text:
    A91A0458.
    SNIDER v. THE STATE.
    (406 SE2d 542)
   Banke, Presiding Judge.

The appellant, Candace Snider, was convicted of selling the drug alprazolam in violation of the Georgia Controlled Substances Act. She brings this appeal from the denial of her motion for new trial.

GBI Agent Scott Whitley testified that he purchased the drug in question from the appellant on the night of November 18, 1989. He stated that he did not know the appellant at the time but dealt with her directly during the transaction and was able to observe her for a period of approximately two minutes under “good” lighting conditions. He wrote a description of her in his field notes approximately 30 minutes later in which he characterized her as a white female, 25 to 30 years of age, weighing 145 to 155 pounds, with medium length, blond curly hair.

Agent Whitley testified that soon after the transaction was completed, he observed the appellant “getting into the passenger side of a gray Mustang GT with a wrecked front end bearing Georgia license THE 949.” He stated that later that night, he saw this same vehicle parked outside a Huddle House in which the appellant could be observed dining. He testified that approximately a week-and-a-half to two weeks after the sale, he observed this vehicle parked outside an apartment building from which he later saw her emerge and that, approximately a month after that, he saw it parked outside a convenience store where she was working. The appellant was arrested on March 8, 1990, at which time Agent Whitley confirmed her identity during a one-on-one showup at the jail. Held:

1. The appellant enumerates as error the denial of her pre-trial motion to suppress Agent Whitley’s identification testimony, arguing that the showup at the jail was both impermissibly suggestive and violative of her right to counsel and that it irreparably tainted Whitley’s ability to identify her as the person who had sold him the controlled substance. We find these contentions to be without merit.

“[T]he Sixth Amendment right to counsel clearly does not attach simply because the accused is in custody, or has been arrested. [Cit.] Rather, the Sixth Amendment right to counsel exists to protect the accused ‘during trial-type confrontations with the prosecutor’ and thereafter.” Ross v. State, 254 Ga. 22, 27 (326 SE2d 194) (1985). “There is no right to counsel at a pre-indictment lineup, even when held subsequent to an arrest, because the adversary judicial criminal proceedings have not yet begun. [Cits.]” Davis v. State, 176 Ga. App. 650, 651 (337 SE2d 431) (1985).

With regard to the suggestiveness of the showup, the trial court was authorized to conclude that the agent’s numerous prior viewings of the appellant established an independent basis for his in-court identification of her. “Even if the pretrial identification is tainted, the in-court identification is not constitutionally inadmissible if it does not depend upon the prior identification but has an independent origin. [Cits.]” Hamilton v. State, 180 Ga. App. 284, 285 (349 SE2d 230) (1986). The fact that the appellant’s name was supplied to the agent by other law enforcement officers would not affect the integrity of his identification testimony, absent a showing that his in-court identification was based upon an impermissible suggestion by another that she was the seller. See Smith v. State, 192 Ga. App. 144 (2) (384 SE2d 677) (1989). Finally, assuming arguendo that the agent should not have been allowed to testify concerning his identification of the appellant during the showup itself, we hold that the admission of his testimony in this regard was harmless in the context of his remaining identification testimony. See generally Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976).

2. The evidence, construed in the light most favorable to the verdict, was sufficient to enable a rational trier of fact to find the appellant guilty of the offense charged beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Accordingly, the trial court did not err in denying her motion for directed verdict.

3. The trial court did not err in refusing to give the appellant’s requested charges concerning the factors to be considered in weighing identification testimony. The court gave the charge on this issue which appears in the Suggested Pattern Jury Instructions prepared by the Council of Superior Court Judges of Georgia (Vol. II, Criminal Cases, pp. 52-53, Nov. 1984). Inter alia, this lengthy charge enumerates the following factors as being among those which may be considered in assessing the reliability of identification testimony: “a. The opportunity of the witness to view the alleged perpetrator at the time of the alleged incident; b. The witness’ degree of attention toward the perpetrator at the time of the alleged incident; c. The level of certainty demonstrated by the witness as to his or her identification; d. The possibility of mistaken identity; e. Whether the witness’ identification may have been influenced by factors other than the view had by the witness, if any, at the time of the alleged incident; f. Whether the witness, on any prior occasion, has failed to identify the defendant in this case as the alleged perpetrator.” Id.

The appellant does not contend that any portion of this charge was erroneous or inappropriate but contends that she was also entitled to instructions emphasizing, among other things, the possibility of human error or mistake and the fact that an identification made by picking an individual out of a group generally is more reliable than one which results from a one-on-one showup. We hold that to the extent the additional instructions sought by the appellant were not covered by the court’s charge, they were unduly argumentative. See generally Camp v. State, 181 Ga. App. 714, 716 (353 SE2d 832) (1987).

4. For the purpose of demonstrating that her hair had not been curly on November 18, 1989, the appellant was allowed to play a videotape to the jury depicting her presence at a family gathering which had purportedly taken place during Thanksgiving of 1989. She contends on appeal that the trial court erred in refusing to allow her to point herself out to the jurors during the playing of this tape and to emphasize to them such factors as the presence of a Thanksgiving turkey decoration. This enumeration of error is patently without merit. The jury was instructed immediately before the playing of the tape that it was being shown to them for the purpose of allowing them to determine “what this . . . defendant looked like on that occasion,” and there is no suggestion that any narration by the appellant or her counsel was necessary to enable them to make that determination. Furthermore, an examination of the transcript reveals that appellant’s counsel did not object to or otherwise take issue with the court’s ruling in this regard.

5. The appellant contends that the trial court erred in failing to instruct the jury to disregard certain hearsay testimony offered by Agent Whitley concerning the manner in which he had learned her name. However, a review of the transcript discloses that the appellant requested no such instructions. Consequently, this enumeration of error presents nothing for review.

6. The appellant contends that the trial court erred in refusing to declare a mistrial in response to certain statements made by the state’s attorney during closing argument. However, the record reflects that the appellant’s counsel waited until after the jury had begun its deliberations to “perfect the record” in this regard. “When improper argument is made to the jury, it is necessary, in order to make the alleged error the basis for appeal, that opposing counsel, during the trial, properly object to the argument, invoke the ruling or instruction of the court, and if dissatisfied with the action taken to renew the objection and move for mistrial. [Cits.]” Epps v. State, 168 Ga. App. 79, 81 (4) (308 SE2d 234) (1983). Since this procedure was not followed by the appellant in the present case, this enumeration of error also presents nothing for review.

7. The appellant contends that the trial court erred in allowing the state to call two witnesses whose names were not on the list of witnesses provided to her pursuant to OCGA § 17-7-110. One of these witnesses was the crime lab analyst who had performed the chemical test identifying the controlled substance at issue, while the other was a rebuttal witness who testified concerning the appellant’s appearance at the time of the alleged offense and who further testified that it was he who had supplied the appellant’s name to the other law enforcement agents involved in the investigation.

The appellant made no contention during the trial of this case that Agent Whitley had not in fact purchased the drug alprazolam from someone on the night of November 18, 1989; rather, it was her position that the person who had sold this drug to him was someone other than herself. In the absence of any indication by the appellant as to what she would have done differently if she had been given additional time to prepare for the testimony of the crime lab analyst, the trial court did not err in allowing him to testify. See Askew v. State, 192 Ga. App. 351 (1), 352 (385 SE2d 21) (1989). As for the rebuttal witness, it is well settled that “calling an unlisted witness in rebuttal is not error and does not violate [OCGA] § 17-7-110. [Cits.]” Forney v. State, 255 Ga. 316, 318 (338 SE2d 252) (1986). The testimony of this witness regarding the appellant’s physical appearance at the time of the commission of the offense was clearly offered in response to the appellant’s own testimony on that issue; and none of his testimony was necessary to establish a prima facie case against her. Consequently, we reject the appellant’s contention that this witness was not a bona fide rebuttal witness.

8. The appellant contends that the trial court erred in granting the state’s motion to strike two affidavits submitted by her in support of her argument that the state’s rebuttal witness should not have been allowed to testify. The first of these was from her own counsel stating that she (counsel) invariably voir dired juries in criminal cases concerning their acquaintance with the state’s witnesses, that because the rebuttal witness in question was unlisted she had been unable to voir dire the jurors as to their possible acquaintance with him, and that the district attorney had added new witnesses just prior to trial in other cases which she had handled in that circuit. The second affidavit was from one of the jurors in the case and disclosed that the rebuttal witness was an “acquaintance” of hers. As neither of these affidavits established any ground for a new trial, any error the trial court may have committed in striking them was harmless.

Judgment affirmed.

Carley and Beasley, JJ., concur.

Decided June 10, 1991.

Amy A. Petulla, for appellant.

Ralph Van Pelt, Jr., District Attorney, Mary Jane R. Palumbo, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A91A0552.
    THE STATE v. BURNS.
    (406 SE2d 547)
   Cooper, Judge.

Appellee was arrested at a McDonald’s restaurant for the offense of carrying a concealed weapon (OCGA § 16-11-126); however, the State did not pursue the charge upon discovering that appellee had a valid gun permit. Instead, he was charged with carrying a deadly weapon to a public gathering (OCGA § 16-11-127). The trial court granted appellee’s motion to dismiss the accusation, stating that McDonald’s was not a public gathering as contemplated under the statute, and the State appealed.

OCGA § 16-11-127 (b) provides that a “public gathering” includes but is not limited to “athletic or sporting events, schools or school functions, churches or church functions, political rallies or functions, publicly owned or operated buildings, or establishments at which alcoholic beverages are sold for consumption on the premises.” The State argues that the statute seeks to protect people from injury at public gatherings, caused by others who bring deadly weapons to such places and does not exclude an establishment such as McDonald’s, which is a place where the public lawfully gathers. However, this broad interpretation equates “public gathering” to “public place” and blurs the distinction we must assume the legislature intended to make in specifically referring to gatherings in OCGA § 16-11-127 and by limiting its restriction to gatherings as opposed to proscribing the carrying of deadly weapons in public places as defined by OCGA § 16-1-3 (15). We agree with appellee that such a construction would render licensing statutes unnecessary because of the potential of violating the statutes by carrying a weapon outside one’s household, in public, where the possibility exists that people might gather around someone carrying a weapon. We have held that a conviction was authorized when a weapon was brought to a place where “people were present” (Jordan v. State, 166 Ga. App. 417 (4) (304 SE2d 522) (1983)), and it appears from reading subsection (b) and giving the words their ordinary meaning that the statute should apply, in addition to the situations described therein, when people are gathered or will be gathered for a particular function and not when a weapon is carried lawfully to a public place, where people may gather. Accordingly, the focus is not on the “place” but on the “gathering” of people, and in our view, the court did not err in dismissing the accusation because appellee’s possession of a weapon and mere presence in a public place did not constitute a violation of OCGA § 16-11-127.

Decided June 10, 1991.

Gerald N. Blaney, Jr., Solicitor, Jessica R. Towne, Assistant Solicitor, for appellant.

John R. Mather, for appellee.

Judgment affirmed.

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


text:
    A91A0589.
    POLK v. THE STATE.
    (406 SE2d 548)
   Cooper, Judge.

Appellant was charged with possession of cocaine with intent to distribute and possession of a firearm during the commission of a felony. After the trial court denied appellant’s motion to suppress evidence, appellant pled guilty to the lesser included offense of possession of cocaine, specifically reserving his right to appeal the trial court’s ruling on the motion to suppress. Appellant now raises, as his sole enumeration of error, the trial court’s denial of the motion to suppress.

The evidence adduced at the motion to suppress hearing reveals that officers of the Americus Police Department had placed appellant and another suspect under surveillance based upon information received from an informant that appellant and the other individual had recently purchased a kilo of crack cocaine in Florida. A search warrant for the residence of the other suspect was being prepared when appellant left the residence in his automobile. One of the officers followed appellant’s vehicle and observed him commit three traffic violations, including backing into a roadway, changing lanes without signal or warning, and turning without signal or warning. When appellant’s vehicle was stopped, the officers noticed a handgun lying on the passenger seat of the vehicle within reach of appellant. Appellant was arrested for the traffic infractions and taken into custody, allegedly because the officers were concerned that appellant would disrupt the execution of the search warrant. Appellant was searched at the police station, incident to the custodial arrest, and three bags of cocaine were discovered on his person. It is appellant’s contention that the search of his person was unlawful because it was made pursuant to a warrantless arrest without probable cause.

The police officer’s decision to stop appellant for the commission of traffic violations was not unlawful merely because the officer suspected that appellant had committed or was committing other crimes. What is important is that the stop of appellant’s vehicle was valid independent of the police officer’s suspicion regarding drugs. State v. McCloud, 187 Ga. App. 580, 583 (370 SE2d 831) (1988). “A rule requiring a law enforcement officer to forego making a traffic stop which he would otherwise be authorized to make merely because he suspects that the vehicle might be engaged in the transport of illicit drugs would have little to commend it, and we have previously declined the invitation to create such a rule. [Cits.]” Williams v. State, 187 Ga. App. 409 (1) (370 SE2d 497) (1988).

Decided June 10, 1991.

Ellis, Easterlin, Peagler & Gatewood, John V. Harper, for appellant.

John R. Parks, District Attorney, for appellee.

Appellant’s arrest without a warrant for the commission of traffic offenses was authorized pursuant to the provisions of OCGA § 17-4-20 (a) because appellant had committed three misdemeanors in the presence of a police officer. Although the officer could have simply issued citations charging appellant with these traffic offenses, he was not required to do so. “OCGA § 17-4-23 (a) gives a police officer the option to issue a citation but does not restrict the power given to police in OCGA § 17-4-20 to make custodial arrests for crimes committed in their presence.” Brock v. State, 196 Ga. App. 605 (1) (396 SE2d 785) (1990).

Once appellant was placed under custodial arrest, the police were authorized to search his person for weapons or contraband incident to that arrest. Paxton v. State, 160 Ga. App. 19 (1) (285 SE2d 741) (1981). Thus, the trial court did not err in denying appellant’s motion to suppress.

Judgment affirmed.

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


author: Carley, Judge.

text:
    A91A0363.
    PHIPPS v. THE STATE.
    (406 SE2d 493)
   Carley, Judge.

Appellant was tried before a jury and found guilty of running a stop sign and failing to have proof of insurance. He appeals pro se from the judgments of conviction and the sentence of confinement entered by the trial court on the jury’s guilty verdicts.

In his sole enumeration of error, appellant urges that he was denied due process by being forced to trial without effective assistance of counsel.

Decided May 15, 1991

Rehearing denied June 11, 1991.

Tony L. Phipps, pro se.

The record reveals that counsel was appointed to represent appellant on three separate occasions. However, each of the three was permitted to withdraw after it was established that appellant had declined to accept counsel’s advice, but had insisted that motions be filed and defenses be asserted which were, in counsel’s professional opinion, baseless and frivolous. After the third court-appointed attorney was permitted to withdraw on this basis, the trial court found that, by his actions, appellant had made a knowing and voluntary waiver of his right to appointed counsel and ruled that appellant was to represent himself.

“[T]he constitutional guarantees of the benefit of counsel . . . may be waived by action or declaration. [Cits.]” Bradley v. State, 135 Ga. App. 865, 866 (1) (219 SE2d 451) (1975). The defendant in a criminal action has “the right to the effective assistance of counsel, not the right to the assistance of counsel satisfactory to the defendant. [Cits.]” Bailey v. State, 240 Ga. 112, 114 (1) (239 SE2d 521) (1977). “A defendant is entitled to counsel capable of rendering competent, meaningful assistance in the preparation and trial of the pending charges, including appropriate evaluation and advice with reference to a plea of guilty. A defendant is not entitled to an attorney who agrees with the defendant’s personal view of the prevailing law or the equities of the prosecutor’s case. A defendant is entitled to an attorney who will consider the defendant’s views and seek to accommodate all reasonable requests with respect to trial preparation and trial tactics. A defendant is entitled to appointment of an attorney with whom he can communicate reasonably, but has no right to an attorney who will docilely do as he is told. Every defendant is entitled to the assistance of counsel dedicated to the proposition, and capable of assuring that, the prosecution’s case shall be presented in conformity with the Constitution, rules of evidence and all other controlling rules and practices. No defendant has a right to more.” United States v. Moore, 706 F2d 538, 540 (1-4) (5th Cir. 1983).

The trial court was authorized to find that appellant’s insistence upon the appointment of counsel who would accede to his demands and pursue a frivolous and baseless line of defense was “the functional equivalent of a knowing and voluntary waiver of counsel. In such an instance the trial court may proceed to trial with the defendant representing himself.” United States v. Moore, supra at 540 (5).

Judgment affirmed.

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

Ralph T. Bowden, Jr., Solicitor, Neal R. Bevans, K. Eric Morrow, Cliff Howard, Assistant Solicitors, for appellee.


author: Pope, Judge.

text:
    A91A0113.
    FRANKLIN v. GWINNETT COUNTY PUBLIC SCHOOLS et al.
    (407 SE2d 78)
   Pope, Judge.

While plaintiff/appellant Christine Franklin was a student at North Gwinnett High School, she was allegedly subjected to sexual molestation and/or abuse by a former teacher at the school, Andrew Hill. Plaintiff filed suit on December 29, 1988, against the Gwinnett County Public Schools and Dr. William Prescott, the band director at North Gwinnett High School, in the United States District Court for the Northern District of Georgia (hereinafter the “federal court action”). Count I of plaintiff’s complaint in the federal court action alleged that plaintiff had been intentionally discriminated against because of her gender in violation of Title IX of The Education Amendments of 1972 and The Civil Rights Restoration Act of 1987. Count II of that complaint alleged plaintiff was intimidated and coerced in violation of The Education Amendments of 1972. (All counts of the federal court action will hereinafter collectively be referred to as the “Title IX claim.”) Defendants in the federal court action filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12 (b) (6), asserting, inter alia, that the compensatory relief sought by plaintiff was unavailable for a Title IX claim. The district court granted defendants’ motion on the basis that the compensatory relief sought by plaintiff was unavailable. Franklin v. Gwinnett County Pub. Schools, 1:88-cv-2929-ODE (N.D. Ga. May 1, 1989). The Eleventh Circuit Court of Appeals affirmed that decision. Franklin v. Gwinnett County Pub. Schools, 911 F2d 617 (11th Cir. 1990).

On November 2, 1990, plaintiff filed the instant case in the Superior Court of Gwinnett County (hereinafter the “state court action”). The defendants in the state court action are the Gwinnett County Public Schools, Dr. Franklin Lewis, the principal of North Gwinnett County High School, and Virginia Lacy, a guidance counselor at North Gwinnett County High School. In Count I of plaintiff’s complaint in the state court action, plaintiff alleges deprivation of her constitutional rights pursuant to 42 USC § 1983. In Count II, plaintiff alleges defendants deprived her of certain rights guaranteed by the Georgia Constitution, and in Count III plaintiff asserts a cause of action for negligent infliction of emotional distress. Defendants filed a motion for summary judgment in the state court action on the basis that the doctrine of res judicata barred plaintiff’s state court action. The trial court granted defendants’ motion for summary judgment, and plaintiff appeals from that decision.

In plaintiff’s first enumeration of error, plaintiff alleges that the trial court erroneously granted defendants’ motion for summary judgment on the basis of res judicata with respect to plaintiff’s claim under 42 USC § 1983. In particular, plaintiff alleges that (a) the law governing plaintiff’s Section 1983 action changed between the time plaintiff filed the federal court action and the state court action; (b) the trial court erred in applying this court’s decision in Morgan v. Dept. of Offender Rehabilitation, 166 Ga. App. 611 (305 SE2d 130) (1983) to find that plaintiff’s Section 1983 action could have been raised in the federal court action; (c) the trial court improperly found that the cause of action alleged in the federal court action was the same as the cause of action alleged in the state court action; (d) the trial court erroneously found that the parties in the state court action were the same parties or in privity with the parties in the federal court action; and (e) the trial court failed to consider the underlying policy considerations associated with granting the defendants’ motion for summary judgment. In plaintiff’s second enumeration of error, plaintiff asserts that the trial court erred in applying the doctrine of res judicata to plaintiff’s state court claims.

1. The doctrine of res judicata in Georgia is set forth at OCGA §§ 9-12-40 and 9-12-42. In order for the doctrine of res judicata to apply, the following three elements must be present: “ ‘(1) identity of parties(, including their privies); (2) identity of the cause of action; and (3) adjudication by a court of competent jurisdiction.’ ” Barnes v. City of Atlanta, 186 Ga. App. 187, 188 (1) (366 SE2d 822) (1988) (quoting Firestone Tire &c. Co. v. Pinyan, 155 Ga. App. 343, 345 (2) (270 SE2d 883) (1980)). Plaintiff does not contend that the federal district court would not have been a court of competent jurisdiction to hear any Section 1983 claim plaintiff may have had available to her. Plaintiff asserts, however, that the remaining two elements of res judicata are absent in this case.

The court will first address plaintiff’s contention that the law governing plaintiff’s Section 1983 claim changed between the time plaintiff filed her federal court action and the time plaintiff filed her state court action. “The doctrine of res judicata prevents relitigation of those issues which were actually raised in the first suit and any and all claims which ‘under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.’ ” Walker v. Kroger Co., 181 Ga. App. 745, 747 (353 SE2d 551) (1987). Therefore, if a Section 1983 claim was available to plaintiff at the time she filed her federal court action, plaintiff’s Section 1983 claim could now be barred by res judicata.

Essentially, plaintiff argues that res judicata should not apply to the state court action because shortly after plaintiff filed her federal court action, the United States Supreme Court, in DeShaney v. Winnebago County Dept. of Social Svcs., 489 U. S. 189 (109 SC 998, 103 LE2d 249) (1989), limited a Section 1983 cause of action in similar factual situations to only when a “special relationship” exists between plaintiff and defendant. Plaintiff further asserts that until the Eleventh Circuit Court of Appeals issued its opinion in Arnold v. Board of Educ., 880 F2d 305 (11th Cir. 1989), there was no precedent for finding such a “special relationship” between a school student and school officials.

We find plaintiff’s argument to be without merit. First, the DeShaney opinion was not issued until after plaintiff filed her federal court action. Plaintiff does not allege nor is there any evidence that in December 1988 plaintiff knew the DeShaney case was pending before the United States. Supreme Court and that the decision in that case might affect whether plaintiff had a Section 1983 claim against defendants.

Furthermore, DeShaney is factually dissimilar to the instant case, which makes its application to this case questionable. In DeShaney, a four-year-old boy was severely beaten by his natural father. The child and his mother brought suit alleging that Winnebago County, its Department of Social Services (“DSS”), and certain individual DSS employees had deprived the boy of a constitutionally protected liberty interest by failing to intervene to protect him against a risk of violence from his father of which they knew or should have known. In that case, the Court held that a liberty deprivation triggering due process protection cannot be found when a state actor fails to protect a person against harms inflicted by a third party, who is not a state actor, absent a “special relationship.” The Court found that the relationship between the State of Wisconsin and the injured child was not sufficient to create such a relationship because although the State may have been aware of the dangers that the child faced, it neither created those dangers nor rendered the child more vulnerable to them. DeShaney, supra at 201.

The primary factual distinction between the DeShaney case and this case is that the actor who allegedly harmed plaintiff in this case, her former teacher, was a state actor. The law in Georgia is well-settled “that public school officials are state officers acting under color of law, whose action is therefore state action. . . .” State v. Young, 234 Ga. 488, 494 (2) (216 SE2d 586) (1975). See also Lopez v. Houston Indep. School Dist., 817 F2d 351, 353 (5th Cir. 1987) (a school system is a local government unit that may be held liable under certain circumstances for deprivations of rights protected by the Constitution or federal law) (citing Kingsville Indep. School Dist. v. Cooper, 611 F2d 1109 (5th Cir. 1980)). The decision in DeShaney intimates that if the harm inflicted on the child had been inflicted by a state actor rather than a private third party, or if the child had been in state custody, the result would have been different.

Plaintiff’s reliance on Arnold v. Board of Educ., 880 F2d 305 (11th Cir. 1989), for the proposition that the Eleventh Circuit recognized for the first time that there was a “special relationship,” as required by DeShaney, between a student and school officials, is also misplaced. There is no mention in that opinion of the need for such a “special relationship” nor of the DeShaney opinion. Indeed, the Eleventh Circuit Court of Appeals’ failure to address this issue and its cursory holding that school officials, who allegedly encouraged a student to have an abortion, were acting under color of state law, suggests that the court did not consider the law on this issue to be unsettled. Id. at 315.

Plaintiff’s contention that any Section 1983 claim asserted at the time she filed her federal court action may have given rise to sanctions by the federal court is also without merit. Federal Rule of Civil Procedure 11 provides in pertinent part that “[t]he signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and is not interposed for any improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation.”

The United States Supreme Court’s decisions in Ingraham v. Wright, 430 U. S. 651 (97 SC 1401, 51 LE2d 711) (1977) and Monell v. Dept. of Social Svcs., 436 U. S. 658 (98 SC 2018, 56 LE2d 611) (1978), and the line of cases evolving from those decisions, establish sufficient bases on which plaintiff could have asserted a Section 1983 claim that was “warranted by existing law or a good faith argument for the extension [or] modification ... of existing law. . . .” In Monell, the Court held that a local governmental entity could be held liable under Section 1983 “when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” 436 U. S. at 694.

In Ingraham, which involved the use of corporal punishment in public schools, the Court found that “where school authorities, acting under color of state law, deliberately decide to punish a child for misconduct by restraining the child and inflicting appreciable pain, we hold that Fourteenth Amendment liberty interests are implicated.” 430 U. S. at 674. In cases factually similar to the case before this court, courts relying on Ingraham for guidance have recognized that “common sense suggests [a student’s] right, to be free from sexual abuse is at least as fundamental as the right to be free from the less intrusive physical abuse of paddling. . . . Therefore, this Court holds that the constitutional right, to be free from state intrusions into the realm of personal privacy and bodily security, ... is well-established in law.” Stoneking v. Bradford Area School Dist., 667 FSupp. 1088, 1094-1095 (W.D. Pa. 1987), aff’d, 856 F2d 594 (3rd Cir. 1988), cert. granted and judgment vacated and remanded sub nom. Smith v. Stoneking, 489 U. S. 1062 (109 SC 1333, 103 LE2d 804) (1989), on remand, 882 F2d 720 (3rd Cir.), cert. denied (110 SC 840, 107 LE2d 835) (1990); accord Sowers v. Bradford Area School Dist., 694 FSupp. 125 (W.D. Pa. 1988), aff’d without decision, 869 F2d 591 (3rd Cir. 1988), cert. granted and judgment vacated and remanded sub nom. Smith v. Sowers, 490 U. S. 1002 (109 SC 1634, 104 LE2d 150) (1989), on remand aff’d without decision, 887 F2d 262 (3rd Cir.), cert. denied, (110 SC 840, 107 LE2d 835) (1990) (sexual harassment and/or molestation by a teacher); Doe “A” v. Special School Dist. of St. Louis County, 637 FSupp. 1138 (E.D. Mo. 1986) (bus driver beating and sexually abusing handicapped children); Schillingford v. Holmes, 634 F2d 263, 265 (5th Cir. 1981) (“[t]he right to be free of state-occasioned damage to a person’s bodily integrity is protected by the fourteenth amendment guarantee of due process.”)

This court is mindful that the United States Supreme Court remanded Stoneking and Sowers to the Third Circuit for reconsideration in light of its decision in DeShaney. We agree with the Third Circuit Court of Appeals that the relationship between school officials and students should be sufficient to give rise to an affirmative duty to protect the students. Stoneking, 882 F2d at 724.

Even if that duty does not give rise to a viable Section 1983 claim today, however, there is another tenable basis for any Section 1983 claim the plaintiff may have against the defendants that was available in December 1988, when plaintiff filed her federal court action, and that has not been affected by the DeShaney opinion. In this case, as in Stoneking, the plaintiff has alleged that the defendants were acting in a “wanton and reckless manner” pursuant to “a practice and custom of failing to investigate and report and take appropriate action with respect to teachers who posed a threat to the health, safety, and welfare of students.” The Third Circuit Court of Appeals found that even when there is no predicate duty based on a special relationship, a plaintiff may state a sufficient claim under Section 1983 by alleging that the “defendants, with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused her constitutional harm.” Id. at 725. There is nothing in the record that indicates that the facts giving rise to the allegations that the defendants were acting pursuant to a policy, practice or custom that caused her constitutional harm were not known to plaintiff in December of 1988. Thus, plaintiff could have properly asserted a Section 1983 cause of action at the time she filed the federal court action based on the establishment of a custom or policy by defendants that deprived plaintiff of certain constitutionally protected rights.

2. The court will next address plaintiff’s contentions that the trial court improperly found that the cause of action in the federal court action was the same as the cause of action in plaintiff’s state court action. Plaintiff argues that her Section 1983 cause of action is a separate and distinct cause of action for res judicata purposes from her Title IX claim asserted in the federal court action. In Spence v. Erwin, 200 Ga. 672 (38 SE2d 394) (1946), the Georgia Supreme Court held that when a subsequent action arises from the same wrong as a prior action and is based on essentially the same facts, the subsequent action should be barred by res judicata. Id. at 674. In Winters v. Pund, 179 Ga. App. 349, 352 (346 SE2d 124) (1986), this court recognized that a “caúse of action” is generally “the right to sue for a thing done or omitted to be done which causes a grievance for which the law gives a remedy.” It has also been defined by this court as “all the facts which together constitute the plaintiff’s right to maintain the action.” Id. (quoting Parris v. Atlanta, K & N R. Co., 128 Ga. 434, 437 (57 SE 692) (1907)). Both plaintiff’s Title IX claim in the federal court action and her Section 1983 claim asserted in the state court action arise from the common wrong that she was subjected to sexual harassment and abuse by her former teacher. Thus, plaintiff’s Section 1983 claim simply states an alternate theory of recovery arising from the same wrong, it does not state a separate cause of action. As the Georgia Supreme Court held in Spence, when a party has different theories of recovery arising from the same wrong, the party should properly assert those different theories of recovery in separate counts in one suit. Spence, supra at 674.

We will now address plaintiff’s contention that the trial court improperly applied our decision in Morgan v. Dept. of Offender Rehabilitation, 166 Ga. App. 611, supra. The procedural history in the instant case is similar to the procedural history in Morgan. In Morgan, the plaintiff was barred by res judicata from asserting a Section 1983 claim in a state court action which arose from the same gravamen of the plaintiff’s prior claim in federal court alleging age discrimination in violation of the Age Discrimination in Employment Act. As we discussed above, plaintiff’s Section 1983 claim in this case arose from the same wrong giving rise to her Title IX claim in the federal court action. Accordingly, plaintiff’s contention that the trial court improperly applied our decision in Morgan when finding that plaintiff’s Section 1983 claim was barred by res judicata is erroneous. See also Walker v. Kroger Co., 181 Ga. App., supra at 748.

3. Plaintiff asserts that the trial court erred in finding that the defendants in the state court action are either the same parties or in privity with the parties named as defendants in the federal court action. In the federal court action, the named defendants were the Gwinnett County Public Schools and Dr. William Prescott, formerly a band director at North Gwinnett High School. In the state court action, the named defendants are the Gwinnett County Public Schools, Virginia Lacy, a guidance counselor at North Gwinnett High School, and Dr. Franklin Lewis, principal of North Gwinnett High School. Defendants Lacy and Lewis were sued both individually and in their official capacities.

It is axiomatic that to the extent plaintiff’s enumeration of error can be read to assert that there is no privity for defendant Gwinnett County Public Schools, that contention must fail. With regard to plaintiff’s claims against defendants Lacy and Lewis in their official capacities, such claims are the equivalent of suits against the local government entity which employs them, and thus, there is privity with regard to those claims also. Monell v. Dept. of Social Svcs., 436 U. S. 658, supra. Gray v. Lacke, 885 F2d 399, 405 (7th Cir. 1989), cert. denied (110 SC 1476, 108 LE2d 613) (1990).

The only remaining claims are against defendants Lewis and Lacy in their individual capacities. While the complaint is styled such that these defendants are being sued individually, the complaint and the record establish that the only actions of these defendants that allegedly give rise to claims against them by the plaintiff were actions in their capacities as either principal or guidance counselor at North Gwinnett High School and pursuant to what plaintiff alleges was “[t]he Gwinnett County Public School [S]ystem[’s] . . . practice and custom of failing to investigate and report and take appropriate action with respect to teachers who posed a threat to the health, safety, and welfare of students.” Although the form of the complaint seeks to hold the defendants individually liable, in substance, plaintiff asserts only official capacity claims against Lacy and Lewis. See Kutzik v. Young, 730 F2d 149, 152 (4th Cir. 1984). As we discussed above, there is privity with regard to all official capacity claims against defendants Lacy and Lewis. Accordingly, the trial court correctly found that the defendants in the state court action were either the same defendants or in privity with the defendants in the federal court action.

4. Plaintiff contends that the trial court failed to consider the underlying policy considerations involved in granting defendants’ motion for summary judgment. Essentially, plaintiff reiterates her position that a Section 1983 cause of action was not available to her at the time she filed her federal court action, and for that reason, barring her present action would contravene the policy underlying the doctrine of res judicata. As we have discussed above, plaintiff’s contentions that she did not have a Section 1983 claim when she filed her federal court action are without merit. For that reason, plaintiff’s assertion that policy demands that plaintiff’s claims should be adjudicated by the state court also must fail.

Decided June 11, 1991.

Weinstock, Scavo & Montalto, Michael Weinstock, Hillard J. Quint, for appellant.

Freeman & Hawkins, Frank C. Bedinger III, Alan R. Heath, Tennant, Davidson, Thompson & Sweeny, E. Victoria Sweeny, Pruitt & Britt, Walter M. Britt, Arnold J. Wright, for appellees.

5. In plaintiff’s final enumeration of error she asserts that the trial court erred in finding that plaintiff’s state court claims were barred by the doctrine of res judicata. The crux of plaintiff’s argument in this enumeration of error is that even if plaintiff had raised her state court claims in the district court, that court would have refused to exercise pendent jurisdiction over those claims because the district court would have dismissed any claims plaintiff asserted pursuant to Title IX and Section 1983 for failure to state a claim upon which relief can be granted. Plaintiff’s argument is flawed because, as we have set forth above, plaintiff could have properly asserted a Section 1983 claim at the time she filed the federal court action. Unlike her Title IX claim, the compensatory relief sought by plaintiff would have been available for a Section 1983 claim.

The trial court correctly applied the standard set forth in Pope v. City of Atlanta, 240 Ga. 177, 179 (1) (240 SE2d 241) (1977), appeal after remand, 242 Ga. 331 (249 SE2d 16) (1978), cert. denied, 440 U. S. 936 (99 SC 1281, 59 LE2d 494) (1979), in finding that if the plaintiff had asserted her state law claims in the federal court action the district court would have exercised pendent jurisdiction over those claims and that, therefore, those claims are barred by res judicata. We find no error in the trial court’s application of the doctrine of res judicata in this case.

Judgment affirmed.

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

       Plaintiff has filed suit against Hill in an unrelated state court action.


author: Beasley, Judge.

text:
    A91A0175.
    McCOMBS v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (406 SE2d 549)
   Beasley, Judge.

Plaintiff-insured McCombs appeals the trial court’s grant of summary judgment to defendant insurer, State Farm Mutual Automobile Insurance Company, in this suit to recover additional no-fault medical payment benefits for injuries McCombs sustained in an automobile collision.

At the time of the collision, McCombs was the named insured under four separate State Farm policies, each covering a different vehicle and one of which specifically covered the car involved in the collision. Each policy provided $25,000 in personal injury protection (PIP) coverage and $5,000 in medical payments coverage. McCombs claimed $55,975.79 in medical expenses. Under the policy insuring the involved vehicle, State Farm paid McCombs the full $30,000 ($25,000 PIP and $5,000 medical). It refused to stack the medical payment coverage under McCombs’ other three policies to pay an additional $15,000 ($5,000 per policy) in medical benefits. The issue is whether or not the trial court correctly determined that McCombs was not entitled to stack the medical payment coverage in the separate policies.

“Georgia law allows an insured to ‘stack’ medical payment coverages provided by his own separate policies to the extent of the insured’s medical expense. See State Farm &c. Ins. Co. v. Johnson, 126 Ga. App. 45 (190 SE2d 113) (1972) and Provau v. State Farm &c. Ins. Co., 772 F2d 817, 820-821 (11th Cir. 1985).” Lofton v. State Farm &c. Ins. Co., 192 Ga. App. 154 (384 SE2d 245) (1989). However, the policy language itself can bar the stacking of such coverage. Id. “ ‘ “An insurance company may fix the terms of its policies as it wishes, provided they are not contrary to law, and it may insure against certain risks and exclude others.” ’ Georgia Farm Bureau Mut. Ins. Co. v. Musgrove, 153 Ga. App. 690, 692 (266 SE2d 228) [1980].” Wilson v. Cotton States Mut. Ins. Co., 183 Ga. App. 353, 354 (1) (358 SE2d 874) (1987) (overruled on issues concerning Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986), in Vogtle v. Coleman, 259 Ga. 115, 119 (376 SE2d 861) (1989)).

McCombs contends that certain policy language regarding non-duplication of benefits does not extend to his situation so as to bar his claim. He is correct that the cited provisions do not bar stacking McCombs’ medical coverage payments. The non-duplication provisions address other concerns. They prohibit a person for whom medical expenses are payable under the policy from recovering more than once for the same medical expense under the policy or similar vehicle insurance and make exception when the insured is driving an owned and covered vehicle.

Decided June 11, 1991.

Sell & Melton, John A. Draughon, for appellant.

Martin, Snow, Grant & Napier, Walter E. King III, for appellee.

However, the policy contains another critical provision regarding the payment of medical expenses: “Limit of Liability — Coverage C. 1. The amount of coverage for medical expenses, including funeral services, is shown on the declarations page under ‘Limit of Liability — Coverage C — Each Person’. This is the most we will pay for any one person under all medical payments coverage issued by us and applicable to the accident. If the amount shown is $2,500 or more, the most we pay for funeral services is $2,500 per person.”

Appellant argues that such language in conjunction with the non-duplication provisions at most render the policy ambiguous on the question of permitting stacking but that the correct interpretation of the policy is that stacking is only disallowed where the exceptions to the non-duplication coverage are met.

The two parts of the policy do not create the suggested ambiguity. The limitation of liability clause at issue, in the context of the entire policy, clearly and unambiguously prohibits the stacking of medical coverage payments under separate policies issued by the insurer. See Auto-Owners Ins. Co. v. Barnes, 188 Ga. App. 439, 441 (1) (373 SE2d 217) (1988) and St. Paul Fire &c. Ins. Co. v. Cohen-Walker, Inc., 171 Ga. App. 542, 544 (320 SE2d 385) (1984), regarding clear and unambiguous language in an insurance contract.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


text:
    A91A0186.
    ANDERSON v. THE STATE.
    (406 SE2d 791)
   Beasley, Judge.

Defendant was convicted of selling cocaine, OCGA § 16-13-30, and enumerates nine rulings as error.

1. The first enumeration is the court’s permitting the prosecutor to remain in the courtroom after witnesses were sequestered.

The ruling did not contravene OCGA § 24-9-61. “The prosecutor may testify as a witness after other witnesses for the State have testified.” Chastain v. State, 255 Ga. 723, 725 (2) (342 SE2d 678) (1986); Blalock v. State, 250 Ga. 441 (1) (298 SE2d 477) (1983); Davis v. State, 242 Ga. 901, 903 (3) (252 SE2d 443) (1979).

2. Error is asserted in the court’s denial of defendant’s request for access to notes the State’s witness used in preparing for trial testimony.

Because defendant failed to establish that the witness refreshed his recollection from notes at any time after commencement of the trial, there was no violation of Johnson v. State, 259 Ga. 403, 405 (2) (383 SE2d 118) (1989). See McKeever v. State, 196 Ga. App. 91, 92 (1) (395 SE2d 368) (1990).

3. Did the court err by admitting into evidence photographs of defendant and three others? His photograph depicted how he was dressed immediately after his arrest. Identification was an issue, so his picture was relevant to corroborate the testimony of Officer Hollis, who described how defendant was dressed at the time of the drug transaction. Cooper v. State, 229 Ga. 277, 278 (3) (191 SE2d 27) (1978) . Regardless of the relevancy of photographs of three individuals simultaneously admitted, no harm was shown by their admission.

4. The trial court did not contravene OCGA § 17-8-57 in eliciting from the prosecuting witness, Hollis, a clarification of his testimony regarding height comparison. Wilson v. State, 257 Ga. 444, 446 (2) (359 SE2d 891) (1987). Besides, no objection or motion for mistrial was made. Driggers v. State, 244 Ga. 160, 162 (2) (259 SE2d 133) (1979) .

5. Error is enumerated in permitting a witness to testify as to defendant’s statement made at the time of his arrest, which was not provided to defendant pursuant to OCGA § 17-7-210.

The arresting officer Perkins testified that defendant said to him: “Mr. Perkins, you know that I wouldn’t do that; you know that I wouldn’t do that.” The spontaneous statement of defendant was not incriminating or inculpatory. As such, it did not fall within the ambit of the codal requirement. Valdez v. State, 192 Ga. App. 10, 11 (1) (383 SE2d 611) (1989); Holland v. State, 190 Ga. App. 169 (1) (378 SE2d 513) (1989).

6. Error is assigned to permitting the district attorney to ask defendant, “What kind of business are you in?”

Contrary to the defense assertion this did not result in inadmissible evidence as to character under OCGA § 24-9-20 (b) because defendant stated he worked for his mother. Mitchell v. State, 236 Ga. 251, 256 (3) (223 SE2d 650) (1976).

7. The failure to instruct the jury on the defense of entrapment was not error because there was no evidence to support such a charge. The evidence shows that defendant approached the officers and solicited them. Orkin v. State, 236 Ga. 176, 195 (8) (223 SE2d 61) (1976).

8. Defendant complains that rulings by the trial court constituted expressions or intimations by the court as to defendant’s guilt. No objection was interposed or mistrial requested. Thus no question was presented. Driggers, supra. Even if the issue had been properly raised, the rulings did not constitute opinion in violation of OCGA § 17-8-57. Goode v. State, 171 Ga. App. 901, 902 (2) (321 SE2d 410) (1984).

Decided June 11, 1991.

John M. Beauchamp & Associates, Kermit S. Dorough, Jr., for appellant.

Britt R. Priddy, District Attorney, Henry O. Jones III, Assistant District Attorney, for appellee.

9. The last enumeration of error rests on the court’s alleged failure to conduct an in camera inspection of the State’s file or to provide exculpatory material. Defendant fails to show error because he does not identify the materiality or favorable nature of the evidence sought. Stevens v. State, 242 Ga. 34, 36 (1) (247 SE2d 838) (1978); Kress v. State, 195 Ga. App. 519, 520 (3) (394 SE2d 139) (1990).

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


author: Banke, Presiding Judge.

text:
    A91A0226.
    WHISENANT v. FULTON FEDERAL SAVINGS & LOAN ASSOCIATION OF ATLANTA.
    (406 SE2d 793)
   Banke, Presiding Judge.

The appellant sued the appellee seeking damages for the latter’s alleged breach of a contractual commitment to make a residential mortgage loan to him on certain specified terms. He also sought damages under the Georgia Fair Business Practices Act, OCGA § 10-1-390 et seq., based on allegations that the appellee had engaged in the unfair and deceptive trade practice of soliciting residential mortgage applications from the public through the offer of interest rate commitments (referred to as “lock-ins”) which it had no intention of honoring in the event market interest rates rose pending final approval of the applications. The case is before us on appeal from an order granting summary judgment to the appellee on claims.

The appellant is the president of a real estate development firm and has previous employment experience in commercial banking. In early 1987, he undertook to refinance the mortgage loan on his personal residence, which he had purchased in November of 1985 for $795,000. Prior to contacting the appellee, he had already submitted an application for such refinancing to another lender, Citicorp. However, Citicorp was not willing to commit, or “lock-in,” to a fixed interest rate pending approval of the loan. The appellee was willing to do so, and because market interest rates were rising at the time, the appellant considered this willingness to be of substantial potential benefit.

On April 1, 1987, the appellant spoke by telephone with Brad Driver, a loan originator employed by the appellee, and discussed applying for a mortgage loan in the amount of $675,000. Driver orally agreed at that time to a 45-day “lock-in” at an annual interest rate of 9.5 percent; and on April 7, 1987, the two men met to fill out the necessary application documents. The application was signed by both of them and contained the following provision, which both initialed: “If the 45-day lock-in period expires, the interest and discount points may be subject to change to the prevailing market rate quoted by [the appellee].” The application was predated April 1, 1987, and specified that the “lock-in” period would expire on May 16, 1987.

The appellee’s normal fee for such a loan application would have been $265, consisting of a $225 appraisal fee and a $40 credit report fee. However, because the appellant had recently applied to Citicorp to refinance the mortgage and had paid Citicorp for an appraisal of his home in connection with that application, and because that appraisal had been performed by an appraiser (Daniel Karski) who was also on the appellee’s list of approved appraisers, the appellee agreed to use the Karski appraisal and accordingly charged the appellant only the $40 fee for the credit report.

It was the appellee’s policy to require a 60 percent debt-equity ratio on residential real estate loans, meaning that it would not approve such a loan for more than 60 percent of the appraised value of the real estate. Since the appellant was seeking to borrow $675,000, this meant that the appraised value of the property would have to be at least $1,125,000 in order for the loan to be approved. Coincidentally, this was precisely the value arrived at by Karski in the appraisal he had performed for Citicorp.

The loan committee did not meet on the application until May 19, 1987, which was three days after the “lock-in” expiration date specified on the application. Because market interest rates had continued to rise since the date of the application, the appellant had previously expressed concern to Driver about the possibility that the loan might not be approved by the deadline. The latter had responded by assuring him that so long as the loan committee approved the loan on the terms specified in the application, the appellee “would extend his lock-in date through the closing date. . . .” However, the loan committee did not approve the loan on the terms set forth in the application, for the stated reason that it found the Karski appraisal to be unacceptable “due to location and the fact that the closest comparable was 17 miles away.” Instead, the committee approved an adjustable rate loan to the appellant, in an amount equal to 60 percent of value based on an “acceptable appraisal.” The appellant alleges that the appellee’s failure to approve the loan on the terms specified in the application was not prompted by a good-faith concern over the validity of Karski’s appraisal but by a desire to avoid honoring its “lock-in” commitment during a period of rising market interest rates. Held:

1. “It is a well-recognized principle of contract law ‘that both parties are under an implied duty of good faith in carrying out the mutual promises of their contract.’ [Cits.] A duty of good faith and fair dealing is implied in all contracts in this state. [Cit.] Thus, ‘whenever the cooperation of the promisee is necessary for the performance of the promise, there is a condition implied that the cooperation will be given.’ [Cit.] However, it is equally settled that ‘there “can be no breach of an implied covenant of good faith where a party to a contract has done what the provisions of the contract expressly give him the right to do.” ’ [Cit.]” Southern Business Machines &c. v. Norwest Fin. Leasing, 194 Ga. App. 253, 256 (390 SE2d 402) (1990).

For purposes of this appeal, we shall assume that the appellant’s payment of the $40 credit report fee at the time he signed the loan application constituted sufficient consideration to impose upon the appellee a contractual obligation to exercise good faith in processing the application, such that it would have been contractually obligated to make the loan on the terms set forth in the application in the event (1) it was reasonably possible to verify the information set forth in the application before the expiration of the “lock-in” period and (2) the loan qualified for approval under its existing underwriting standards. However, even given these assumptions, we conclude that the appellee was properly awarded summary judgment, since the evidence of record conclusively demonstrates that the reason the appellee gave for disapproving the loan on the terms applied for — i.e., its professed concern over the validity of Karski’s appraisal — was bona fide.

The appellee’s chief appraiser, who was also a member of the loan committee, testified that prior to the loan committee meeting at which the appellant’s application was considered, his assistant had called him to say that “he thought we had a problem” with the Karski appraisal in that the property was “a million-plus house north of Alpharetta, almost to the Forsyth County line,” and he (the assistant) “didn’t recall any houses of that class being in that area.” The chief appraiser stated that he thereafter reviewed the appraisal himself and drove out to the house, and that when the loan committee met he told the other members that he “thought the house, while it was a very nice house, it was a mansion, . . . had been overappraised because it [was] grossly overbuilt for the area.” He testified that he advised the committee that “in [his] opinion . . . [the] loan . . . should be based on a value of not more than $850,000 reflecting a penalty [of approximately 25 percent] for overbuilding.”

We have been cited to no evidence in the record which would support an inference that this opinion was not rendered in good faith or that it was not the actual reason for the loan committee’s refusal to approve the loan on the terms set forth in the application. Indeed, Karski himself acknowledged that there was considerable room for disagreement in valuing properties of this nature and testified that while he would consider a valuation of $850,000 to be unreasonably low for the property, he would not consider an appraisal of $900,000 unreasonably low. He further testified that only a few days after sending his appraisal report to Citicorp valuing the appellant’s property at $1,125,000, he had followed up with a letter stating that, based on information which had recently come to his attention regarding a public landfill which was to be opened in the area, he was reducing his valuation by “somewhere between a hundred and a hundred and fifty thousand dollars.”

Had the appellee’s loan committee approved a loan to the appellant for the amount applied for but at a higher interest rate, there might be some basis for an inference that it had acted in bad faith in failing to honor its “lock-in” commitment. However, based on the unrefuted evidence of record showing that it was genuine concern over whether the value of the property was sufficient to meet the 60 percent debt equity requirement which had in fact caused the application to be disapproved, we hold that the trial court acted properly in granting summary judgment to the appellee on the breach of contract claim.

2. As previously indicated, the appellant’s claim for damages under the Fair Business Practices Act was based on the allegation that the appellee had made a practice of soliciting mortgage loan applications from the public by agreeing to interest rate commitments which it did not intend to honor in the event market conditions made it disadvantageous to do so. However, the appellee submitted data indicating that of the 584 residential mortgage loan applications received by it in April and May of 1987, approximately 80 percent had closed and that of those, approximately 93 percent had closed on terms at least as good as those applied for. These statistics, the accuracy of which the appellant has not challenged, clearly tend to negate the appellant’s allegation that the appellee was engaged in a “bait and switch” operation. Furthermore, since the evidence of record conclusively demonstrates that the appellant’s loan was disapproved for a bone fide reason unrelated to the interest rate commitment, he cannot, in any event, claim to have been injured by the alleged unfair practice. See generally OCGA § 10-1-399 (a); Zeeman v. Black, 156 Ga. App. 82 (273 SE2d 910) (1980). Accordingly, even assuming arguendo the applicability of the FBPA to this type of transaction, the trial court also acted properly in granting summary judgment to the appellee on this theory of recovery.

3. The appellant’s remaining enumeration of error (which is directed to the court’s failure to rule on a pending motion to compel discovery filed by him) is deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2), due to the appellant’s failure to provide supporting argument or citation of authority.

Decided June 11, 1991.

Davis, Matthews & Quigley, Ron L. Quigley, J. Charles Olderman, for appellant.

Cashin, Morton & Mullins, A. L. Mullins, Jr., Swift, Currie, McGhee & Hiers, Jeffrey Y. Lewis, Jane C. Barwick, Powell, Goldstein, Frazer & Murphy, G. Patrick Watson, for appellee.

Judgment affirmed.

Carley and Beasley, JJ., concur.


author: Andrews, Judge.

text:
    A91A0349.
    GANTT et al. v. PATIENT COMMUNICATIONS SYSTEMS, INC.
    (406 SE2d 796)
   Andrews, Judge.

Gantt, Lies and Executive Performance Technologies (EPT) appeal the trial court’s grant of a directed verdict on their multi-count counterclaim.

This appeal stems from Gantt and Lies’ departure from Patient Communications Systems (PCS), a company which developed and sold computer software to dentists. Gantt joined PCS in July 1986 and became its president and chief executive officer in May 1988. Although there was no written contract when Gantt began work in 1986, PCS agreed to pay him an annual salary of $75,000; PCS increased the salary with Gantt’s promotions. Because of company cash flow problems, Gantt agreed that instead of receiving his salary, he would let it accrue on the company records.

The other individual appellant here, Donald Lies, became a director of PCS in December 1987 and resigned in September 1988. There was no evidence of a written employment contract between Lies and PCS.

In December 1988, internal tensions at PCS and the perception that Gantt was not committed to PCS goals, resulted in Gantt being terminated as CEO and president of the company. After this significant demotion, he resigned from any remaining employee responsibilities at the company.

When Gantt left PCS, he had accrued $42,000 in back salary. As a deduction from that accrued salary, Gantt claimed that he had purchased a laserjet printer from the company, a policy which had been authorized by the PCS board of directors.

After leaving PCS, Gantt and Lies formed the new company EPT, which was a direct competitor to PCS.

In May 1989, a PCS representative contacted police and reported that Gantt had “stolen” various equipment from PCS. The PCS representative did not tell the police that the allegedly stolen items had been deducted from Gantt’s accrued salary.

In the meantime, as part of the EPT marketing strategy, Gantt attended a nationwide dental convention in May 1989. Pursuant to PCS’ communications with the police at the same time, Gantt was arrested at the convention for possession of stolen property and the police confiscated the laserjet printer. Gantt was subsequently released and all charges were dismissed. Three days after Gantt’s release, 500 commercial flyers which EPT had prepared to distribute at the dental convention were defaced with the words: “Beware David Gantt, Executive Pres Arrested from Exhibit Hall, and Stolen Equipment Confiscated.” Trial testimony established that the confiscation of the printer, Gantt’s arrest, and the dissemination of the flyers adversely affected EPT’s convention business.

In June 1989, PCS filed suit against Gantt, Lies and EPT claiming, in essence, that between June and December 1988, PCS funds, time, and equipment were diverted to EPT. In response to the complaint, Gantt, Lies and EPT filed a counterclaim alleging breach of contract and various torts, including false arrest and imprisonment, defamation, slander, libel and tortious interference with business relations.

The case was tried for four days before a jury, at which time the trial court granted Gantt, Lies and EPT’s motions for directed verdict and dismissed PCS’s complaint in its entirety. In like manner, the trial court granted PCS’s motion for directed verdict on the counterclaims.

1. In their first enumeration of error, Gantt, Lies and EPT argue that the trial court erred in directing a verdict on their claims of breach of contract since PCS did not pay salary and benefits to Gantt and Lies which it agreed to pay.

At the outset, we note that “in considering a motion for directed verdict, the evidence must be construed most favorably to the party opposing the motion.” Brown v. Commercial Credit &c. Corp., 172 Ga. App. 568, 572 (323 SE2d 822) (1984). A directed verdict is only authorized if there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a particular verdict. Brown, supra at 572; see OCGA § 9-11-50 (a).

Here there was no written employment contract for either Gantt or Lies. Nevertheless, as to Gantt’s salary claim we find that “an employee may sue on an oral contract for employment terminable at will ‘for the amount of compensation due him, based upon services actually performed by him up to the time of his discharge, and not for damages or for compensation for services not performed or for any breach of contract.’ [Cits.] . . . ‘(W)hen the employee has actually performed services (under a contract terminable at will) he may recover of the employer the compensation due him for the services rendered.’ ” E. D. Lacey Mills v. Keith, 183 Ga. App. 357, 359-360 (359 SE2d 148) (1987), citing Spindel v. Nat. Homes Corp., 110 Ga. App. 12, 15 (137 SE2d 724) (1964). Here, from the evidence presented, a jury could have found that Gantt was entitled to recover salary for the work he had already performed and the directed verdict as to these amounts was improperly granted. Similarly, there was evidence from which a jury could conclude that Gantt’s claim for $125,000 he lost on a sale of company stock was an enforceable promise from PCS to pay and the trial court’s grant of summary judgment on this claim was also improper. See Lacey, supra at 360.

The same reasoning governs our decision regarding Lies’ claim for the $15,000 bonus which PCS promised him. Trial testimony indicated that the bonus was for work which Lies had already performed, and that the bonus had been recorded on PCS’ records as a specific corporate debt. Given these two factors, we find that Lies’ claim was legally enforceable, and the granting of the directed verdict on this amount was improper. See Quinn v. Cardiovascular Physicians, P. C., 254 Ga. 216, 220 (326 SE2d 460) (1985); Medlin v. Globe Continental Corp., 171 Ga. App. 103, 104 (318 SE2d 807) (1984); compare Christensen v. Roberds of Atlanta, 189 Ga. App. 289 (375 SE2d 267) (1988).

Finally, we address Gantt’s claim for termination benefits. The only written evidence of the agreement regarding termination benefits was minutes from a May 1988 board of directors’ meeting in which it was resolved that “David Gantt will receive twice his highest yearly earnings at the time of dismissal from PCS.” The question before us is whether Gantt’s termination as PCS president and CEO compelled his subsequent resignation as a company employee as to entitle him to termination benefits.

In determining whether Gantt’s departure from PCS was voluntary, we are guided by Fletcher v. Amax, 160 Ga. App. 692 (288 SE2d 49) (1981) on appeal after remand, 166 Ga. App. 789 (305 SE2d 601) (1983), in which the court addressed a similar question. There, it was determined that a question of fact remained in the case as to the voluntary nature of the employee’s resignation since management and ownership had changed hands and the employee’s resignation might have been at the will of the company. A similar result must be reached here, since we cannot say as a matter of law that Gantt’s departure from PCS was voluntary. The trial court’s granting of the directed verdict on these amounts was improper, since a question remained for the jury.

2. In the second enumeration of error, Gantt contends that the trial court erred in directing a verdict on his counterclaim for malicious arrest and false imprisonment.

(a) Gantt claims that his arrest for possession of stolen property was malicious, since PCS had transferred the property to him in lieu of salary and was aware that the property was not stolen. At trial, an invoice reflecting the transfer of equipment to Gantt and minutes from the PCS board of directors’ meeting supported the fact that he had purchased the equipment out of his accrued salary and that PCS was aware of this arrangement.

OCGA § 51-7-1 provides that “[a]n arrest under process of law without probable cause, when made maliciously, shall give a right of action to the party arrested.” An action for false árrest may lie when there has been an arrest under warrant, or when as in this case, the arrest was without a warrant. Smith v. Embry, 103 Ga. App. 375 (119 SE2d 45) (1961).

Lack of probable cause is defined in OCGA § 51-7-43 as existing “when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused.” Unless the facts regarding probable cause are undisputed, it is a question for the jury. See Bennett v. Fine Jewelers &c., 194 Ga. App. 377 (390 SE2d 625) (1990); Harmon v. Redding, 135 Ga. App. 124 (218 SE2d 32) (1975).

Here, since evidence existed from which a jury could have found that PCS’ motivation in pursuing Gantt’s arrest was malicious and that PCS lacked probable cause, the trial court’s grant of the directed verdict on the false arrest claim was error.

(b) The trial court’s ruling on Gantt’s claim of false imprisonment was also improper. “[T]he law has always made a fundamental distinction between a detention effectuated pursuant to process and detention which is not predicated on process. ‘(A)n action for false imprisonment will lie where a person is unlawfully detained under a void process, or under no process at all, and can not be maintained where the process is valid, no matter how corrupt may be the motives of the person suing out the process or how unfounded the imprisonment may be.’ [Cit.] Thus, when the detention is predicated on no process, false imprisonment is an available remedy and liability depends upon whether a detention without supporting process was legally authorized under the circumstances. See generally Collins v. Sadlo, 167 Ga. App. 317 (306 SE2d 390) (1983).” Williams v. Smith, 179 Ga. App. 712, 714 (348 SE2d 50) (1986). See also OCGA §§ 51-7-20; 51-7-21.

Here, the California police officers who arrested Gantt had no warrant and there was evidence from which a jury could have concluded that Gantt’s arrest and detention were not legally authorized. Compare Carruth v. Roberts, 189 Ga. App. 247 (375 SE2d 499) (1988). Therefore, the trial court erred in directing a verdict on the false imprisonment claim.

3. In his third enumeration of error, Gantt claims the trial court erred in granting a directed verdict on his claim for defamation, slander and libel. This claim focuses on three separate items: the allegedly libelous flyer disseminated at the dental convention, the allegedly libelous “proof of claim” forms which PCS submitted to its insurer and the allegedly slanderous statements made by PCS officers to third parties regarding the crimes Gantt had committed.

We first address the claims for libel with respect to the flyer and the insurance forms. At the outset we conclude that there was evidence from which a jury could have concluded that the documents were libelous. See Western Union Tel. Co. v. Vickers, 71 Ga. App. 204 (30 SE2d 440) (1944); OCGA § 51-5-1. Therefore, we address only the issue of PCS’ responsibility for publication of the documents.

“Generally, the rule of respondeat superior (the principal is liable for the torts of its employee committed while acting in the scope of employment) is applicable in libel cases. [Cits.]” Ray v. Henco Electronics, 156 Ga. App. 394, 395 (274 SE2d 602) (1980). In other words in determining a principal’s liability, there is no requirement that an agent be expressly directed by the principal to publish a libel. Mulherin v. Globe Oil Co., 173 Ga. App. 790 (328 SE2d 406) (1985). With respect to the insurance forms, there was ample evidence that they were completed by PCS employees while in the scope of their employment for PCS and the direction of the verdict on this portion of the claim was erroneous.

Similarly, the trial court’s grant of the directed verdict on Gantt’s claims arising from the publication of the flyer was improper. Although the defaced flyer creator denied any involvement of PCS in the creation of such document, the parties stipulated that he was a PCS shareholder, a former member of the PCS board of directors and the author of a PCS software package. A question for the jury remained as to whether this person acted as an agent for the corporation in publishing the flyer. See Garren v. Southland Corp., 237 Ga. 484, 485 (228 SE2d 870) (1976).

The trial court properly granted a directed verdict with respect to the claims of slander. “[A] corporation is not liable for the slanderous utterances of an agent acting within the scope of his employment, unless it affirmatively appears that the agent was expressly directed or authorized to slander the plaintiff.” Garren, supra at 485. In the absence of evidence that PCS directed the comments to be made, the grant of the directed verdict was proper. See Garren, supra; Church of God v. Shaw, 194 Ga. App. 694 (391 SE2d 666) (1990).

Decided June 11, 1991.

Remler, Koski & Near, Albert N. Remler, Robert C. Koski, Middleton & Anderson, Robert H. Benfield, Jr., for appellants.

Lawrence E. Burke, B. Glenn Johnson, for appellee.

4. Finally, EPT, Gantt and Lies claim that the trial court erred in granting the directed verdict on their counterclaim for tortious interference with business relations.

Georgia recognizes a cause of action where one maliciously and wrongfully and with intent to injure, harms the business of another. Bodge v. Salesworld, 154 Ga. App. 65 (267 SE2d 505) (1980); NAACP v. Overstreet, 221 Ga. 16, 21 (142 SE2d 816) (1965). Here, there was evidence from which a jury could have found that PCS both intended and did harm EPT’s business and the direction of the verdict was improper.

Judgment affirmed in part, reversed in part.

Sognier, C. J., and McMurray, P. J., concur.


text:
    A91A0459.
    ENGRAM v. SONNY CAMPBELL’S GULF, INC.
    (406 SE2d 551)
   Carley, Judge.

The relevant facts in this appeal are as follows: An employee of appellee-defendant’s service station erroneously began to pump gasoline into appellant-plaintiff’s diesel automobile. When this mistake was discovered, it was agreed that the fuel tank would not be drained but would simply be filled with diesel fuel. Four days later, the car stopped running and was towed to appellee’s service station for repair. Subsequently, however, appellee determined that a diesel mechanic should make the repairs and it towed the car to Evans Auto Repair (Evans) for that purpose. Although appellant’s prior approval had not been obtained, he ratified the removal of his car to Evans and authorized Evans to make the repairs. When appellant was subsequently informed that appellee would not pay for the repair work, he had his car moved from Evans and repaired elsewhere. Thereafter, appellant brought the instant suit, seeking to recover for alleged property damage to his car. The case was tried before a jury and a verdict in favor of appellee was returned. Appellant appeals from the judgment that was entered by the trial court thereon.

1. One of appellant’s contentions was that his automobile had originally been damaged by the gasoline pumped into it by appellee’s employee. However, the evidence was in dispute as to whether appellant’s car had stopped running because of the gasoline pumped into it four days earlier or whether some other mechanical factor having no connection with the gasoline was the cause. The jury, as it was authorized to do, obviously found that appellant’s car had not been damaged by the gasoline and that appellee was not liable under this theory. Appellant’s other contention was that, regardless of the reason why repair work had originally been necessary, his car had also been damaged while in the possession of Evans and that appellee was vicariously liable for this further damage. Appellant moved for a directed verdict as to appellee’s liability under this theory and the denial of that motion is enumerated as error.

A bailment arose when appellant’s car was towed to appellee’s service station for repair. “The relationship of the owner of an automobile and the owner of the garage in which the automobile is stored is that of bailor and bailee. The bailee is bound to use ordinary care for the safekeeping and return of the automobile.” OCGA § 44-12-77. “The bailee becomes . . . such an agent of the bailor as that he is required not only to use the property for the special object only for which he was entrusted with it, and in conformity with the purpose of the trust, but also to act in good faith with the bailor and his interests.” Haines v. Chappell, 1 Ga. App. 480, 482 (58 SE 220) (1907). “Usually, where a bailee is entrusted with valuable property, he cannot shift his responsibility of accounting for it by showing that a wrongful conversion of the property was committed by another person to whom he delegated the duty imposed upon himself alone; for, as a general rule, he would be held to have employed such other person at his own peril, and every act of his agent would, in law, be the act of himself.” Merchants Nat. Bank of Savannah v. Carhart, 95 Ga. 394, 398 (2) (22 SE 628) (1894). Thus, appellee proved no viable defense to potential liability simply by showing that, after appellant had entrusted his car to it, it had then entrusted appellant’s car to Evans.

However, the record shows more than appellee’s mere unilateral entrustment of appellant’s car to Evans. The undisputed evidence shows that appellant himself ratified the entrustment of his car to Evans. Appellant communicated with Evans “when [his car] first arrived there” and frequently thereafter and he specifically authorized Evans to make the repairs. Thus, appellant would be estopped to assert that it was appellee, rather than Evans, who was finally accepted by him as the bailee of his car. “Where the principal, with knowledge of all the facts, adopts and acquiesces in the acts done under an assumed agency, he cannot afterwards be heard to impeach them, under the pretense that they were done without authority or even contrary to instructions.” (Emphasis omitted.) Perry v. Hudson, 10 Ga. 362 (2) (1851). Thus, the undisputed evidence of record shows that appellant’s bailment theory of liability would be assertable only as against Evans directly rather than as against appellee vicariously.

Decided June 11, 1991.

H. Arnold Hammack, for appellant.

B. Samuel Engram, Jr., pro se.

Watson, Spence, Lowe & Chambless, Stephen S. Goss, for appellee.

Moreover, even if appellee could be held vicariously liable, appellant otherwise failed to prove damages under this bailment theory. There is evidence that the engine of appellant’s car was disassembled by Evans and was never reassembled. However, Evans was authorized to repair appellant’s vehicle and there is absolutely no evidence that the disassembly of the engine would constitute actionable damage rather than authorized repair. It was appellant, not Evans, who had terminated the bailment before repairs were completed and who had insisted on the return of his automobile notwithstanding its disassembled engine. Although there was evidence that not all of the parts of the engine were returned to appellant by Evans, there is absolutely no evidence as to the diminished value of the engine without these parts.

It follows that, if the trial court erred in connection with the bailment theory of appellee’s liability, it was clearly not in failing to grant a directed verdict in favor of appellant. There being no evidence to authorize a verdict in appellant’s favor under this theory, it is appellee who was entitled to a directed verdict.

2. The giving of a contested charge relating to the bailment theory does not mandate reversal. Even if the charge was erroneous, it was harmless since the bailment theory was not otherwise viable as against appellee.

3. Appellant sought to introduce evidence that, on a prior occasion, his diesel automobile had been filled entirely with gasoline by one of appellee’s employees. The trial court’s refusal to admit this evidence is enumerated as error.

The trial court was authorized to find that appellant had failed to meet the burden of showing substantial similarity between this prior occurrence and the instant occurrence wherein his diesel automobile had been less-than-half filled with gasoline. “ ‘While the relevancy of other occurrences is ordinarily within the sound discretion of the court, “it is necessary that the conditions of the things compared be substantially similar.” (Cit.) Without a showing of substantial similarity, the evidence is irrelevant as a matter of law and there is nothing upon which the court’s discretion can operate. (Cits.)’ [Cit.]” Meacham v. Barber, 183 Ga. App. 533, 535 (1) (359 SE2d 424) (1987).

Judgment affirmed.

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


text:
    A91A0571.
    REYNOLDS v. THE STATE.
    (406 SE2d 553)
   Beasley, Judge.

Appellant was convicted of rape (OCGA § 16-6-1), burglary (OCGA § 16-7-1), and simple battery (OCGA § 16-10-95). The defense to rape was consent.

The evidence is as follows. The victim lived alone. On April 28, 1989, she arrived home from work at approximately 7:30 p.m. and saw appellant seated on the front steps of the house next door. She said hello to him but they had no further conversation. At approximately 12:30 a.m., the victim found herself being awakened by an unknown male in her bedroom who told her he wanted to have sex with her. She struggled, but he punched her on the temple and jaw with such force that she realized that she could do nothing to stop him. He then raped her. To get her to remain still while he raped her, he gouged her eyes with his fingers. Afterward, he told her that if she said anything to the police he would kill her. She testified that he had a tattoo on his right arm and that his hands “stunk like cigarettes.”

Appellant testified that after meeting the victim, he went over to her house the same night. Rather than knocking on the front door, he entered through an elevated but unlocked sliding glass door in the back of the house notwithstanding the fact that there was a table in front of the door. The woman consented to have sex with him but afterwards they began to argue. She threatened “to call the cops,” and they then began to scuffle.

After the rape, the victim drove to a gas station and reported the rape to a police officer on the premises. She was taken to the hospital and examined by Dr. Nassour, an emergency room physician. After stating that he had gone through medical school, a one-year internship, a one-year residency, and had 14 years’ experience in emergency medicine, Dr. Nassour testified that the victim had a hematoma (a knot on her head), bruises over the right eye and the right side of her neck, and a possible broken jaw.

Appellant became a suspect after he approached an investigator and told him that on the night of the rape he and his girl friend were sitting on the front porch of the house adjacent to the victim’s; he heard a woman scream at approximately 1:00 a.m. and later saw a car drive off, although he could not identify the car. The investigator noticed that appellant had a tattoo, was smoking cigarettes, and fit the description of the rapist given by the victim. In later questioning by the police, appellant “started crying and stated that he did go into the house and had sex with the girl.”

Decided June 11, 1991.

James E. Greene, for appellant.

Darrell E. Wilson, District Attorney, Kimberly L. Schwartz, Assistant District Attorney, for appellee.

1. In his first three enumerations, appellant challenges the sufficiency of the evidence to support the guilty verdict. Construed in a light most favorable to the verdict, the evidence was sufficient to authorize a rational trier of fact in finding the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant enumerates error on the trial court’s charge to the jury that the law permits experts to testify as to their opinions derived from their knowledge of particular matters but that the weight to be given expert testimony, like that of any other witness, is to be determined by the jury, and that the jury is not bound by expert testimony.

Appellant’s complaint is that the charge was prejudicial because the court never ruled that Dr. Nassour was a medical expert.

Dr. Nassour clearly qualified as an expert witness. See OCGA § 24-9-67. No objection was made to his testimony as to his qualifications or as to his substantive testimony. Appellant thus waived any objection to his testimony as an expert. See, e.g., Gattlen v. State, 134 Ga. App. 71 (213 SE2d 173) (1975). The charge was not improperly given because it was based on the evidence and informed the jury as to the law to apply to such evidence.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


text:
    A91A0573.
    DAVIS v. THE STATE.
    (406 SE2d 555)
   Cooper, Judge.

Appellant was charged and convicted of violating the Georgia Controlled Substances Act (two counts) and various traffic offenses. He was sentenced to life imprisonment pursuant to OCGA § 16-13-30 (d) for a conviction of possession of cocaine with intent to distribute and received four 12-month sentences for the remaining drug count and each of the traffic offenses. He appeals his conviction and life sentence raising five enumerations of error.

While on routine patrol in a marked police car, an officer observed a car travelling without taillights. He turned on his blue lights and siren and attempted to stop the vehicle; however, the car sped up. The officer chased the car for approximately three-quarters of a mile, reaching speeds up to 60 mph in a 35 mph zone, until the vehicle finally stopped, and appellant jumped out of the driver’s side and approached the officer at the rear of the car. The officer requested appellant’s driver’s license and proof of insurance, which were in the glove compartment. When appellant opened the passenger-side door to get the documents, a glue tube containing six small pieces of crack cocaine and several plastic bags containing marijuana fell out of the car and onto the ground. Appellant and a passenger, who was seated in the front seat, were arrested and tried jointly.

1. Appellant enumerates as error the trial court’s failure to grant his motion in limine and the admission of his prior conviction of possession of cocaine with intent to distribute. “ ‘Evidence of similar crimes is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact.’ [Cit.] Before such evidence may be admitted, however, there must be evidence the defendant was the perpetrator of the independent crime and sufficient similarity or connection between the independent crime and the offense charged that proof of the former tends to prove the latter. [Cit.] Under the circumstances of this appeal, these conditions were satisfied, and the trial court did not err by admitting this evidence.” Harris v. State, 196 Ga. App. 796 (4) (397 SE2d 68) (1990).

2. In his second and third enumerations of error appellant contends the trial court erred in allowing the arresting officer to testify regarding his approximately 30 prior drug arrests, in qualifying the officer as an expert witness on the “uses and activities of drugs on the street and how they are dealt” and in allowing the officer to state his opinion as to the amount of cocaine a person could possess for distribution purposes. The officer testified, based upon his training and experience working on the street, that the amount of cocaine discovered would generally be for distribution, as opposed to personal use. Appellant maintains that the question of whether the six pieces of crack cocaine were for personal use or distribution was not beyond the ken of the average layman and that although the jury was charged on both simple possession and possession with intent to distribute, such testimony was an improper statement of the ultimate fact which invaded the province of the jury and led the jury to convict on the greater offense. We disagree.

“ ‘ “To qualify as an expert . . . generally all that is required is that a person must have been educated in a particular skill or profession: his special knowledge may be derived from experience as well as study. (Cits.) Formal education in the subject at hand is not a prerequisite for expert status.” [Cits.]’ [Cit.] ‘It is a matter within the sound discretion of the trial judge as to whether a witness has such learning and experience in a particular area to be deemed expert. [Cit.]’ [Cit.]” Washington v. State, 194 Ga. App. 756 (1) (391 SE2d 718) (1990). The officer’s testimony that he was a 13-year veteran with the City of Quitman Police Department, having made between 20 and 30 drug arrests, received additional training and instruction about drugs and participated in various undercover operations, was relevant and sufficient as a foundation for the officer’s designation as an expert on the subject of the street sale of drugs. Therefore, we find no abuse of discretion in the admission of the officer’s testimony regarding his prior drug arrests or in his qualification as an expert.

We also find no error in the admission of the opinion testimony. “ ‘Expert opinion testimony on even the ultimate issue is admissible where the conclusion of the expert is one beyond the ken of the average layman.’ [Cit.]” Harwood v. State, 195 Ga. App. 465 (1) (394 SE2d 109) (1990). We must note that having reviewed the officer’s testimony, it is clear that his statements were general in nature and did not state an opinion as to the ultimate issue, that the amount of cocaine discovered was for purposes of distribution. Moreover, unlike OCGA § 16-13-31, in which the requisite quantity and purity of cocaine which authorizes a conviction of trafficking in cocaine is specified in the statute, OCGA § 16-13-30 sets forth no quantities to distinguish mere possession and distribution. In our view, knowledge of the amount of crack cocaine one would generally possess for personal use or the amount which might evidence distribution is not necessarily within the scope of the ordinary layman’s knowledge and experience. Therefore, the testimony was properly admissible under OCGA § 24-9-67. See Harwood, supra.

3. Appellant contends the trial court erred in overruling his motion for directed verdict on the grounds of insufficiency of the evidence as to possession of cocaine with intent to distribute. However, there was ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of all the offenses of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

4. Finally, appellant enumerates as error the imposition of a life sentence pursuant to OCGA § 16-13-30 (d). This enumeration is without merit. The record reflects that in an earlier appearance in Brooks County Superior Court, the court accepted appellant’s guilty plea to the charge of possession of cocaine with intent to distribute (OCGA § 16-13-30 (b)) and entered a conviction and sentence thereon. Appellant was represented by counsel and was advised of his rights and the consequences of such a plea. OCGA § 16-13-30 (d) makes the imposition of a life sentence mandatory upon a second conviction of OCGA § 16-13-30 (b). Therefore, the trial court did not err in sentencing appellant to imprisonment for life.

Decided June 11, 1991.

H. B. Edwards III, for appellant.

H. Lamar Cole, District Attorney, Bradfield M. Shealy, Assistant District Attorney, for appellee.

Judgment affirmed.

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