ruffin, JJ, concur specially.

Beasley, Judge,

concurring specially.

1. I concur for the reason that Haralson’s suit was instituted in December 1996, before the date of applicability of the holding of the Supreme Court of Georgia in Eckles v. Atlanta Technology Group, 267 Ga. 801, 806 (2) (485 SE2d 22) (1997). Sales lot manager Ogltree was served for M & M on January 14, 1997, and filed the corporation’s answer on February 11. Eckles was decided in March. The Court expressly provided that its holding have effect only prospectively, beginning “on and after the date that this opinion appears in the advance sheets.” Id. Without that concession, the corporation would be left without an answer. Had Eckles applied, then regardless of whether the answer was sufficient in its content under OCGA § 9-11-12 as judicially interpreted, it would not be an answer cognizable at law and the trial court would have been correct in not giving it that stature. Eckles held that “[a] layman’s legal representation in a court of record of another ‘person’ in the form of a separate corporate entity is . . . proscribed.” M & M would only have been permitted to be represented by a licensed attorney.

This case points up a notification problem that may exist postEckles, if the summons form used when Ogltree was served for M & M Homes is still in vogue. It tells the defendant, ‘You are hereby summoned and required to file with the Clerk of said court and serve upon the Plaintiff’s attorney, ... an answer to the complaint which is herewith served upon you. . . .” It does not tell a corporate defendant that only a licensed attorney can file an answer on its behalf and represent it in the litigation. The myriad of small corporations out in the marketplace would not know that not even an officer could respond, and that it could not represent itself pro se in a court of law.

Decided July 31, 1998.

Joel D. Burns, for appellant.

Martin L. Fierman, for appellee.

2. The opinion leaves the impression that the verdict and judgment were only against M & M. The jury awarded separate damages and attorney fees against each of the two defendants and added punitive damages against M & M. Likewise, separate judgments were entered accordingly.

I am authorized to state that Judge Ruffin joins in this special concurrence.

       Among other things, Haralson claimed that the slab was not level, a countertop had not been replaced, the opening for his refrigerator was too small, and a seam in the living room carpet needed reworking.


author: Blackburn, Judge. McMurray, Presiding Judge,

text:
    A98A0932.
    CASILLAS v. THE STATE.
    (505 SE2d 251)
   Blackburn, Judge.

Joe M. Casillas was convicted of involuntary manslaughter and possession of a firearm during the commission of a crime in connection with the shooting death of Martin Leonard Wright. He appeals, asserting numerous errors. For the reasons discussed below, we affirm.

Viewed in the light most favorable to the verdict, the evidence at trial revealed the following. Corporals Ted Hatch and Timothy Lawler of the Savannah Police Department were dispatched to the scene of a reported shooting. At the scene, Corporal Hatch saw Casillas standing between two vehicles, with Wright, the victim, lying on the ground with a bullet wound between his eyebrows. Casillas told Hatch that he and a friend, Henry Ruiz, had been upstairs drinking beer with Wright, when Wright “just grabbed the gun and shot himself in the head.” Casillas said that he and Ruiz dragged the victim down the stairs and “were going to attempt to take him to the hospital, but that for some reason or other, they changed their mind and called the police.”

Corporal Lawler heard defendant state to Corporal Hatch that “the victim had taken the gun and shot himself in the head.” Lawler went upstairs into the apartment and found Henry Ruiz standing inside the doorway. Lawler noticed a semi-automatic weapon on the table. A spent shell casing and a live round of ammunition were recovered from the apartment floor.

Henry Ruiz testified that he served in the same platoon where defendant was a staff sergeant in the 75th Ranger Battalion, at Hunter Army Airfield. On the day in question, Casillas and Ruiz each purchased a 12-pack of beer. At around 8:00 p.m., they left defendant’s apartment and went to a bar, where they spent a couple of hours drinking. They went to another bar around midnight, where Ruiz met the victim, Martin Wright, who was in a wheelchair. Ruiz and Casillas bought the victim some beer. They stayed until closing time, at which point the three men returned to defendant’s apartment where they watched a videotape about the Rangers and drank more beer. In Ruiz’s opinion, all three of them were under the influence of alcohol.

According to Ruiz, when the victim told Casillas that he did not believe Casillas’ stories of combat experience, the two of them argued. At some point, Casillas went to his bedroom and returned with a pistol and a bag of ammunition.

Ruiz testified that the victim jokingly said that “he’d rather be dead” because he could no longer have intercourse because he was paralyzed from the waist down. According to Ruiz, Casillas then said that “he could assist him in that, he had a pistol nearby. And he [the victim] said, put it in my mouth. So the gun was inserted in [the victim’s] mouth [by Casillas], jokingly.” This episode was repeated. Ruiz testified that he “took the pistol and took all the rounds out of it.” Henry Ruiz never saw the victim handle the gun by himself, before he left the dining room area and went to try to sleep on a couch. But an argument ensued when the beer ran out. The victim “was being kind of obnoxious and told [Casillas] to put the pistol back in his mouth. And the Defendant did.” Ruiz testified that he saw defendant reload the weapon, stand up with “[b]oth hands on the pistol grip,” and point the weapon at the victim from a distance of three or four feet. Ruiz did not actually see Casillas fire the weapon, because Ruiz “was resting [his] head between [his] arms, just exhausted.” The victim was shot in the center of the forehead. Ruiz believed defendant washed his hands thereafter.

Ruiz testified that, although his “[f]irst instinct was to call EMS or take him to the hospital or something,” he and Casillas “started to roll [the victim] down the stairs, and as [they] got to the doorway, . . . [the victim’s] body fell out of the wheelchair and fell down the flight of stairs.” Casillas eventually summoned the police. He told Ruiz to say that the victim “shot himself in the forehead,” so Ruiz initially told police at the scene “that [the victim] had self-inflicted himself.” However, Detective Aaron L. Quarterman testified that the location of the spent shell casing on the floor indicated the shot was not fired by the victim: “If [that] man shot himself, that shell casing’s not supposed to be across the room . . . , it’s supposed to be in the opposite direction.”

William Medart, M.D., performed the autopsy on the victim. In his opinion, “[t]his young man died as a result of a gunshot wound which entered his forehead a little bit above the level of between the eyes and which traversed the entire brain and exited . . . from the rear of the brain.” Dr. Medart “did not notice evidence of stippling[,] . . . the term used to refer to small black either particles or burns around an entrance wound which are indicative of the skin being hit by hot black powder.” Roger Wayne Parian, the director and firearms examiner for the Division of Forensic Sciences at the Savannah branch of the Georgia Bureau of Investigation Crime Laboratory, testified that the spent shell casing was fired from the .40 caliber semiautomatic weapon found in the apartment. Parian testified that “[t]he only way [he] could make [the weapon] discharge was by pulling the trigger either in the single- or double-action mode.” In the absence of stippling, Parian opined “the muzzle to target distance had to be greater than twenty-four inches at least.”

In a custodial statement, defendant essentially corroborated Ruiz’s version of events as to the extended drinking and playing with the weapon. Defendant stated he “took out the magazine, cleared the weapon, and everybody started playing around with the gun, squeezing it. The gun was clear. . . . We continued drinking. . . . And I still thought the weapon was clear. But I had it in my hand. I thought it was pointed above his head. I thought it was pointed above his head. ... I thought I was pointing it away from his head at a safe distance. I wasn’t intentionally knowing that the gun was loaded. Somebody . . . must have loaded it. ... I squeezed the trigger, not knowing the gun was loaded, and shot him in the head. ... It was an accident. We were just trying to show [the victim] a good time, ‘cause he was crippled, you know.”

After Ruiz testified, Detective Quarterman testified about a custodial statement made by Ruiz. In this statement, Ruiz made no mention of unloading the weapon himself. Rather, he told Detective Quarterman the victim “was acting very immature. At this time, Sgt. Casillas had ejected all the rounds in the weapon, and they fell on the floor. ... At this time, the gun was then . . . again put in his mouth. Both of them did it. It was empty. Sgt. Casillas had pulled the trigger while the gun was in his mouth. During this time, there was an argument on fraternization between privates and NCO’s. ... At this time, sergeant was putting the rounds back in the clip. . . . Sgt. Casillas had put the weapon in front of [the victim’s] face, and it was loaded at this time and off safe, because I remember hearing it go off safe, and [the victim] lunged for the weapon, and they kind of struggled with it. One of the rounds went into [the victim’s] forehead. Sgt. Casillas had control of the weapon and [the victim] lunged for it, and the round went off in his forehead.”

Casillas took the stand and testified that, just before the fatal shot, he had put the clip back into the weapon. However, he testified that the gun would not fire unless there was a round in the chamber, and that he was positive there was no round in the chamber unless Ruiz had loaded one. Casillas testified that the victim “was reaching for [the weapon]. ... I believe he put his hand on the weapon, try to pull it, tried to get it out of my hand to look — to — to grab it. And the gun went off. It just happened so quick.” He testified that when the gun discharged, he cursed and asked Ruiz who had loaded the gun. Defendant denied he had been negligent when handling the gun himself because he believed it was unloaded.

The jury acquitted defendant of charges of murder (Count 1), felony murder (Count 2), and involuntary manslaughter during the commission of the unlawful act of pointing a pistol at another (Count 3) but found him guilty of involuntary manslaughter during the commission of the unlawful act of reckless conduct (Count 4) and possession of a firearm during the commission of a crime (Count 5). Defendant’s motion for new trial was denied, and this appeal followed.

1. Casillas contends that the trial court erred in excluding evidence regarding prior instances of reckless behavior on the part of the victim. This evidence consisted of the testimony of a police officer that Wright had, on several occasions in the past, been found in the early morning hours intoxicated and sitting in his wheelchair in the road, creating a dangerous condition.

The general character and specific conduct of the victim on other occasions are not generally relevant or admissible. The trial court has broad discretion in determining admissibility in such matters. See Moss v. State, 206 Ga. App. 310 (1) (425 SE2d 386) (1992) (“ ‘the admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion’ ”). See also Causey v. State, 215 Ga. App. 723, 724 (3) (452 SE2d 564) (1994).

In Causey, supra, the defendant appealed the trial court’s exclusion of evidence of the victim’s prior drug use, contending that such evidence was the core of his defense. We held that the trial court did not abuse its discretion in limiting the testimony of drug use by the victim to that which occurred on the night of the incident, where the defendant contended the victim’s injuries were caused by a cocaine-induced seizure.

In this case, Casillas also contends at one point that the victim’s death was the result of his own conduct and that the excluded prior conduct would establish this fact. This case is similar to Causey and by the same rationale, the trial court did not err in excluding the testimony concerning prior conduct of the victim.

Here, testimony regarding the victim’s reckless behavior on the night in question was allowed. The jury heard the defense’s testimony that the victim said he wished he was dead and the victim’s commands that the defendant put the gun in the victim’s mouth. Therefore, the jury did consider whether the victim’s recklessness on the subject evening contributed to his death. The jury also heard the other evidence presented and was free to resolve all conflicts in the evidence and to determine issues of credibility. See Causey, supra (evidence of prior drug use irrelevant where evidence of drug use on the night of the incident was introduced). See also Johnson v. State, 221 Ga. App. 267, 270 (3) (471 SE2d 46) (1996) (exclusion of prior conduct evidence did not prevent defendant from presenting a full defense and testifying as to victim’s conduct on the subject date).

The trial court did not abuse its discretion in disallowing evidence of the victim’s past conduct, see OCGA § 24-2-2; therefore, we affirm Casillas’ conviction on this ground. While the trial court did not err in excluding the subject testimony, such ruling, even if it had been error, would have been harmless under the facts of this case. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976).

2. Casillas contends the trial court erred in allowing Detective Quarterman to testify regarding Ruiz’s custodial statement. Casillas contends that such statement was used for impeachment purposes, and that Ruiz therefore should have been confronted with such statement before its introduction through Detective Quarterman’s testimony. See OCGA § 24-9-83.

As part of the State’s case, Detective Quarterman read the statement given to him by Casillas to the jury. It read in part, “Q. Now did the defendant — well, I believe you’ve already testified that he made a statement, is that correct? A. Yes, sir. Q. Would you for the jury read the statement of the defendant?] A. He advised okay, it was me, Martin, and Henry Ruiz coming back from Classy Cat Club. All three of us were drinking at Classy Cats. Then the club closed, so we decided to go to my apartment and drink some beers, ‘cause I had some more beers over there. We got to my apartment. We went inside. We were sitting at the table drinking beer. We decided to see the gun that I had. It was a Smith and Wesson model 411, .40 caliber, black in color. So I grabbed the gun, took out the magazine, cleared the weapon, and everybody started playing around with the gun, squeezing it. The gun was clear. Like I said, we were — we was fooling around with it. Then we started drinking some more. The gun was laying on the table. We continued. We continued drinking, and I was going back and forth to the restroom and recording some music. And I still thought the weapon was clear. But I had it in my hand. I thought it was pointed above his head. I thought it was pointed above his head. Like I said, I thought it was clear. I thought I was pointing it away from his head at a safe distance. I wasn’t intentionally knowing that the gun was loaded. Somebody must have — like everybody was fooling around with the pistol. So during the time it was laying on the table, somebody must have loaded it. I squeezed the trigger, not knowing the gun was loaded, and shot him in the head. I shot Martin. So once I — so once I shot him in the head, we tried to take him to the hospital, and it didn’t work. We called the cops, called the police. And like I said, I didn’t know the weapon was loaded.”

Contrary to the defendant’s assertion, the State offered Ruiz’s statement not for impeachment purposes but as a prior consistent statement. Under Woodard v. State, 269 Ga. 317, 320 (2) (496 SE2d 896) (1998), a witness’s prior consistent statement is admissible where “(1) the veracity of [the] witness’s trial testimony has been placed in issue at trial; (2) the witness is present at trial; and (3) the witness is available for cross-examination.” It appears that these elements were met in this case, and that Ruiz’s statement was therefore properly admitted. Furthermore, even if the statement were seen as impeachment evidence, any error by the trial court in failing to follow the proper procedure was harmless and would not support a reversal of Casillas’ conviction.

3. Casillas contends the trial court erred in refusing to give his requested charge on mistake of fact. Casillas contends that, because he was unaware that a round of ammunition was in the gun’s chamber, he was mistaken in his belief that the gun could not discharge. However, at trial Casillas testified that the victim reached for the gun and grabbed his hand as he was getting up, which caused the gun to discharge. At trial, Casillas consistently maintained that the victim was accidentally shot. Furthermore, Casillas specifically denied pointing the pistol at the victim and squeezing the trigger.

“One cannot deny committing an act, while at the same time argue he committed the act by mistake. Accordingly, the evidence adduced at trial clearly did not authorize a charge on mistake of fact, and the trial court was correct in refusing to give the charge.” (Punctuation omitted.) Williams v. State, 221 Ga. App. 296, 297 (1) (471 SE2d 258) (1996).

4. Casillas contends the trial court erred in denying his motion to suppress physical evidence such as the weapon, shell casing, and bloody towel seized in plain sight from his apartment during a warrantless search immediately after police arrived at the scene and discovered the victim’s body. This contention is without merit.

“When the police come upon the scene of a homicide they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises. The need to protect or preserve life or avoid serious injury is justification for what would he otherwise illegal absent an exigency or emergency. And the police may seize any evidence that is in plain view during the course of their legitimate emergency activities.” (Citations and punctuation omitted.) Delay v. State, 258 Ga. 229, 230 (2) (b) (367 SE2d 806) (1988). The trial court did not err in denying Casillas’ motion to suppress.

5. Casillas contends that he is entitled to a new trial because the State failed to disclose the existence of an alleged deal between the State and Henry Ruiz, pursuant to which Ruiz would not be prosecuted in exchange for his testimony against Casillas. However, as the transcript of the motion for new trial hearing has not been included in the record on appeal, Casillas has failed to show that any such deal in fact existed. Accordingly, we cannot say that the trial court erred in denying the motion for new trial on this ground.

Judgment affirmed.

Andrews, C. J, Johnson, P. J, Smith, Eldridge, JJ, and Senior Appellate Judge Harold R. Banke concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent from the judgment of affirmance. In my view, defendant was entitled, under this Court’s precedent, to put up evidence of the victim’s pattern of reckless behavior while under the influence of alcohol, as an exception to the general rule that the character of the victim is not legally relevant. It is further my opinion that the erroneous exclusion of this relevant and material evidence mandates reversal of defendant’s convictions for involuntary manslaughter during the commission of the unlawful act of reckless conduct and possession of a firearm during the commission of a crime, with direction to admit such evidence upon any retrial. Since the majority is unable meaningfully to distinguish, and is unwilling to follow or overrule, the applicable and binding precedent of Carswell v. State, 171 Ga. App. 455, 459 (4) (320 SE2d 249), overruled in part on other grounds, Adcock v. State, 260 Ga. 302 (392 SE2d 886), I respectfully dissent.

In addition to the facts recited by the majority, I note the following: Basic safety instructions about using a nine-millimeter semiautomatic pistol include “never point a loaded gun at somebody. Never have your finger in the trigger well unless you intend to shoot. Make sure your weapon’s on safe. Common sense characteristics.” But Henry Ruiz observed some dangerous horseplay with defendant’s weapon. Defendant took the stand and testified it was standard practice that he “kept rounds in the clip [of his weapon], but no rounds in the chambert, explaining that for] a semi-automatic, you need a round in the chamber to have it work. It’s like the keys to the car. Without the round in the chamber, it’s not going to [fire].” Defendant “was very positive [there was no round in the chamber, because that is] the way [he] always leaves them. . . .Not unless when he was . . . looking at it, [Henry Ruiz] loaded one in the chamber.” When the gun discharged, “[flirst thing [defendant] asked him [Henry Ruiz] was who loaded it. [Defendant] used the F word. [He] said, who loaded the damn gun. . . .” Immediately preceding the discharge, defendant “had just put the clip back in. . . . He [the victim] was reaching for it. ... I believe he put his hand on the weapon, try to pull it, tried to get it out of my hand to look — to — to grab it. And the gun went off. It just happened so quick. . . .” Defendant agreed it is “dangerous to be drinking and handling a loaded firearm, . . . but if it’s not loaded, [defendant] didn’t see — if you know what you’re doing, no — no threat to it if you know what you’re doing. . . . [E]ither [defendant] or Mr. Ruiz or [the victim] would have had to pull [the] slide back and push it forward to load a round in that chamber.” “If he [Henry Ruiz] don’t . . . know what he’s doing, he could leave a round in that chamber.” Defendant denied he had been negligent when handling the gun himself because “[i]t was unloaded as far as [he was] concerned.”

The jury acquitted defendant of charges of murder (Count 1), felony murder (Count 2), and involuntary manslaughter during the commission of the unlawful act of pointing a pistol at another (Count 3) but found him guilty of involuntary manslaughter during the commission of the unlawful act of reckless conduct (Count 4) and possession of a firearm during the commission of a crime (Count 5).

1. Defendant proffered the testimony of Corporal Ted Hatch of the Savannah Police Department indicating that a number of “officers on the southside were familiar with [the victim] through prior dealings with him [and that] on at least four or five occasions, [Corporal Hatch] found him in the early morning hours,. . . between midnight and about 4:00 A.M., in [his] black wheelchair, out in the road, intoxicated.” The victim was “obstructing traffic [and posed] a danger to traffic and to himself.” Defendant argued this was proof of a pattern of reckless behavior on the part of the victim. The trial court granted the State’s motion in limine to exclude this evidence of the victim’s past contact with the police, and this evidentiary ruling is defendant’s second enumeration of error.

(a) “[T]he Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Any evidence is relevant which logically tends to prove or disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or to throw light upon a material issue or issues is relevant.” (Citations and punctuation omitted.) Snelling v. State, 215 Ga. App. 263 (1), 265 (1) (b) (450 SE2d 299). Accord Moss v. State, 206 Ga. App. 310 (1) (425 SE2d 386). Since their inception, the appellate courts of Georgia stand “pledged, by . . . past history, to abolish, to the extent of [their lawful] power, all exclusionary rules which shut out any fact from the Jury which may assist them in the ascertainment of the truth of the issue committed to their trial and decision.” Haynes v. State, 17 Ga. 465, hn. 6 (1854). Accord Williams v. State, 126 Ga. App. 302 (1), 303 (190 SE2d 807). It is well settled that the victim’s character, good or bad, is generally irrelevant and inadmissible in a murder trial. Wiseman v. State, 249 Ga. 559, 561 (6) (292 SE2d 670). “There are several circumstances, however, in which evidence reflecting the victim’s character is [nevertheless] admissible.” Milich, Ga. Rules of Evidence, § 11.5, p. 120 (1995). In my view, evidence that the victim repeatedly engaged in reckless behavior while under the influence of alcohol is logically relevant to prove defendant’s claim that the victim grabbed for defendant’s hand (in order to place the pistol in his own mouth), at which point the weapon discharged. Contrary to the ruling of the trial court in the case sub judice, that any testimony regarding a pattern of habitual reckless behavior should be excluded, I “think evidence of [the victim’s] ‘hazardous habit was relevant to a factual consideration of whether [recklessness] on (his) part contributed [in any way] to (his) death.’ [Cit.]” Carswell v. State, 171 Ga. App. 455, 459 (4), 460, supra. I cannot say it is highly probable that the error in excluding this relevant evidence did not contribute to the jury’s verdicts. Consequently, the judgment of conviction for involuntary manslaughter via reckless conduct (Count 4) and possession of a firearm during the commission of a crime (Count 5) must, in my view, be reversed. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869); Snelling v. State, 215 Ga. App. 263 (1), 266 (1) (c), 267, supra; Carswell v. State, 171 Ga. App. 455, 459 (4), 460, supra.

(b) “The decisions of the Court of Appeals insofar as not in conflict with those of the Supreme Court shall bind all courts except the Supreme Court as precedents” (Emphasis supplied.) Art. VI, Sec. V, Par. Ill, Ga. Const, of 1983. “[T]he older decisions of this court are binding on this court until reversed or overruled by the Supreme Court or overruled by this court. . . .” (Emphasis supplied.) McKibben v. State, 88 Ga. App. 466, 470 (1), 474 (77 SE2d 86). Regrettably, the majority does not acknowledge exceptions to the general evidentiary rule stated, does not attempt to distinguish the applicable and binding precedent of Carswell v. State, 171 Ga. App. 554, 559 (4), supra, nor does it propose to overrule the same.

2. The third enumeration contends the trial court erred in refusing to give defendant’s written request to charge on mistake of fact. I agree.

“A person shall not be found guilty of a crime if the act or omission to act constituting the crime was induced by a misapprehension of fact which, if true, would have justified the act or omission.” OCGA § 16-3-5. Since defendant was acquitted by the jury of murder, felony murder, and involuntary manslaughter by pointing a gun, the underlying crime supporting the remaining involuntary manslaughter charge is reckless conduct. This is where: “A person . . . causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his apt or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. . . .” OCGA § 16-5-60 (b).

“Mistake of fact is a defense to a crime to the extent that the ignorance of some fact negates the existence of the mental state required to establish a material element of the crime. [Cit.]” Jones v. State, 263 Ga. 835, 837 (2), 839 (439 SE2d 645). In the case sub judice, there is nothing to contradict defendant’s explanation that the semi-automatic pistol would not fire unless and until a round was chambered. Should the jury accept defendant’s testimony that he consciously believed the weapon was not loaded, i.e., no round was chambered (even though a fully loaded clip had been inserted) when he aimed toward or above the victim’s head, that circumstance would be relevant and material to whether defendant consciously disregarded a substantial and unjustifiable risk of harm constituting a gross deviation from the applicable standard of care. The trial court’s charge on misfortune or accident, OCGA § 16-2-2, does not itself adequately address this possible view of the evidence. In Adcock v. State, 260 Ga. 302, supra, the Supreme Court of Georgia disapproved of holdings in Abelman v. State, 185 Ga. App. 278, 279 (2) (363 SE2d 764) and Carswell v. State, 171 Ga. App. 455, 460 (5), supra, as well as the holding in Adcock v. State, 194 Ga. App. 627 (391 SE2d 438), that when mistake of fact is not the sole defense, as it was not there, it is not error to refuse to charge. Consequently, the refusal to charge mistake of fact can constitute reversible error even when it is not the sole defense. Adcock v. State, 260 Ga. 302, supra. In my view of the case sub judice, a new trial is demanded for the separate reason that the trial court erred in refusing to give defendant’s timely written request to charge the law of mistake of fact.

3. I fully concur with Division 4, holding the trial court did not err in denying defendant’s motion to suppress physical evidence such as the weapon, shell casing, and bloody towel seized in plain sight from his apartment during a warrantless search immediately after police arrived at the scene and discovered the victim’s body. Delay v. State, 258 Ga. 229, 230 (2) (b) (367 SE2d 806). Nevertheless, because of the harmful errors discussed above, I respectfully dissent from the judgment of affirmance.

Decided August 3, 1998

Gregory N. Crawford, for appellant.

Spencer Lawton, Jr., District Attorney, Ronald M. Adams, Assistant District Attorney, for appellee.


text:
    A98A0960, A98A0961.
    MORRIS et al. v. SAVANNAH VALLEY REALTY, INC.; and vice versa.
    (505 SE2d 259)
   Pope, Presiding Judge.

H. Carter Morris and Angie Morris entered into an exclusive listing agreement authorizing Savannah Valley Realty, Inc. to sell or lease property described as a “floating restaurant.” The written agreement provides that the Morrises must pay a ten percent commission on any sale or lease of the property procured by Savannah Valley. The agreement further states that the exclusive listing means the Morrises must pay Savannah Valley the commission even if the Morrises themselves find a buyer during the one-year term of the agreement. Before the one-year term of the listing agreement expired, the Morrises entered into a lease and purchase contract with Riverwalk Cruise Lines, Inc. That contract provided that Riverwalk would lease the Morrises’ Princess Augusta riverboat until exercising an option to buy the boat at the end of 1995, 1996 or 1997.

Savannah Valley sued the Morrises, claiming that under the exclusive listing agreement it is entitled to a ten percent commission on the lease and sale of the Princess Augusta to Riverwalk, plus attorney fees caused by the Morrises’ stubborn litigiousness and unnecessary delay in refusing to pay the commission. The Morrises defended the lawsuit, in part, by asserting that the listing agreement is unenforceable because it does not adequately identify the Princess Augusta as its subject matter. The case was tried before a jury, which returned a verdict for Savannah Valley in the amount of $12,960 plus attorney fees. The trial court entered judgment on the verdict, awarding Savannah Valley the $12,960 and $4,602 as the amount of attorney fees stipulated to by the parties. The Morrises appeal from the court’s judgment, and Savannah Valley cross-appeals.

Case No. A98A0960

1. The Morrises allege the trial court erred in admitting the listing agreement into evidence and in failing to direct a verdict in their favor. They support both allegations with the argument that the listing agreement is unenforceable because it does not sufficiently identify the Princess Augusta as its subject matter. The Morrises make no claim that the Princess Augusta is not actually the property covered by the listing agreement; on the contrary, at trial and in their appellate briefs they have acknowledged that it is in fact the subject of the contract. They argue only that the property description in the contract is insufficient. This argument is without merit.

The listing agreement names the Morrises as the property owners and gives their address. The agreement identifies the type of property as a floating restaurant and gives the property’s address as 1-R Riverfront in Richmond County. The contract provides that the property is located one-quarter of a mile from North Augusta, that the nearest city to it is Augusta, and that the property is surrounded by water on the Savannah River. The document further describes the property as being thirty-two feet by sixty-four feet, having two stories, and having a steel hull and frame.

This description of the property is not so indefinite as to render the listing agreement unenforceable. “[I]t has long been the rule in this state that the description of property placed in the hands of a broker for sale does not need to be as definite and complete as that which should be made in deeds of conveyance.” (Citations and punctuation omitted.) Intl. Business &c. v. Archer Motor Co., 187 Ga. App. 97, 100 (369 SE2d 268) (1988); Keith v. Byram, 118 Ga. App. 364, 365 (163 SE2d 753) (1968). “[A]ll that is necessary to recover on [a listing agreement] is to allege and prove that the property attempted to be described in the contract is the same property intended to be listed by the owner and offered for sale by the broker.” Orr v. Smith, 102 Ga. App. 40, 43 (115 SE2d 601) (1960). “If there is doubt of the description of property which is the subject of a listing contract, the description may be aided by extrinsic evidence. [Cit.]” Campbell v. Mut. Svc. Corp., 152 Ga. App. 493, 497 (4) (263 SE2d 202) (1979).

In the instant case, Angie Morris testified at her deposition that the Princess Augusta is definitely the subject of the listing agreement. At trial, both the Morrises testified that the Princess Augusta is the subject of the listing agreement. Two Savannah Valley employees also identified the Princess Augusta as the subject of the agreement. Based on this extrinsic evidence verifying that the Princess Augusta is in fact the subject of the listing agreement, the contract is sufficiently definite and enforceable. See Davis v. Boyd, 118 Ga. App. 198, 199 (1) (162 SE2d 880) (1968). Accordingly, the trial court committed no error in admitting the listing agreement into evidence or in denying a directed verdict to the Morrises.

2. The Morrises also claim the contract is unenforceable because it contains the following indefinite exclusion provision: “Exclusions from this agreement are: John Connelly, Jim Pledger, and Mark B.” Although the meaning of this provision may be uncertain, it may also be explained by parol evidence. “It is well-settled that the policy of the law is against the destruction of contracts on the ground of uncertainty if it is possible in the light of the circumstances under which the contract was made to determine the reasonable intention of the parties. Parol evidence is admissible to explain an ambiguity but where the degree of indefiniteness imparts no meaning at all, there is nothing to explain.” (Citations and punctuation omitted.) Gram Corp. v. Wilkinson, 210 Ga. App. 680, 681 (1) (437 SE2d 341) (1993). See also OCGA § 13-2-2 (1). Here, the exclusion provision is not so indefinite as to impart no meaning at all. Its meaning was fully explained by Angie Morris and the two Savannah Valley employees, all of whom testified that under the exclusion, Savannah Valley is not entitled to a commission if the Princess Augusta is bought by any of the three people named in the provision. Because the parties’ intentions regarding this exclusion provision were made certain by parol evidence, the court did not err in finding the contract to be enforceable. See Thomas v. American Global Ins. Co., 229 Ga. App. 107, 108-109 (2) (a) (493 SE2d 12) (1997).

3. The Morrises challenge the sufficiency of the evidence supporting the award of attorney fees. “OCGA § 13-6-11 allows for the award of attorney fees where the defendant has acted in bad faith, been stubbornly litigious, or caused the plaintiff unnecessary trouble and expense. A trial court’s award of attorney fees under this Code section is to be affirmed if there is any evidence to support it. [Cit.]” G.I.R. Systems v. Lance, 228 Ga. App. 329, 332 (7) (491 SE2d 530) (1997). Here, Savannah Valley did not allege bad faith, but sought attorney fees only on the grounds of stubborn litigiousness and unnecessary trouble. If bad faith is not an issue and the basis for attorney fees is either stubborn litigiousness or unnecessary trouble and expense, there is not any evidence to support an award pursuant to OCGA § 13-6-11 if a bona fide controversy clearly exists between the parties. Fuel South v. Metz, 217 Ga. App. 731, 732 (1) (458 SE2d 904) (1995).

The Morrises argue that the clear existence of a bona fide controversy, as proved by the fact that Savannah Valley received less in damages than it sought, precludes a finding of stubborn litigiousness or unnecessary trouble. That argument has been rejected by this Court. See Chapman v. Hepburn, 191 Ga. App. 909, 910 (2) (383 SE2d 352) (1989); Ga.-Carolina Brick &c. Co. v. Brown, 153 Ga. App. 747, 750-754 (2) (B) (266 SE2d 531) (1980). While the disparity between the damages sought and those actually awarded may be some evidence of a bona fide controversy, it does not mandate a finding that there is a bona fide controversy. Id. In the present case, the jury could have found that there was no bona fide controversy given the Morrises’ admissions that the Princess Augusta is in fact the subject of the contract. The jury therefore could have concluded that the Morrises were stubbornly litigious or caused unnecessary trouble and expense by refusing to honor the contract. See Leventhal v. Seiter, 208 Ga. App. 158, 164 (7) (430 SE2d 378) (1993). Because the award of attorney fees was supported by some evidence, it must be upheld. See WMI Urban Svcs. v. Erwin, 215 Ga. App. 357, 358-359 (450 SE2d 830) (1994).

Case No. A98A0961

4. In its cross-appeal, Savannah Valley contends the trial court erred in denying its motion for judgment notwithstanding the verdict as to the amount of damages. Savannah Valley argues there is no dispute the Morrises sold the boat to Riverwalk for $525,000, and thus the award should have been for $52,500, which would be the ten percent commission required by the listing agreement.

“The general rule on appeal of an award of damages is that a jury’s award cannot be successfully attacked so as to warrant a new trial unless it is so flagrantly excessive or inadequate, in light of the evidence, as to create a clear implication of bias, prejudice, or gross mistake on the part of the jurors. Even though the evidence is such as to authorize a greater or lesser award than that actually made, the appellate court will not disturb it unless it is so flagrant as to shock the conscience. Moreover, the trial court’s approval of the verdict creates a presumption of correctness that will not be disturbed absent compelling evidence.” (Citations and punctuation omitted.) Wells v. Roberts, 225 Ga. App. 112, 113 (1) (483 SE2d 339) (1997). See OCGA § 13-6-4. In the present case, there is not compelling evidence to disturb the jury’s verdict. Contrary to Savannah Valley’s argument, the evidence does not demand a finding that the boat was sold for $525,000. There is evidence that Riverwalk did not ultimately buy the boat and instead defaulted on the lease. Moreover, the evidence is unclear as to how much money the Morrises actually received under the lease agreement. Under these circumstances, we cannot say the award of damages is so inadequate as to shock the conscience. The trial court therefore did not err in sustaining the verdict. See Turpin v. Worley, 206 Ga. App. 341, 342-343 (1) (425 SE2d 895) (1992).

Judgment affirmed.

Beasley and Ruffin, JJ, concur.

Decided August 3, 1998.

William A. Trotter III, Mary H. Story, for appellants.

Allgood, Childs, Mehrhof & Millians, Richard R. Mehrhof, Jr., for appellee.