author: Banke, Presiding Judge. Beasley, Judge, Benham, Judge,

text:
    73725.
    PROPHITT v. THE STATE.
    (358 SE2d 892)
   Banke, Presiding Judge.

Ben David Prophitt was convicted of two counts of aggravated assault. The evidence presented at trial established that as appellant was operating a glue machine at his place of employment, a verbal altercation ensued between him and a co-worker, following which he hit the co-worker with a hammer and shot him with a .25-caliber automatic revolver. He then ran to another area of the plant, where he shot a second co-worker three times. Testifying in his own behalf at trial, appellant admitted the shootings but contended that he had acted in self-defense. His trial counsel asserted the defense of mental incapacity. See generally OCGA § 16-3-2. Held:

1. Because the appellant had raised the defense of insanity, the trial court charged the jury in accordance with OCGA § 17-7-131 (b) (3), which provides as follows: “In all cases in which the defense of insanity is interposed, the trial judge shall charge the jury, in addition to other appropriate charges, the following: (A) I charge you that should you find the defendant not guilty by reason of insanity at the time of the crime, this court will maintain custody and control of the defendant until the court is satisfied that the defendant is not a danger to himself or to others. (B) I charge you that should you find the defendant guilty but mentally ill at the time of the crime, the defendant will be given over to the Department of Corrections or the Department of Human Resources, as the mental condition of the defendant may warrant.”

After the jurors had begun their deliberations, they asked for a “brief definition” of the possible verdicts they would be authorized to return. In response, the trial court instructed them, in pertinent part, that “a verdict of not guilty by reason of insanity would discharge [the appellant] from the offense charged, [and] he would be committed to the Department of Human Resources until he is no longer a danger to himself or others.” As this language was at best ambiguous with regard to the crucial issue of who would have custody and control of the appellant and who would ultimately have the authority to discharge him in the event he were found not guilty by reason of insanity, we must agree with the appellant that the recharge constituted reversible error. Accord Loftin v. State, 180 Ga. App. 613 (3) (349 SE2d 777) (1986).

2. The state was allowed to introduce a certified copy of the appellant’s 1973 conviction of aggravated assault with a pistol, subject to the limiting instruction that it was to be considered solely on the issue of the appellant’s state of mind. The appellant contends that this prior offense was irrelevant to the only contested issue which was his mental capacity at the time that the present shootings were committed.

This issue has been decided adversely to the appellant in Blake v. State, 239 Ga. 292 (236 SE2d 637) (1977), where the Supreme Court ruled admissible, evidence of a prior criminal act when the defendant’s character was not in issue and when the only issue was his sanity at the time of the crime. The Court determined: “Evidence which is material and competent is not to be excluded merely because it is prejudicial. [Cit.] [The] testimony was both material and competent to show the state of mind, plan, and motive of the defendant. It tended to rebut his claim of insanity by showing a course of conduct ... as contrasted to an act carried out while insane. Testimony relating to other crimes is admissible if such testimony aids in identification or shows the state of mind, plan, motive, or scheme of the accused.” Id. at 295. See also State v. Johnson, 246 Ga. 654, 655 (272 SE2d 321) (1980).

Judgment reversed.

Birdsong, C. J., McMurray, P. J., and Sognier, J., concur. Beasley, J., concurs specially. Carley, J., concurs in Division 1 and in judgment. Been, P. J., Pope and Benham, JJ., concur in part and dissent in part.

Beasley, Judge,

concurring specially.

1. I concur in Division 1 of the majority opinion and so concur in reversing the conviction. However, I cannot concur in Division 2 and am of the opinion that the admission of the prior offense was also reversible error.

2. As the trial court instructed the jury, the aggravated assault of twelve years previously was “admitted solely for the jury to consider only as it might tend to illustrate the defendant’s state of mind on the subject involved, if you think it does so illustrate and for that purpose alone.” The court continued the restrictive caution: “You are not to consider evidence of any other possible offense or offenses for any other purpose, . . . you are considering it solely with reference to the mental state[,] intent or identity of the defendant insofar as the same is applicable to or referred to or illustrates the charges contained in this bill of indictment and for no other purpose.” Of course, there was no issue as to identity, so that reference is superfluous.

The sole defense was mental capacity or illness at the time of the commission of the offense on trial, and in the final instructions, the court charged at length on the subjects of insanity and mental illness at the time of the act and the effect of a finding of either on the verdict to be rendered.

It is true that evidence of independent crimes is admissible under certain circumstances when the issue is state of mind. Walrauen v. State, 250 Ga. 401, 408 (4) (b) (297 SE2d 278) (1982). What is meant by “state of mind?” As adopted in Walrauen, “ ‘The state of mind that will permit the admission of an unrelated crime is the state of mind at the time of the commission of the offense as shown by the acts or words of the defendant so close in time to the alleged offense as to have a bearing upon his state of mind at that time. Defendant’s conduct over the years cannot be shown to prove that he has a depraved or wicked state of mind generally.’ [Cit.]”

The majority cites Blake v. State, 239 Ga. 292 (236 SE2d 637) (1977) as authority for the admissibility of the evidence here at issue. In that case, the Court recognized that defendant’s prior threat against a child in order to influence the mother, his former wife, to accede to his wishes was material and competent to show his “state of mind, plan, and motive,” tending to rebut the defense of insanity on the occasion in question “by showing a course of conduct.” The time relationship between the prior incident in Blake and the crime on trial, the killing of the child of his girl friend with whom he had had a fight, is not evident from the opinion. Here, the prior aggravated assault is remote in time, having occurred over a decade earlier, and in my opinion is irrelevant in that it does not tend to serve the only relevant purpose for which it was offered and admitted, i.e., defendant’s state of mind when he committed the acts for which he was on trial.

State v. Johnson, 246 Ga. 654 (272 SE2d 321) (1980), also cited by the majority, is also not supportive. It involves the admissibility of evidence of two subsequent drug sales, in a case involving a conviction for sale of marijuana. The Supreme Court held that it “was probative as to identity, the main issue in the case.” Id. at 655. Thus it does not involve the relationship of a remote-in-time crime to the issue of state of mind, which we have here.

Decided June 17, 1987.

Christopher W. Duncan, for appellant.

Michael H. Crawford, District Attorney, E. J. McCollum, Assistant District Attorney, for appellee.

Since the prior aggravated assault was not relevant to the issue of defendant’s state of mind at the time he shot at Randy Barrett with a pistol at the plant, its admission contravened OCGA §§ 24-9-2 and 24-9-20 and requires reversal.

Benham, Judge,

concurring in part and dissenting in part.

While I concur with the majority’s holding in Division 2, I must dissent from the reversal of appellant’s conviction based upon the giving of what the majority perceives to be an “at best ambiguous” recharge on a verdict of not guilty by reason of insanity. As pointed out by appellant and acknowledged by the majority, the trial court had previously informed the jury of the tenets of OCGA § 17-7-131 (b) (3). It is my opinion that this factual distinction makes Loftin v. State, 180 Ga. App. 613 (3) (349 SE2d 777) (1986), inapplicable to the case at bar. Here, the jury was given a charge in the language of OCGA § 17-7-131 (b) (3) (A); the Loftin jury was not. I would affirm appellant’s convictions for aggravated assault.

I am authorized to state that Presiding Judge Deen and Judge Pope join in this opinion.


source: Caselaw Access Project

author: McMurray, Presiding Judge. Beasley, Judge,

license: Public Domain

text:
    73768.
    COALTER v. THE STATE.
    (358 SE2d 894)
   McMurray, Presiding Judge.

Defendant was indicted for the offenses of rape, aggravated assault, aggravated sodomy, solicitation of sodomy and false imprisonment. A jury found defendant guilty of aggravated assault, solicitation of sodomy and false imprisonment. A not guilty verdict was returned as to the offense of aggravated sodomy and a mistrial was declared as to the rape charge. Defendant appeals. Held:

1. Defendant contends that the verdicts of guilty as to the offenses of aggravated assault and false imprisonment are not authorized by the evidence. The State’s evidence shows that: The victim encountered defendant and a friend at a bar. After some conversation the victim left the bar with defendant and his friend, and they drove to an apartment. The defendant’s friend remained at the apartment. Defendant drove away with the victim, who recognized that they had taken a road leading out of town and asked the defendant to turn around. Defendant continued driving out of town and finally pulled into a field road. There the defendant put a gun to the victim’s head and demanded that she commit oral sex on him or he would shoot her. The victim refused and defendant grabbed the victim’s arm and kept trying to make her comply with his demand. After the victim would not comply with his demand, defendant showed the victim “the bullets,” told her the gun was not loaded and laid the gun down. Defendant then forced the victim out of the car, opened the car’s hatchback and had the victim “lean over it.” At that time the victim’s pants were down and the defendant’s penis made contact with the victim’s anal area. The victim begged the defendant “not to do that” and defendant made the victim lay down on the ground and raped her.

Viewing the evidence in the light most favorable to the jury verdict, we conclude that the evidence authorized any rational trier of fact to find the defendant guilty beyond a reasonable doubt of the offenses of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Daughtry v. State, 180 Ga. App. 711 (1), 712 (350 SE2d 53); Smith v. State, 254 Ga. 591, 595 (3) (331 SE2d 578); Gilbert v. State, 176 Ga. App. 561, 562 (2) (336 SE2d 828).

2. Defendant’s remaining enumerations of error address the admission of certain similar transaction evidence. “Evidence of similar transactions or crimes is admissible when it is shown that the defendant is the perpetrator of the similar offense, and there is sufficient similarity between the independent crime and the offense charged that proof of the former tends to prove the latter. Davis v. State, 249 Ga. 309, 311 (1) (290 SE2d 273) (1982). Evidence of independent crimes has been admitted to show bent of mind and course of conduct and has been most liberally extended in the area of sexual offenses. Johnson v. State, 242 Ga. 649, 653 (3) (250 SE2d 394) (1978).” Davis v. State, 180 Ga. App. 190, 191-192 (2) (348 SE2d 730).

In the case sub judice, defendant argues that the witness presented by the State fails to establish that the defendant committed the independent crime of which the prosecution introduced evidence. The State’s similar transaction witness, a resident of Panama, testified to an incident in which she was raped and sodomized by defendant at Howard Air Force Base. She testified that she was watching television at a “dorm” and awaiting her boyfriend’s return when defendant invited her to his room to discuss her boyfriend, that once in defendant’s room he threatened her with a knife, forced her to take her clothes off, perform oral sodomy on him and to have sexual intercourse with him. Subsequently, the witness reported the incident to military police.

Defendant’s contention, that there was a lack of proof that he perpetrated an independent similar crime, is predicated upon the following circumstances. First, defendant relies upon the witness’ acknowledgment that she had told a security policewoman that the only reason she had made the statement against defendant was because she did not want her boyfriend finding out about the incident. This statement was explained to be due to concern that if her boyfriend learned of the incident the boyfriend would not want to see her anymore. Although the prosecuting attorney and subsequently the trial court, outside the presence of the jury, attempted to elicit some clarification from the witness as to her reasoning in regard to this statement, neither succeeded. While the testimony in the record regarding the witness’ motives in reporting the defendant’s crimes may remain ambiguous, such does not on its face contradict her unequivocal testimony that she was raped and sodomized by defendant.

We conclude that there is sufficient evidence to present a jury question as to whether defendant committed the independent similar crime. Miller v. State, 179 Ga. App. 100 (1), 101 (345 SE2d 647). Secondly, we find nothing impeaching the witness’ testimony in the simple fact that the witness had made no inquiry as to the disposition of her accusations against defendant. Finally, defendant relies upon the fact that the charges against him were dismissed following a hearing held pursuant to Article 32 of the Uniform Code of Military Justice (10 USCA § 832), “due to uncorroborated testimony.” However, it is not essential for admissibility that the similar crime resulted in a conviction. Green v. State, 178 Ga. App. 203 (2), 204 (342 SE2d 386). As there was no issue raised as to the similarity of the offenses, the prerequisites for the admission of similar transaction evidence were satisfied. Davis v. State, 180 Ga. App. 190, 191 (2), supra; Cunningham v. State, 255 Ga. 35, 37 (4) (334 SE2d 656).

Defendant also argues that the admission of the similar transaction evidence was a violation of double jeopardy safeguards in that the issues presented by that evidence had previously been resolved in his favor upon the hearing held pursuant to Article 32 of the Uniform Code of Military Justice (10 USCA § 832). This argument fails because a recommendation for dismissal arising from an Article 32 hearing is not acquittal or an equivalent resolution of factual issues in defendant’s favor. Compare Moore v. State, 254 Ga. 674 (333 SE2d 605). See generally OCGA § 16-1-8. The trial court did not err in admitting the similar transaction evidence.

Judgment affirmed.

Sognier, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

1. With respect to Division 1, I agree that the evidence in the record supports convictions of aggravated assault (by pointing a pistol at the victim, OCGA § 16-5-21 (a) (2)) and false imprisonment (by confining the victim, OCGA § 16-5-41 (a)). However, in summarizing the evidence, I do not believe we can say that the state’s evidence shows that defendant raped the victim. The jury could not reach a verdict on this charge, a mistrial was declared as to it, and the state subsequently filed a nolle prosequi.

2. Division 2 makes reference to “the independent crime.” The objection which created an issue was not based on whether defendant was the person who committed it or rather someone else. Instead, the issue was whether the incident constituted a crime. Defendant admitted having sexual relations with the witness who testified about the 1981 Panama incident but claimed that it was consensual and thus did not constitute a prior “crime” or “offense” and was inadmissible for that reason. I agree that there was sufficient evidence that non-consensual intercourse took place at the earlier incident so as to meet the prerequisites for admitting the testimony of the occurrence. The credibility and weight to be given to the testimony of the witness was a matter for the jury.

3. Defendant’s double jeopardy claim regarding the prior incident concerns only the federal constitutional collateral estoppel bar which is explained in Moore v. State, 254 Ga. 674 (333 SE2d 605) (1985). Although appellant in his enumeration cites also the Georgia constitutional provision against double jeopardy, he makes no argument to show that there was a violation of the state constitutional double jeopardy prohibition. Nor does he show that the collateral es-toppel concept is embraced in Georgia’s constitutional provision. None of the cases cited below or here deal with the question. Moore clearly was based only on a federal constitutional claim. Our opinion should thus be recognized as limited to this scope, as a state constitutional claim was not raised below and is not adequately raised here. Gabler v. State, 177 Ga. App. 3, 4 (2) (338 SE2d 469) (1985).

The gist of the alleged violation is that collateral estoppel applies to the Article 32 disposition, which according to defendant’s testimony constituted a dismissal “due to uncorroborated testimony.” I agree that this action by the United States military does not constitute collateral estoppel in the circumstances of this case such as to violate the federal double jeopardy clause, as prohibited under Ashe v. Swenson, 397 U. S. 436 (90 SC 1189, 25 LE2d 469) (1970). The fact of rape vel non was not litigated to a conclusion in defendant’s favor by the Article 32 proceeding.

Decided June 17, 1987.

Harry J. Fox, Jr., Laurens C. Lee, for appellant.

G. Theron Finlayson, District Attorney, Edward D. Lukemire, Assistant District Attorney, for appellee.


text:
    73794.
    NEWSOM v. THE STATE.
    (359 SE2d 11)
   McMurray, Presiding Judge.

Defendant appeals her convictions in the Superior Court of Pike County of three counts of theft by taking and twenty counts of financial transaction card fraud. Held:

1. Defendant’s convictions on the twenty counts of financial transaction card fraud were not authorized as the evidence did not establish proper venue. In each of these twenty counts, it was charged that defendant did “without authority and with intent to defraud the cardholder obtain goods, by presenting ... a financial transaction card being held by [defendant’s employer] to [a merchant] . . . .” This language charges a violation of OCGA § 16-9-33 (a) (2) (B). As to each count, the evidence creates the inference that the financial transaction card was presented and goods were received in a county other than that in which defendant was prosecuted.

Generally, the venue in a criminal case is in the county where the crime was committed. OCGA § 17-2-2 (a). The venue of a crime is a jurisdictional fact, and must be proved as a part of the State’s case. Dempsey v. State, 52 Ga. App. 35 (2) (182 SE 56).

Contrary to the State’s argument we find no language in OCGA § 16-9-33 (f), which would permit the prosecution of these offenses of financial transaction card fraud in Pike County. All of the elements of each of these offenses of which defendant was convicted occurred at a location outside Pike County.

2. In regard to her convictions of three counts of the offense of theft by taking, defendant contends the trial court erred in failing to instruct the jury that venue is an essential element of the State’s case. The venue, as to the offenses of theft by taking alleged in the indictment, was proved by uncontradicted evidence and the trial court charged on the State’s burden of proof including the law as to reasonable doubt. Under these circumstances there is no issue as to venue and there was no error in omitting from the charge reference to venue when stating the material allegations which the State was required to prove. Gresham v. State, 31 Ga. App. 779 (1) (122 SE 254); Haden v. State, 176 Ga. 304, 312 (15) (168 SE 272).

Decided June 17, 1987.

Virgil L. Brown, Michael D. Katz, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, J. David Fowler, Assistant District Attorney, for appellee.

Judgment affirmed as to the convictions and sentences on the theft by taking counts; judgment reversed as to the convictions and sentences on the financial transaction card fraud counts.

Sognier and Beasley, JJ., concur. Beasley, J., also concurs specially.

Beasley, Judge,

concurring specially.

I concur fully in the opinion. With respect to Division 1, the state’s effort to stretch OCGA § 16-9-33 (f) to cover the circumstances here is rendered untenable by the legislature’s provision of OCGA § 16-9-31 to cover what apparently occurred in Pike County. The distinction between financial transaction card theft (OCGA § 16-9-31) and financial transaction card fraud is discussed in Harris v. State, 166 Ga. App. 202, 204 (4) (303 SE2d 534) (1983). See also Thomas v. State, 176 Ga. App. 771, 774 (337 SE2d 344) (1985).


author: Benham, Judge.

text:
    74125.
    OWENS v. RMA SALES, INC. et al.
    (358 SE2d 897)
   Benham, Judge.

Appellant Owens created a latex paint remover called “Goof Off,” and in February 1980, contracted with appellee RMA Sales, Inc. (“RMA”), granting RMA “an exclusive worldwide distributorship to . . . sell, merchandise and distribute the [p]roduct.” The contract required RMA to purchase from Owens the amount of the product it would be selling for a set price per gallon. The length of the contract was perpetual, unless terminated by material breach or pursuant to contractual terms. Paragraph 12 of the contract provided that during the term of the contract and for 360 days thereafter, RMA and its shareholders “shall not, directly or indirectly, sell, merchandise, or distribute any latex paint remover or other product which ... is similar in nature to [Goof Off], to any person or entity whatsoever, regardless of the location of such person or entity.”

In March 1982, RMA allegedly began terminating its agreements with sales representatives who had been selling Goof Off and referring customers to another company, appellee Armann Products Corporation (“Armann”), which was promoting “Remover Plus”’ a product competing with Goof Off. Armann and RMA were composed of some of the same officers and major stockholders, including appellees R. L. Montgomery and R. M. Arnold. Appellant sued Montgomery, Arnold, and the two companies for damages and injunctive relief, based on their alleged breach of the contract and the covenant not to compete as set out in paragraph 12. Appellees moved to dismiss the complaint for failure to state a claim upon which relief could be granted, arguing that the contract was an undue restriction on competition. The trial court agreed and dismissed the complaint, from which appellant appeals. We affirm.

1. Appellant, relying on Hood v. Legg, 160 Ga. 620 (128 SE 891) (1925), contends that the provisions of the contract constituted a permissible covenant not to compete because it was ancillary to the sale of assets of a business to a corporation. We disagree. Our review of the contract shows that it was not in the nature of a sale of assets of a business to a corporation. No assets, stock, or goodwill were transferred from appellant to appellees; instead, appellees were specifically responsible for marketing and distributing the product on Owens’ behalf, and Owens retained the right to sell the product on his own to third parties. The terms of the arrangement made the covenant not to compete one that was ancillary to a franchise and distributorship agreement, which is treated as an employment contract. See, e.g., Richard P. Rita Personnel &c. v. Kot, 229 Ga. 314 (191 SE2d 79) (1972). Such a covenant “ ‘is enforceable only where it is strictly limited in time and territorial effect and is otherwise reasonable considering the business interest of the employer sought to be protected and the effect on the employee.’ [Cit.]” Jenkins v. Jenkins Irrigation, Inc., 244 Ga. 95, 98 (259 SE2d 47) (1979).

Appellant’s attempt to prevent appellees from marketing similar products “worldwide” or “to any person or entity . . . regardless of . . . location” is clearly not limited in territorial effect, and thereby renders the entire contract illegal. Nor can we apply, as appellant argues in his second enumeration, the “blue-pencil theory of severability,” since that argument has been rejected by the Supreme Court as to this category of restrictive covenant not to compete. Richard P. Rita Personnel &c., supra. Appellant was, no doubt, aware of the state of the law in this regard, since his counsel conceded below that “if Paragraph 12 is invalid then the whole contract is invalid.”

2. Appellant’s final contention is that the trial court should not have held the written agreement invalid without taking evidence to determine the reasonableness of the restricted activity in the particular factual context to which it would be applied. The trial court acted correctly in ruling as it did, as the language of the contract was required to be strictly construed. See Richard P. Rita Personnel &c., supra. Moreover, our review of the record reveals that Owens testified that the terms of the agreement were that appellees would not sell another product like Goof Off anywhere in the world, and, if they did, he would have the right to take back the product. This evidence was sufficient for the court to find that, as applied, the restriction was too broad.

Decided June 17, 1987.

A. Jack Hinton, Jr., Matthew J. Blender, Douglas R. Powell, for appellant.

Sidney L. Nation, William W. Lauigno III, for appellees.

3. Appellees’ motion for damages for frivolous appeal is denied.

Judgment affirmed.

Banke, P. J., concurs. Carley, J., concurs in the judgment only.


author: Banke, Presiding Judge.

text:
    74271.
    SMITH et al. v. FLEMING.
    (358 SE2d 900)
   Banke, Presiding Judge.

Acting as executor of the estate of Rachel M. Bradford, appellee sued the appellants, Franklin and Beula Smith, to collect the balance allegedly owed by them on an indebtedness evidenced by a promissory note. The Smiths counterclaimed for injunctive relief to prevent the appellee from interfering with their alleged right to recover the proceeds of certain savings accounts established by the decedent. The trial court granted summary judgment to the appellee on the main claim and denied summary judgment to the appellants on the counterclaim. This appeal followed.

It was established that the Smiths had received various amounts of money from the decedent during her lifetime and that Mr. Smith had drafted and delivered to her a document entitled “note” setting forth these amounts and promising to repay the money, in the total sum of $39,522.87. The Smiths made five monthly payments pursuant to the terms of this “note” prior to the decedent’s death but ceased making such payments at that time. The Smiths contend the alleged note is unenforceable because it was not signed and further contend that the decedent either intended the money to be an outright gift or, in the alternative, intended for any remaining indebtedness to be forgiven upon her death.

With respect to the claim involving the savings accounts, it was shown that the decedent had completed “change of information” cards on five accounts she owned at a savings and loan institution, thereby redesignating the accounts as being owned jointly by herself and Mrs. Smith. However, it was further shown that she had never completed signature cards reflecting these changes. None of the account agreements contained language expressly creating a survivor-ship interest; and the bank accordingly refused payment to the Smiths. Held:

1. We initially observe that even if the loan document did not constitute a promissory note, the appellee would still be entitled to summary judgment for money had and received if the evidence showed conclusively that the money was intended as a loan rather than a gift. An appellate court in reviewing a lower court decision will affirm a judgment which is right for any reason. See Collins v. McPhail, 213 Ga. 626 (100 SE2d 445) (1957).

Regardless of whether the loan document qualifies as a promissory note, it certainly constitutes evidence of an agreement between the parties “the intent of which is clearly discernible.” Daniels v. Allen, 118 Ga. App. 722, 726 (165 SE2d 449) (1968). The document, which was admittedly prepared by Mr. Smith, clearly evidenced an intent that the money was to be repaid, with interest. The trial court was entitled to reject as self-serving the Smiths’ testimony that the decedent intended the money as a gift rather than a loan. Accord Belote v. Belote, 167 Ga. App. 8, 10 (5) (306 SE2d 24) (1983).

A valid inter vivos gift requires three elements: Intention to give the gift, acceptance, and delivery. See OCGA § 44-5-80. The burden is on the party claiming the gift to prove all of the essential elements of a gift by clear and convincing evidence, although acceptance is presumed unless a contrary result is shown. See OCGA § 44-5-81; Freeman v. Freeman, 162 Ga. App. 433 (291 SE2d 770) (1982). The Smiths themselves obviously did not consider the money to be a gift, for they paid five monthly installments towards its repayment in accordance with the schedule set forth in the loan document prior to the decedent’s death. Their purported evidence that the loan was to be forgiven upon the decedent’s death was also properly rejected, as it was shown that the decedent left a will which contained no mention of such an intention; and it is well established that a valid, unambiguous will cannot be altered by evidence. See OCGA § 53-2-94; Hall v. Beecher, 225 Ga. 354 (168 SE2d 581) (1969). For these reasons, we hold that the trial court did not err in granting the appellee’s motion for summáry judgment for the balance owing on the loan indebtedness.

2. The appellants next aver that the trial court erred in denying their motion for summary judgment with respect to the issue of the ownership of the savings account deposits. It is apparent from the record that the savings account deposits which the appellants seek to recover in their counterclaim are not in the possession of the appellee but are still in the possession of the savings and loan association. It is also apparent, from the appellants’ brief, that the savings and loan association has filed a separate interpleader action, which is still pending, seeking to determine how to dispose of these funds. To the extent the appellants seek to recover these proceeds in the present action, the trial court was clearly not in a position to grant such relief, since the savings and loan association is not a party to the present action. Consequently, the trial court did not err in denying the appellants’ motion for summary judgment with respect to this claim.

Decided June 17, 1987.

Joseph H. Fowler, for appellants.

Herbert P. Schlanger, for appellee.

Judgment affirmed.

Carley and Benham, JJ., concur.


author: Sognier, Judge.

text:
    74300.
    RAMSEY v. THE STATE.
    (358 SE2d 902)
   Sognier, Judge.

Ramsey appeals from his conviction of three counts of armed robbery, five counts of aggravated assault, and possession of a firearm during commission of a felony. (Appellant was acquitted of kidnapping.)

1. Appellant contends that the trial court erred by charging the jury that aggravated assault was not a lesser included offense of armed robbery. This issue arose when the jury, during its deliberations, asked the court several questions, including the following: “What is. an assault? What is aggravated assault? . . . During the actual attempt of armed robbery, is that considered aggravated assault? . . .” In response to those questions, the court recharged the jury on the offenses of armed robbery and aggravated assault, and informed the jury that aggravated assault is not a lesser included offense of armed robbery. Appellant objected to this latter statement, arguing that if the jury believed his testimony, aggravated assault could be a lesser included offense.

To put this issue in proper perspective, a brief statement of the facts is necessary. The evidence disclosed that Randy Mitchell went outside his home, occupied by several members of the Mitchell family, to investigate why his dogs were barking. While checking the back of the house he was accosted by appellant, who was carrying a rifle and wearing a ski mask. Appellant forced Randy back inside the house, and then forced all occupants of the house into a bedroom. He ordered certain family members to tie up Randy Mitchell and Kenneth Daniel, the two adult males present. Appellant then made everyone present take off their jewelry and give it to him. Kenneth then said he had some money in his pants in another bedroom and appellant sent one of the women present after the money. While appellant was trying to watch the woman going to the second bedroom and also watch the persons in the first bedroom, Kenneth was able to free himself. He jumped up, grabbed appellant’s rifle, and a general free-for-all ensued, with several family members beating appellant and attempting to subdue him. The ski mask was pulled off during the struggle and appellant’s rifle was taken from him. Randy Mitchell finally got a shotgun and shot appellant in the leg. The police were called and appellant was told to remain on the porch, but he walked to a nearby house and crawled under the porch, where he was apprehended. The jewelry taken from members of the Mitchell family was retrieved from appellant’s pocket.

Appellant testified that earlier the same day he had given Kenny Mitchell $4,000 for the purchase of cocaine, and appellant went to the Mitchell home about 11:00 p.m. to get the cocaine. Randy Mitchell met appellant outside and said they did not have the cocaine and to come back later. Appellant got angry and said he wanted the cocaine or his money; Randy said he did not have either, and went in the house. Appellant then got the rifle from his car and followed Randy into the house. After an argument over the drugs, Kenny offered appellant the family jewels to keep until Kenny could get the drugs or get appellant’s money back to him. According to appellant, after he picked up the jewelry and took the clip out of his gun, Kenny jumped up, grabbed the gun and the fight began.

Appellant argues that if the jury believed his testimony, aggravated assault would be a lesser offense of the armed robberies charged, and thus, the court’s charge that aggravated assault was not a lesser offense was error. This argument is not well taken. Aggravated assault is not a lesser included offense of armed robbery as a matter of law, State v. Hightower, 252 Ga. 220, 222 (312 SE2d 610) (1984), although it may be included as a matter of fact. Hambrick v. State, 256 Ga. 148, 150 (4) (344 SE2d 639) (1986). The offenses of aggravated assault were charged as separate offenses, and taken in context, the court was informing the jury that aggravated assault was not a lesser included offense of the armed robberies charged, because any aggravated assaults were charged separately, and the jury should consider each charge separately. Since aggravated assault is not a lesser offense of armed robbery as a matter of law, and should not be included as a matter of fact when charged separately, the trial court’s charge was correct. Further, where the evidence shows completion of the greater offense, as here, it is not necessary for the court to charge on a lesser included offense. Hambrick v. State, 174 Ga. App. 444, 447 (2) (330 SE2d 383) (1985). Accordingly, we find no error in the court’s recharge to the jury in response to its question.

Decided June 17, 1987.

John 0. Ellis, Jr., for appellant.

Robert E. Wilson, District Attorney, Thomas S. Clegg, Barbara Conroy, Assistant District Attorneys, for appellee.

2. Appellant asserts that the charges for aggravated assault upon Kenneth Daniel, Darlene Daniel and Audrey Mitchell merged with the charges of armed robbery of those individuals. We agree.

The armed robbery indictments alleged that appellant, with intent to commit theft, took certain items from the immediate presence of Kenneth Daniel, Darlene Daniel and Audrey Mitchell “by the use of a rifle, the same being an offensive weapon.” The aggravated assault indictments alleged that appellant committed an assault upon the same three persons “with a rifle the same being a deadly weapon.” Thus, appellant’s pointing the rifle at these three individuals to effect the armed robbery is the act underlying appellant’s convictions for both armed robbery and aggravated assault upon those individuals. Therefore, the three convictions of aggravated assault at issue merge with the armed robberies of those three persons and must be set aside. Hambrick v. State, 256 Ga. 148, 150 (4), supra.

Although the State argues that the assaults occurred after the armed robberies were completed, the State’s own evidence disclosed that the robberies were still in progress when Kenneth Daniel freed himself, jumped up and grabbed appellant’s rifle. Therefore, the convictions of aggravated assault upon Kenneth Daniel, Darlene Daniel and Audrey Mitchell must be set aside. Id.

Judgment affirmed as to Counts 1, 2, 3, 5, 7 and 10. Judgment reversed as to Counts 6, 8 and 9.

McMurray, P. J., concurs. Beasley, J., concurs in Division 2 and in judgment only in Division 1.


author: Birdsong, Chief Judge.

text:
    74328.
    MILES v. THE STATE.
    (358 SE2d 904)
   Birdsong, Chief Judge.

Patricia B. Miles appeals her conviction for forgery in the first degree, on the general grounds and on the basis of improper comments by the prosecutor during trial and closing arguments. Held:

1. The subject of the forgery was a money order mailed by John Nickerson to his wife Euricka Nickerson. The evidence showed Mrs. Nickerson was expecting the money order from her husband and did not receive it. On February 3, 1986, one Vickie Cochran called Modern TV and Appliances, where she had an account for a rent-to-own television, and asked the secretary-bookkeeper, Ms. Fangman, if she could cash a check for a friend who had no identification because her wallet had been stolen. Cochran expressed the intent to make a payment on her account with part of the money. Ms. Fangman, who had known Cochran about three years, agreed; later Vickie Cochran and another woman arrived at the store and approached the counter, telling the salesman Martin that Ms. Fangman had agreed to cash this money order. Ms. Fangman, upon being called by Martin, went to the counter, was handed the money order in the amount of $290, and seeing the name Euricka Nickerson endorsed on the back, said to the woman with Vickie Cochran, “You are Euricka Nickerson?” To this the woman said: “Yes, I am.” Ms. Fangman cashed the money order and gave the money to the woman, who then gave Cochran $50 to pay on her account, and the two left.

A few weeks later, Det. Wiggins came to the store inquiring about a forged money order that had been traced to Modern TV & Appliances. Ms. Fangman, upon looking at her records, gave the detective the name and address of Vickie Cochran, and described the woman who had been with her. Ms. Fangman testified she well remembers persons who come into the store; she remembered this woman because she was on eye-level with Ms. Fangman, who is about 5 feet 2 inches tall, and because she was shorter than Cochran. She remembered the woman also by her complexion, mouth structure, and hairstyle. After being given the name and address of Vickie Cochran, the detective spoke again to Mrs. Nickerson and learned that Vickie Cochran’s sister lived in Mrs. Nickerson’s apartment building, directly below Mrs. Nickerson and just a few feet from the apartment’s mailboxes. The detective then compiled a photographic line-up of six persons, including Vickie Cochran and appellant Patricia Miles. He returned to the store and exhibited the photographic line-up to Ms. Fangman, who unhesitatingly picked out Vickie Cochran and appellant Patricia Miles.

Ms. Fangman identified appellant at trial as the woman who had accompanied Vickie Cochran and professed to be Euricka Nickerson, and stated she was and had been 100 percent positive in her identification. At trial, Mrs. Nickerson identified a money order made out to her and endorsed by a signature of Euricka Nickerson which was not her signature. Appellant adamantly denied knowing anything about a forgery and testified she had been with her boyfriend Johnny Farley on the day of the forgery, but had not ever told the detective this because he never asked, although she went to the detective earnestly seeking to clear herself in the six months before trial. Johnny Farley testified, saying appellant could not have done the forgery because she was with him, but he admitted never having told her lawyer this or talked to her lawyer except for two minutes during a recess of this trial.

Vickie Cochran testified Pam Wilson was a friend, that she and Pam had been at Vickie’s sister Patricia Miles’ apartment. Pam Wilson went outside to the mailboxes and returned saying Nickerson had some mail; Pam got a butter knife and pried Nickerson’s mailbox open and extracted three letters, one of which contained the money order. Cochran testified it was Pam’s idea to cash the check, and Cochran called Modern TV & Appliances and arranged to cash it there. Cochran testified that when she and Pam Wilson returned, they divided the money three ways among herself, Pam Wilson, and appellant.

Pam Wilson testified that she had committed the forgery at Vickie Cochran’s behest. She stated she went with Cochran to the store, where a man with black hair and a bald spot on his head waited on them; that a woman did not wait on them or cash the money order, but that she saw a woman with long blond hair in the office. Ms. Fangman, however, testified she had not had long hair in seven years, that Martin’s hair was grey, not black, and he had no bald spot as Pam Wilson had testified. Martin testified; he could not identify the woman who had accompanied Vickie Cochran, but said his hair was grey and he had no bald spot as Pam Wilson testified.

This evidence is such that a reasonable trier of fact could rationally find proof of Patricia Miles’ guilt beyond a reasonable doubt, in the crime of forgery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Boyd v. State, 244 Ga. 130, 132 (259 SE2d 71); Turner v. State, 151 Ga. App. 169, 170 (259 SE2d 171). The verdict is not contrary to the evidence or to the weight of the evidence or to justice. Appellant’s objection on the general grounds is therefore without merit.

2. Appellant contends she was deprived of a fair and impartial trial by repeated improper remarks of the prosecutor. She objected to the prosecutor’s statement that the defense intended to “run in a ringer”; to the statement that lawyers say what they are paid to say; to the query why checks are easily cashed by “crooks” but not for others; that the defense attorneys’ repeated objections to his closing argument were “unethical”; that the defendants were “liars”; and that they had “harassed” the investigating detective. She also objected to the prosecutor’s attempts to intimidate the witness Pam Wilson by threatening to prosecute her for perjury.

Under Hall v. State, 180 Ga. App. 881 (350 SE2d 801), appellant urges she was not required to move for mistrial or repeat objection to an un-cured comment, in order to draw this court’s attention to the infectious nature of such comments on appeal. She is correct, but in Hall, we also said that if the trial court is not requested to take further curative action, this failure to act cannot be addressed on appeal as error, although the original improper statement may be examined for reversible error. It is true that most of the objections raised were not addressed by the trial court, nor was any effort made in most of these instances to mollify their effect. We do not find, however, that the prosecutorial commentary addressed at the defendants was so invidious as to deny appellant a fair trial or render the guilty verdict suspect. The prosecutor’s statement in closing argument that defense counsel’s repeated objections were “unethical,” was, as a bare statement, unquestionably improper; however, it cannot be said on appeal and review of this evidence, that it was so inflammatory as against the appellant as to obscure the truth of any evidence in her favor and call down a verdict of guilt upon her not otherwise proved beyond a reasonable doubt. That is to say, it probably did not affect the verdict. See Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869).

Decided June 17, 1987.

H. Haywood Turner III, for appellant.

William J. Smith, District Attorney, J. Gray Conger, Assistant District Attorney, for appellee.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


author: McMurray, Presiding Judge.

text:
    74009.
    BASS v. THE STATE.
    (358 SE2d 837)
   McMurray, Presiding Judge.

Defendant Larry Lamar Bass was indicted for rape, aggravated sodomy and kidnapping. He was tried on August 4 and 5, 1986, and found guilty on all three charges. On appeal the sole error enumerated is the refusal of the trial court to excuse a challenged juror for cause. Held:

During the voir dire of the jury panel, the assistant district attorney asked the prospective jurors collectively if anyone knew or recognized the defendant. A prospective juror named Terrell responded affirmatively, stating that he had been a witness in another case when Bass was brought into the same court for a preliminary hearing. To the question if he thought that would have any effect on any decision he might make in this case, Terrell replied: “Well, the evidence I heard at the time, I think.it would.” The assistant district attorney then asked Terrell, “and because of what you heard before, you think you’re already somewhat prejudiced?” Terrell answered, “I believe what I heard, yes.”

When defense counsel undertook his voir dire he directed his questions to Terrell, as follows: “Mr. Terrell, I think you said something earlier about the fact that you were a witness — A. In another case when his [Bass’s] case was brought into the city court, and it was bound over. Q. For that reason you feel like you couldn’t be a fair and impartial juror? A. I think what I heard at the time, I formed an opinion, yes. [Defense counsel]: Your honor, I’m going to ask that he be excused for cause. The Court: Well, the test is whether or not you will follow and be controlled by the evidence and the instructions of the court. The Juror: I could be, yes. The Court: You would follow the evidence and be controlled by it? The Juror: Yes. The Court: And follow instructions of the court and apply the law as the court gives you in its charge? The Juror: Yes, sir. [Defense Counsel]: Your honor, I think he said he could be influenced by the court. And I think the terminology by your honor was he would be. From that reason I’d like to ask him a few more questions. The Court: No, sir, I think that is adequate. I think that I’m satisfied he said he would follow the evidence, be guided by the evidence and the instructions of the court. [Defense Counsel]: So you were in court when he [Bass] was in city court? The Juror: On another case, yes. [Defense Counsel]: Okay. And at that time you did form some opinion? The Juror: From what I heard, I did form an opinion, yes.”

After the jury was selected and sworn without reaching Terrell, they were excused from the courtroom and the following colloquy ensued: “[Defense Counsel]: May it please the court, as far as the voir dire is concerned, I have this objection. I would ask your honor to strike the entire jury panel, because your honor left a juror on there that was in attendance at the preliminary hearing on this case of Mr. Bass, heard evidence about the case and I think the question by the court, leading question by the court, as a matter of fact, cannot cure any things he has heard in person. The Court: Now you see, that is the trouble that we get into about the jurors speaking out, not speaking out. Quite candidly I didn’t understand. I thought he was speaking of some other preliminary hearing, not the one in this particular case. [Defense Counsel]: Well, he was present when this case — The Court: I caught that part. [The State]: Well, your honor, in any rate, the latter juror that was empaneled was juror number 41. The man that [defense counsel] is talking about, Mr. Terrell was juror number 46. We didn’t even get to that point. [Defense Counsel]: Your honor, what happened is this. That I had to rearrange my — The Court: Well, this man sat, I couldn’t hear. Tell you the truth that is the reason I got up and walked down there. I don’t often do that, but I went down there so I could see if I could hear what they were saying. But I missed out on one juror, if that is the one I am thinking about, who I understood said that he had been at a preliminary hearing on the rape case. [Defense Counsel]: On Mr. Bass’s case. Heard evidence when Mr. Bass was present. The Court: Is that the one? [Defense Counsel]: Yes, sir. [The State]: Well, your honor, I would contend that the juror, I think the court came down to make sure that the juror said that he could be a fair and impartial juror. The Court: Well, I came down to try and hear what they were saying. [Defense Counsel]: He was already down there. The Court: Because I can’t hear. I really can’t and counsel can’t either, as a matter of fact. [The State]: Well, your honor, as the state indicates, the last juror that was impaneled was juror number 41. And we had a jury of 12. And the other juror that [defense counsel] made reference to was juror number 46, somebody we didn’t even reach anyway. We already had a jury by that time. He did not have to use a strike to remove that juror. . . . The Court: Oh, we didn’t reach that juror. [Defense Counsel]: Well, your honor, I think the reason we didn’t reach it, because we had alternate jurors to consider and I had to rearrange, I had to make sure I saved a strike for that one juror who had already seen part of the trial, and even though we did not reach him, it is possible we could have reached him because the state still had about five or six strikes. I had strikes and I had to use up my strikes saying to myself I have got to save one of these strikes for that man who has already heard part of a trial and has formed an opinion about the case and has told other jurors he has heard part of the case and has formed an opinion, which brings up another matter. The Court: Overrule the motion. . . . [Defense Counsel]: Yes, sir. But I have another motion on the same juror. That motion is that he stated that he had heard part of the trial in which he, Mr. Bass, was at the preliminary hearing. Mr. Terrell was at another hearing in the same courtroom listening and heard part of the evidence and said he had formed an opinion about the case and the other jurors heard that. Here’s a juror that has heard evidence about the case and had already formed an opinion. He informed 48 other jurors in the courtroom or whatever that he had formed an opinion that this man was guilty by hearing part of the case already. The Court: He didn’t say that. If he did, I didn’t hear him. [Defense Counsel]: For that reason I would ask that this panel be stricken. The Court: All right. Overrule. Take a recess. [Defense Counsel]: Another issue, your honor, is along the same lines on the same juror, is that the juror, I think only acquiesced in leading questions by the court and I think that the fact that a juror shall be fair and impartial should come from the juror himself. . . .”

From this necessarily lengthy quotation of the trial transcript, it becomes obvious that Terrell had formed a definite opinion as to defendant’s guilt or innocence; that he was not asked nor did he state whether he could be a fair and impartial juror; that the court’s questions went only to whether Terrell would follow the evidence and instructions of the court; and that the judge could not hear all of Terrell’s responses and was mistaken as to what he actually said. Since defendants rarely put up evidence to rebut a showing of probable cause, it seems inevitable that Terrell would have decided that Bass was guilty from what he heard at the preliminary hearing where the State’s evidence was that a crime had been committed and the defendant had committed the crime. See, e.g., Daniel, Ga. Criminal Trial Practice (1985 ed.), § 11-2. In any event, “a juror who from having heard any of the testimony delivered on oath [in this case at a coroner’s inquest] has formed and expressed any opinion in regard to the guilt or innocence of the [accused] at the bar [cit.], is incompetent and shall be set aside for cause. [OCGA § 15-12-164.]” Douberly v. State, 184 Ga. 573, 576 (7) (192 SE 223) (1937). The examination conducted by the trial court included no inquiry as to whether Terrell’s mind was “perfectly impartial” between the State and the accused as required by OCGA § 15-12-164 (a) (3), even though the judge thought it had occurred and so stated in overruling defendant’s objections. We feel it is clear that this prospective juror should have been excused for cause.

However, since Terrell did not serve on the jury, being venireman number 46 on the panel and not reached before the jury and alternate were selected, the issue here is whether this error requires reversal. The State argues that the question is controlled by King v. State, 177 Ga. App. 788 (1) (341 SE2d 307) (1986), wherein this court held that when a jury is selected prior to reaching the offending juror and the defendant has strikes remaining, the error is harmless. King v. State, supra, was decided on February 12, 1986, but on February 25, 1986, the Supreme Court in Harris v. State, 255 Ga. 464 (339 SE2d 712) (1986) (a non-death penalty murder case) adopted the concurring opinion of Justice Gregory in Blankenship v. State, 247 Ga. 590, 597 (277 SE2d 505) (1981) (a death penalty murder case), which had rejected the harmless error rule when the trial court has refused to strike “an unqualified juror” and the defendant has not utilized all of his peremptory strikes.

Justice Gregory reasoned that under the mechanics of the jury selection procedure, such a complex and highly variable sequence of events may occur that the harmless error rule should not be followed. The court in Harris v. State, supra, agreed, stating that “a true determination of the harm caused by a trial court’s refusal to strike an unqualified juror would require omniscience. The defendant’s use of his peremptory strikes will thus no longer play a role in our evaluation of the harm caused by the refusal to strike an unqualified juror. A defendant is entitled to a panel of forty-two qualified jurors. OCGA § 15-12-160. . . . The defendant’s failure to exhaust his peremptory strikes before the twelfth juror was impaneled does not render the error harmless. This ruling will apply to trials commencing after the date of publication . . .” Harris v. State, 255 Ga. 464, supra at 465.

Decided April 28, 1987

Rehearing denied June 18, 1987

John T. Chason, Drew R. Dubrin, for appellant.

Lewis R. Slaton, District Attorney, Paul L. Howard, Joseph J. Drolet, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.

Defendant’s attorney, in fact, argued to the trial court that his peremptory strike strategy was adversely affected by the failure to disqualify Terrell, and also that Terrell’s statements in regard to his pre-formed opinion of defendant’s guilt had conceivably affected the entire panel of veniremen. In light of the reasoning and ruling in Harris v. State, supra, we are unable to conclude that the trial court’s error in refusing to excuse Terrell for cause was harmless and are bound to reverse the case sub judice in order that a new trial may be conducted before a properly drawn jury.

Judgment reversed.

Sognier and Beasley, JJ., concur.

On Motion for Rehearing.

Relying upon Pope v. State, 256 Ga. 189, 195 (345 SE2d 831), the State again argues that any error regarding Terrell was harmless since he was the 46th venireman. In Pope v. State, supra, the Supreme Court restated the rule that errors regarding a prospective juror “qualified 43rd dr later” are to be deemed harmless. This rule does not conflict with our holding in the case sub judice. Although Terrell was the 46th venireman, he was the 38th qualified juror.

Judgment adhered to.


text:
    74092, 74093.
    WILSON v. COTTON STATES MUTUAL INSURANCE COMPANY; and vice versa.
    (358 SE2d 874)
   Birdsong, Chief Judge.

Ralph Wilson, the appellant/plaintiff below, was injured in an automobile collision on November 10, 1984, when a 1977 Mercury Cougar automobile, driven by Shirley Duckett, crossed the centerline of the highway and struck his vehicle. Wilson filed an action for damages and following a jury trial was awarded $65,000 in damages against Duckett.

Duckett was an insured under a policy of insurance issued by Cotton States to her husband on the Mercury. The policy on the Mercury contained coverage for bodily injury liability in the maximum amount of $25,000. Cotton States intervened in the action against Duckett and paid $25,000 into the registry of the court. Those funds were distributed to Wilson after entry of judgment.

At the time of the collision between Wilson and Duckett, the Duckett family had four separate policies of insurance covering four owned vehicles — a 1977 Mercury Cougar, a 1964 Ford, a 1974 Ford, and a 1985 Ford. Shirley Duckett was an insured under each of the four policies. Each policy contained coverage for bodily injury liability whereby Cotton States agreed “[t]o pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of: A. bodily injury . . . arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile . . . seeking damages which are payable under the terms of this policy. ...” (Emphasis supplied.)

Apparently Wilson made a demand on Cotton States for the unpaid remainder of the judgment, over and above the $25,000 from the policy covering the 1977 Mercury, for his complaint alleges Cotton States “has failed and refused to pay the outstanding balance of forty thousand dollars ($40,000) of Plaintiff’s judgment from the remaining insurance coverage.” Wilson brought this action against Cotton States seeking actual damages of $40,000 and punitive damages in the amount of $50,000. Cotton States moved for and was granted summary judgment, from which Wilson appeals. Held:

Main Appeal No. 74092

1. Appellant contends the trial court erred in holding that the Mercury involved in this collision was excluded from coverage under the remaining three insurance policies. We do not agree. The policy of insurance covering the Mercury obligated the insurer “[t]o pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages . . . which are payable under the terms of this policy. . . .” (Emphasis supplied.)

This was not a “non-owned” vehicle, but was “owned” by the Ducketts. An “owned” vehicle is defined in the policy as “a private passenger . . . automobile which is owned by the named insured, which is described in the declarations attached to this policy. . . .” (Emphasis supplied.) The only vehicle described in the declaration attached to the policy was the 1977 Mercury Cougar. Further, the insurance policy provided that “[t]he limit of liability stated in the declarations as applicable to ‘each person’ is the limit of the company’s liability for all damages claimed by any person. . . .” “ ‘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). Here, the insured and insurer contracted to limit the liability of the company to that provided in the declaration. In like manner, the bodily injury liability was limited to the specific vehicle described in the declarations attached to the other three policies and have no application to the 1977 Mercury. We have found no ambiguity in the terms of these policies relating to the limitation of liability issue. Counsel has not articulated a legal basis for “stacking” the coverage of these separate insurance policies to an automobile specifically excluded therefrom. Neither has counsel cited any legal authority which authorizes such “stacking.” This enumeration is without merit.

2. It is alleged that the trial court erred in placing the burden upon the plaintiff to show that the Mercury was not excluded from coverage under the remaining three insurance policies.

Counsel has failed to follow the Rules of this court. He has enumerated three errors and the third part of his brief, which contains argument and citation of authority, is one continuing, unnumbered argument. See Rule 15 (c) (1), Rules of the Court of Appeals. The argument section contains no argument of this enumeration and no reference to the transcript where such ruling may be found. See Rule 15 (a) (1) and 15 (c) (2). Appellee claims no such ruling was made by the trial court and our review of the record fails to reveal any basis for this claim of error. Although counsel repeats the enumeration, mere repetition of an enumeration does not amount to argument. Summerfield v. Decinque, 143 Ga. App. 351 (1) (238 SE2d 712); Power v. Tallant, 137 Ga. App. 575 (224 SE2d 534). Lacking any articulated legal basis for such claim of error, no citation of authority supporting the asserted error, and no reference to the record where the purported error was made, we have nothing before us for review.

3. Appellant argues that the court erred “in failing to apply OCGA § 33-34-3 (a) (2) which requires mandatory minimum insurance coverage for motorists who are insured under insurance policies. . . .” It is clear that OCGA § 33-34-3 (a) (2) mandates insurers include in their policies “at least the minimum coverage required under Code Section 33-34-4. . . .” And OCGA § 33-34-4 (a) (1) requires “liability insurance equivalent to that required as evidence of security for bodily injury . . . under the motor vehicle safety responsibility laws of this state. ...”

Our Motor Vehicle Financial Safety Responsibility Act requires proof of financial responsibility “in the amount of $15,000.00 because of bodily injury to or death of one person in any one accident. . . .” OCGA § 40-9-2 (5) (A). Our review of the bodily injury liability coverages in these four policies shows that two have coverage of $25,000 per person and $50,000 per accident, and two have $100,000 per person and $300,000 per accident. Hence, these four policies contain more than the “mandatory minimum insurance coverage for motorists” of our Code, and are not subject to the objection made in this enumeration. Division 1 above is dispositive of any claim that “stacking” of this coverage on an automobile not included in the declaration is permissible.

Decided June 5, 1987

Rehearing denied June 18, 1987

Rickie L. Brown, for appellant.

Lemuel H. Kemp, Bruce A. Kling, Cynthia N. Johnson, for ap-pellee.

Cross-Appeal No. 74093

Cotton States answered plaintiff’s complaint and filed a counterclaim asking for attorney fees and expenses of litigation, alleging “there is a complete absence of any justifiable issue of fact or law for the plaintiff’s claim.” The trial court granted summary judgment to plaintiff on defendant’s counterclaim and Cotton States has filed this cross-appeal.

First, we note that the grounds asserted in Cotton States’ counterclaim were for “attorney fees and expenses of litigation.” Cited as authority for this claim was OCGA § 9-15-14. However, on appeal counsel has amended his claim to assert the applicability of Yost v. Torok, 256 Ga. 92 (344 SE2d 414). The Act which promulgated OCGA § 9-15-14, Ga. L. 1986, pp. 1591, 1593, Sec. 3, provided that the section would apply “to actions filed or presented for filing on or after July 1, 1986.” Id. In addition, it was also applicable to “any action pending on July 1, 1986, with respect to any claim, defense, or other position which is first raised in the action on or after July 1, 1986.” Id. (Emphasis supplied.) The instant action was filed prior to July 1, 1986 and the claims presented by plaintiff were not “first raised” after July 1, 1986. Hence, this code section is inapplicable to this action and the trial court did not err in granting summary judgment for plaintiff on Cotton States’ counterclaim.

On appeal, however, cross-appellant has amended its claim to assert the applicability of Yost v. Torok, supra. Yost based its definition of the new tort of “abusive litigation” on the language of OCGA § 9-15-14, which “provides for the award of attorney fees and éxpenses of litigation. . . . The new statute will, of course, govern these two elements of damages.” 256 Ga. at 95. Thus, Yost is not applicable to a claim for attorney fees and expenses of litigation. This enumeration is without merit.

Judgments affirmed.

Deen, P. J., and Pope, J., concur.


author: Pope, Judge.

text:
    74240, 74241.
    E. D. LACEY MILLS, INC. v. KEITH et al.; and vice versa.
    (359 SE2d 148)
   Pope, Judge.

E. D. Lacey Mills, Inc., d/b/a Lacey Rug Mills (“Lacey”), is a manufacturer of bathroom rugs. In July of 1981, Lacey’s president and, at that time, sole owner, commenced negotiations with defendant Shakley for employment with Lacey. Shakley accepted a position as Lacey’s vice-president in charge of sales. During negotiations Shakley convinced Lacey’s president also to hire defendant Keith, who was at that time employed as vice-president in charge of manufacturing by a competing rug manufacturer. Shakley and Keith had previously worked together as a team for the competing manufacturer before Shakley was dismissed. According to the testimony of Shakley and Keith, it was their lifelong goal to own a rug mill. They believed the arrangement with Lacey offered them that opportunity.

All parties agree that the defendants’ employment contracts were oral and terminable at will. For purposes of its motion for summary judgment brought before the trial court, Lacey admits the terms of the agreements were as follows: Shakley was to receive as his compensation a commission of two percent of Lacey’s annual sales with $96,000 as a draw against commissions; Keith was to receive a beginning salary of $50,000 to be raised to $70,000 within one year of his employment or when the company became profitable, if sooner; both Keith and Shakley were to receive five percent of plaintiff’s stock as a gift; both Keith and Shakley were offered an option to purchase an additional nineteen percent of Lacey’s stock for $200,000 and a final eleven percent, the controlling shares, for $100,000, with financing for the sale to be provided by Lacey’s factoring agent; and both Keith and Shakley would be paid three and one-third percent of Lacey’s annual pre-tax profits as an annual performance bonus. Lacey further admits its president, in order to induce Keith to leave his previous position immediately, promised Keith he would receive the balance of any bonus or other sums owed to him by his previous employer if not paid in full because of his leaving prior to the date the bonus was to be paid.

Lacey admits defendants performed well and in the years 1983 and 1984 Lacey showed its greatest net profits in over ten years. In July 1984 Lacey’s president presented both Keith and Shakley with five percent of the stock, as promised in the employment agreement. He also presented them with a written stock option agreement for the sale of the additional shares of stock. While the proposed stock option agreement offered the first nineteen percent of stock at the $200,000 price agreed upon, it did not provide any means for financing the sale. The proposed written agreement outlined a formula for calculating the price of the final eleven percent of stock which greatly exceeded the original agreement to sell that stock for $100,000. When the parties could not agree to the terms of the stock options, Keith and Shakley began exploring other alternatives for fulfilling their goal of owning a rug mill. While still employed by Lacey, both Keith and Shakley made numerous contacts with, among others, the trustee in bankruptcy for the facilities owned by their now defunct previous employer. They retained an attorney to draft articles of incorporation for a new company and paid earnest money to the trustee in bankruptcy for an option to purchase the facilities of the bankrupt mill. When Lacey’s president learned of these activities, Keith was fired and shortly thereafter defendant Shakley resigned. Keith and Shakley immediately went into business in direct competition with Lacey, hiring eighteen of Lacey’s 200 employees and retaining seventeen of Lacey’s twenty-one sales representatives.

In a multi-count complaint, as amended, Lacey sued Keith and Shakley for damages for the lost value of their services for that time spent working for the interest of their new company; breach of their fiduciary duties in contacting Lacey’s employees and sales representatives; tortious interference with contract for inducing employees to leave Lacey’s employ; violation of the Uniform Deceptive Trade Practices Act, OCGA § 10-1-372 (a) (8), for allegedly making disparaging remarks in the course of soliciting employees; and a claim for unfair competition in violation of the Lanham Act, 15 USC § 1126 (h) (1). Keith and Shakley counterclaimed for breach of their respective employment contracts. The trial court granted in part and denied in part both Lacey’s motion for partial summary judgment on the counterclaim and defendants’ motion for summary judgment on Lacey’s complaint. Lacey filed an appeal (no. 74240) and Keith and Shakley filed a cross-appeal (no. 74241), which have been consolidated for consideration.

1. Lacey’s first three enumerations of error take exception to the trial court’s grant of summary judgment to Keith and Shakley (hereinafter “defendants”) as to Count 8 of the amended complaint, which alleges violation of the Lanham Act. We disagree with the trial court’s finding that Lacey’s pleadings have been pierced as to this allegation and therefore reverse the grant of summary judgment as to Count 8.

Judging from the testimony of its president, Lacey claims it can show defendants engaged in unfair competition in violation of the Lanham Act by using confusingly similar labels and style numbering system, taking Lacey’s price list and copying Lacey’s product styles. The mere copying of Lacey’s rug styles would not give rise to a cause of action under the Lanham Act since “there exists a fundamental right to compete through imitation. ...” In re Morton-Norwich Prods., 671 F2d 1332, 1336 (C.C.P.A. 1982). However, a claim for violation of the Lanham Act is stated where a plaintiff alleges its competitor copied its styles, coloring and sales packaging so as to create confusion among potential customers as to the origin of the goods. Federal-Mogul-Bower Bearings v. Azoff, 313 F2d 405 (6th Cir. 1963); Dave Grossman Designs v. Bortin, 347 FSupp. 1150 (IV) (N.D. Ill. 1972). In the Bortin case, the defendant moving for summary judgment submitted into evidence copies of the product and packaging used by each party, yet the court found insufficient evidence to make a ruling on whether the defendant’s trade dress was likely to create confusion or misunderstanding and, therefore, denied the motion for summary judgment. In the case sub judice, defendants based their motion for summary judgment on a simple denial of the plaintiff’s allegations. The record is void of any evidence whatsoever concerning the labels for the rugs in question or the issue of customer confusion; therefore, no finding on this issue could properly be made. Since this is a motion for summary judgment, the burden is upon the movant to refute the plaintiff’s allegations; plaintiff is not required to present evidence to support the allegations but may resist a motion for summary judgment by doing nothing, relying on the failure of the movant to remove all issues of fact from the case. Cf. Benefield v. Malone, 110 Ga. App. 607 (139 SE2d 500) (1964). Defendants presented no evidence which would pierce Lacey’s allegations; therefore, summary judgment as to Count 8 was improper.

2. Lacey maintains the trial court erred in denying its motion for summary judgment on defendant Shakley’s counterclaim for commissions allegedly earned. The parties agree Shakley’s oral employment contract was terminable at will. For purposes of its motion for partial summary judgment, Lacey admits that under the terms of the employment agreement Shakley was to be compensated by a two percent commission. Nevertheless, Lacey argues the compensation agreement is unenforceable as an executory promise. It is true an employee cannot sue to enforce future performance of a terminable-at-will employment agreement. However, 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.” Brazzeal v. Commercial Cas. Ins. Co., 51 Ga. App. 471 (180 SE 853) (1935). The authority relied upon by Lacey is inapplicable to the issue of compensation actually earned by an employee for past performance under the terms of a terminable-at-will agreement. “[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.” Spindel v. Nat. Homes Corp., 110 Ga. App. 12, 15 (137 SE2d 724) (1964). Where an employee has been discharged under a terminable-at-will employment contract, he may bring an action to recover the commissions due him in accordance with the employment agreement. Brazzeal, supra. The trial court properly denied Lacey’s motion for summary judgment on defendant Shakley’s counterclaim for commissions allegedly earned.

3. On the other hand, we agree the trial court erred in denying Lacey’s motion for summary judgment on defendant Keith’s counterclaim to recover the $25,000 year-end bonus which he allegedly earned from his previous employer but lost when he resigned prior to the end of the year. We reject Lacey’s argument that the promise to pay Keith the balance of any sums owed to him by the previous employer was an agreement to pay the debt of another and thereby unenforceable under the terms of the Statute of Frauds. Lacey’s promise was an original undertaking and thereby not subject to the Statute of Frauds since Lacey made the promise for its own economic advantage rather than for the benefit of the original debtor. See Thomason v. Pease Co., 47 Ga. App. 776 (171 SE 467) (1933); Restatement 2nd of Contracts, § 116 (1981). Nevertheless, the promise to pay the bonus forfeited by Keith’s early departure is, in itself, a promise to pay a bonus. While a promise to pay wages of a sum certain is enforceable after performance by the employee, a promise to change the terms of compensation in the future is not enforceable. A promise to pay a bonus or to increase wages in the future is clearly an executory obligation. “It is the general rule that a hiring indefinite as to time is terminable at the will of either party and creates no executory obligations.” Lowe v. Royal Crown Cola Co., 132 Ga. App. 37, 40-41 (207 SE2d 620) (1974). The lower court erred in denying Lacey’s motion for summary judgment in regard to the promise to pay a bonus since a terminable-at-will employment contract creates no executory obligations.

4. Defendants’ Cross-Appeal, No. 74241. Defendants contend the trial court erred by resolving certain disputed factual issues which are for resolution by the jury. Defendants maintain the trial court made findings of fact which transformed the summary judgment adjudication into a bench trial and therefore claim the entire order should be vacated. We find the trial court made no improper findings of fact but merely erred in defendants’ favor in determining no issue of fact existed in regard to Count 8 of Lacey’s complaint, which we reverse in Division 1 of this opinion. We find defendants’ first enumeration of error has no merit.

5. We uphold the trial court’s grant of summary judgment to Lacey on defendants’ counterclaim for unpaid year-end bonuses. For purposes of its motion for summary judgment, Lacey admits it agreed during employment negotiations in 1981 to pay defendants an annual pre-tax performance bonus of a certain percentage of profits beginning in 1982. Lacey admits this promise was made as part of the initial compensation offer to induce defendants to accept employment. Therefore, this promise is distinguishable from an unenforceable promise to change the terms of compensation in the future, as described in Division 3 of this opinion. Normally, “[s]uch a promise, made at the beginning of the employment, is enforceable, though it would not be if made pending the term or after performance was complete.” Phillips & Co. v. Hudson, 9 Ga. App. 779, 781 (72 SE 178) (1911). However, here the promise of a yearly bonus was not to be performed within one year from the date it was made in September in 1981. Therefore, this portion of the employment agreement was within the Statute of Frauds and is unenforceable.

6. We uphold the trial court’s grant of summary judgment to Lacey on defendant Keith’s counterclaim for recovery for a promised salary increase. As discussed in Division 3, a promise to raise wages in the future is merely an executory obligation which is unenforceable as part of a terminable-at-will contract. “Any attempt by the [employee] to base a recovery on oral promises that his pay would be increased in the future must also fail, as the underlying employment contract was terminable at will.” Walker v. Gen. Motors Corp., 152 Ga. App. 526, 527 (263 SE2d 266) (1979).

Defendant Keith contends the promise to increase salary is no longer executory since he performed under the contract and argues an employee may maintain an action to recover damages for breach of an oral contract of employment when the employee has performed the requested services. The cases cited by defendant are distinguishable since they involve enforcement of the original agreement for compensation and not a promise for a future increase in compensation. See Hirsch’s v. Adams, 117 Ga. App. 847 (162 SE2d 243) (1968); Rhine v. Sanders, 100 Ga. App. 68 (110 SE2d 128) (1959). Hans Godo Frabel v. Brennan’s of Atlanta, 151 Ga. App. 379 (259 SE2d 649) (1979), is inapplicable since, in the case sub judice, there was no change in the terms or conditions of the contract, but merely an unenforceable promise of future performance. In a terminable-at-will employment contract the original terms for compensation are enforceable for that work actually performed under the contract. However, a promise of future change in compensation is unenforceable since neither party is bound to continue performance under the contract at all.

For the first time on appeal, defendant Keith claims he is entitled to recover the promised wage increase on the theory of promissory estoppel. We need not address this argument because “such ground for recovery was not set out in [Keith’s counterclaim] and was not made a part of the trial judge’s ruling. ‘This court reviews rulings, and a failure to rule when there was no request therefor will not be reviewed by this court.’ Nash v. Crowe, 222 Ga. 173 (149 SE2d 88) [(1966)].” Lowe, supra at 40.

7. We affirm the grant of summary judgment to Lacey on defendants’ counterclaim for breach of the stock purchase agreement. Lacey admits it orally promised to sell the defendants stock at a given price “once plaintiff became profitable.” Defendant Keith testified it was his understanding the stock option could be exercised “if we could turn the company around” so the company’s creditor had a “performing loan.” It was his understanding the option could be exercised “after .. . we [paid] down the [creditor’s] debts.” We find these terms create a condition precedent which is so vague and indefinite the contract is unenforceable. In Dale’s Shoe Store v. Dale, 104 Ga. App. 371 (121 SE2d 695) (1961), this court found a corporation’s promise to pay its employee for services rendered “when the store got on its feet and got to making a profit” was too vague and uncertain to be enforceable. “In the absence of any evidence on the question of what the condition means or what the intention of the parties was we can see no basis upon which to place a reasonable, commonsense conclusion . . . . The indefinite and uncertain condition nullified the whole contract. . . .” Id. at 372. The record before us shows at the time defendants came to work for Lacey, and throughout the tenure of their employment, plaintiff Lacey remained highly leveraged to its creditor. While defendants were employed by Lacey, Lacey borrowed additional funds to expand its operations. As a result, even though Lacey made record profits in 1983 and 1984 and performed under its loan obligations, its long-term debt was reduced only marginally. Moreover, during the first half of 1985, while defendants were still employed by Lacey, Lacey’s gross profits declined sufficiently to prompt the creditor to request an explanation from Lacey for the decline in profitability. Therefore, even though Lacey came to show a profit, it is questionable and uncertain whether it was “profitable” as anticipated in the parties’ agreement for the sale of stock. We find the stock purchase agreement is unenforceable because of the uncertainty of its terms.

8. We affirm the grant of summary judgment to Lacey on defendant Keith’s counterclaim for breach of Lacey’s agreement to pay the balance of stock option funds allegedly owed him by his previous employer for reasons set forth in Division 3.

9. We affirm the trial court’s denial of defendants’ motion for summary judgment on Counts 1 and 2 of Lacey’s complaint, alleging breach of fiduciary duty. We agree an employee breaches no fiduciary duty to the employer simply by making plans to enter a competing business while he is still employed. “Even before the termination of his agency, he is entitled to make arrangements to compete. . . . Thus, before the end of his employment, he can properly purchase a rival business and upon termination of employment immediately compete.” Restatement 2nd of Agency, § 393 (1958). Nevertheless, the record contains sufficient evidence to raise a jury question as to whether defendants fulfilled their duties to Lacey as full-time paid employees during the months they made plans for their new company. Defendants admittedly conducted numerous meetings and telephone calls in pursuit of their plans. Testimony from one of Lacey’s secretaries established defendant Keith was frequently absent from the office from January 1985 through the date of his departure. The record also shows the defendants broached the subject of their plans to go into business in competition with Lacey to certain of Lacey’s sales representatives in the months prior to their departure. Even though an employee may make plans to compete with his employer while still employed, “[h]e is not, however, entitled to solicit customers for [a] rival business before the end of his employment nor can he properly do other similar acts in direct competition with the employer’s business.” Restatement 2nd of Agency. Id. The record contains sufficient evidence to create a question for the jury as to whether defendants breached their fiduciary duties to Lacey.

10. We affirm the trial court’s denial of defendants’ motion for summary judgment on Count 4 of Lacey’s complaint, alleging tortious interference with Lacey’s contracts with its employees and sales representatives. Defendants are correct in arguing the law grants a former employee a privilege to compete with his former employer for customers and employees. An individual is not liable for interference with contractual relations for the hiring away of a competitor’s terminable-at-will employee if “(a) the relation concerns a matter involved in the competition between the actor and the other and (b) the actor does not employ wrongful means and (c) his action does not create or continue an unlawful restraint of trade and (d) his purpose is at least in part to advance his interest in competing with the other.” Restatement (2nd) of Torts § 768 (1965). On the other hand, “[t]he fact that an employment is at the will of the employer and employee does not make it one at the will of others, and a malicious and wrongful interference with such employment by another is actionable although the employment be at will.” Ott v. Gandy, 66 Ga. App. 684 (1) (19 SE2d 180) (1942). We find an issue of fact remains for the jury as to whether defendants employed wrongful means to solicit Lacey’s employees and sales representatives.

The record shows the defendants hired 17 of Lacey’s 21 sales representatives and 18 of Lacey’s employees. While these employees were not executives, they were supervisors and hourly wage earners in the dye operation, a particularly crucial step in Lacey’s manufacturing process. Immediately after leaving Lacey and forming their own company, defendants issued a telegram announcing the formation of a new company. The telegram was sent to all Lacey’s sales representatives but was not sent to any other sales representatives affiliated with other competitors. Defendant Shakley admits he told certain sales representatives he believed a sufficient amount of Lacey’s business would be lost to the new company and as a result Lacey might find it difficult to repay its loans. Shakley also admits quoting to at least one sales representative a statement contained on Lacey’s confidential financial statement that if Lacey’s creditor were to call its loans, Lacey would not survive. The record supports Lacey’s allegation it suffered a competitive disadvantage in losing its sales representatives and its employees. Whether these facts show defendants acted wrongfully or “maliciously” so as to entitle plaintiff to an award for tortious interference is a question for the jury. See Nager v. Lad’n Dad Slacks, 148 Ga. App. 401 (3) (251 SE2d 330) (1978); Architectural Mfg. Co. v. Airotec, Inc., 119 Ga. App. 245 (166 SE2d 744) (1969). “[WJhile even the destruction of a competing business by means of attracting its customers in the fair course of trade is not actionable, destruction or substantial injury by means of attracting away all or a large percentage of personnel upon whom it must depend to function, especially if other circumstances such as the use of confidential information or misrepresentations as to the plaintiff’s financial solvency are involved, is compensable, with lack of actual malice going merely to mitigation of damages.” Id. at 251.

Decided June 4, 1987

Rehearing denied June 18, 1987.

Charles T. Lester, Jr., R. Michael Robinson, T. Joseph Campbell, L. Hugh Kemp, for appellant.

Bruce C. Smith, Joseph R. Manning, Sam F. Little, for appel-lees.

Judgment affirmed in part and reversed in part.

Birdsong, C. J., and Deen, P. J., concur.


text:
    73730.
    PARTEN v. SWAN.
    (358 SE2d 906)
   Benham, Judge.

This is an appeal from the grant of summary judgment to appel-lee in appellant’s legal malpractice action. Appellant retained appellee to represent him in a suit initiated by a petition for a writ of possession of a piece of farm equipment which was collateral for a note. Appellee filed a timely answer and entered into settlement negotiations. When those negotiations broke down, appellant was deposed by the plaintiff in that action. Appellant testified during the deposition that he owed the plaintiff $40,601.08. The plaintiff subsequently amended its suit to seek a money judgment in the amount of the indebtedness admitted by appellant, and then filed a motion for summary judgment. Appellee did not respond to the motion, and judgment was entered against appellant in the amount he had admitted owing. Appellant subsequently sued appellee for legal malpractice. In support of a motion for summary judgment in that malpractice action, appellee averred in an affidavit that appellant had had no defenses to the suit, that he had told appellant that there were no defenses unless appellant could provide some factual basis for raising a defense, and that he did not oppose the motion for summary judgment because there was no defense which he could raise in good faith. Appellant filed several affidavits in opposition to appellee’s motion for summary judgment, only one of which affidavits was sufficiently detailed to meet the requirement of setting out the parameters of acceptable professional conduct, a significant deviation from which would constitute malpractice. See Beauchamp v. Wallace, 180 Ga. App. 554 (349 SE2d 791) (1986). Our review of that detailed affidavit reveals only one issue of arguable merit raised thereby. The other issues raised either concerned the repossession and sale of the farm equipment involved, events which occurred some months after the alleged malpractice, or suggested the possibility of unspecified or legally insupportable defenses. The issue of arguable merit concerns the amount of appellant’s liability to the plaintiff in the first suit. It is apparent from the record that the amount of appellant’s actual indebtedness was less than that to which he admitted on deposition. However, the record before the trial court included an affidavit from the plaintiff’s attorney in which he averred that the plaintiff credited appellant with the proceeds of the sale of the equipment and subtracted those proceeds from an indebtedness of $34,198.44, the amount for which appellant was actually liable to the plaintiff. It thus appears that if appellee was negligent in failing to raise the discrepancy between the amount appellant admitted owing and the amount he actually owed, it has resulted in no harm to appellant because the creditor has recognized in a solemn admission in judicio that the amount of the judgment now claimed by the creditor is based on the amount of appellant’s actual indebtedness, not the amount appellant mistakenly admitted was owing.

Since one of the necessary elements in a suit for legal malpractice is proof that the attorney’s negligence proximately caused the client’s damages, and appellee has negated that element, the grant of summary judgment was correct. Rogers v. Norvell, 174 Ga. App. 453 (2) (330 SE2d 392) (1985).

Decided June 18, 1987.

J. Laddie Boatright, for appellant.

Ronald E. Parten, pro se.

John S. Sims, Jr., Daniel Reinhardt, Douglas D. Salyers, for ap-pellee.

Judgment affirmed.

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


text:
    73963.
    73964.
    LEAVELL v. BENTLEY. LEAVELL v. DYER.
    (358 SE2d 907)
   Benham, Judge.

Appellant was injured in a collision between two vehicles. She was a passenger in a truck driven by Dyer which was hit from behind by a vehicle driven by Bentley. She sued them both. At trial appellant’s evidence with regard to liability consisted of her own testimony and that of Dyer and Bentley on cross-examination. Appellant testified that Dyer was taking her home from a party sometime between 2:00 and 3:00 a.m. on the date of her injury when his truck stalled; that he pulled the truck completely off the roadway and, after attempting to restart the truck, went for help; that the road was wet from rain which had fallen earlier; that there was enough fog to require use of windshield wipers to remove condensation; that Dyer returned with a friend who parked his truck facing Dyer’s, then used booster cables and the friend’s truck to start the stalled truck; that Dyer immediately turned on his headlights and emergency flasher, then got out of the truck; and that the lights had been on for 10 seconds when Bentley ran off the road and collided with the truck in which she was sitting. Dyer testified to essentially the same facts, including the location of his truck completely off the roadway, the fact that his lights were on prior to the collision, and the fact that Bentley left the roadway prior to the collision. Bentley testified that the fog was so heavy that his visibility was limited to 30-40 feet; that he was driving at 45 m.p.h.; and that when he first saw Dyer’s truck, it was about three or four car lengths away.

After putting up that evidence on the issue of liability, appellant introduced evidence concerning damages, then rested. Both defendants moved for a directed verdict. The trial court granted Dyer’s motion, ruling that there was no evidence of negligence, but denied Bentley’s.

The evidence offered by Bentley in defense was his own testimony and that of the police officer who investigated the collision. Bentley testified that he had been blinded by the lights of an oncoming car and that when it had passed, he saw Dyer’s truck sitting in the roadway without any lights; that he did not have time to stop, but tried to avoid the collision by swerving to his left; that the right front of his vehicle struck Dyer’s truck; that he did not leave the roadway; and that he had consumed four beers between 8:00 p.m. and midnight. The police officer, who was permitted to testify as an expert, testified that Dyer’s truck was in the roadway when struck; that Bentley’s vehicle struck the left rear of Dyer’s truck; and that Bentley’s speed of 45 m.p.h. was a reasonable speed for the road and weather conditions and did not contribute to causing the collision. Following Bentley’s presentation of evidence, he moved once again for a directed verdict, successfully that time.

The appeal in Case No. 73963 is from the judgment in favor of Bentley, while Case No. 73964 is an appeal from the judgment in favor of Dyer.

1. “OCGA § 9-11-50 (a) . . . provides in pertinent part that ‘(i)f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.’ In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict. [Cit.] The standard used to review the grant or denial of a directed verdict is the ‘any evidence’ test. [Cit.]” Skelton v. Skelton, 251 Ga. 631 (4) (308 SE2d 838) (1983).

Applying that standard to the direction of a verdict for Dyer, we find no error in the trial court’s ruling. As the trial judge noted, there was simply no evidence of negligence on Dyer’s part at the time he was granted a directed verdict. Appellant and Dyer had both testified that Dyer’s truck was parked off the roadway and that his emergency flashers were operating prior to thé collision. Although appellant asserts 5 enumerated errors in Case No. 73963, they all concern the direction of a verdict for Dyer; they just assert different reasons why the direction was error. However, none of the asserted errors has merit in light of the complete lack of evidence showing negligence on Dyer’s part.

2. In the course of argument on Bentley’s motion for directed verdict, the issues resolved themselves to two questions: Was there any evidence that Bentley’s speed was unreasonable for the conditions prevailing; and was there any evidence that Bentley’s vehicle left the road before striking Dyer’s truck. As to the first question, the trial court took the position that the police officer’s opinion that Bentley’s speed was reasonable destroyed any inference of negligence with regard to speed and placed on appellant the burden of producing positive evidence that Bentley’s speed was unreasonable. We find that position untenable. “[T]he court cannot direct a verdict where there is any reasonable inference supported by evidence which would authorize a verdict to the contrary. [Cit.]” Findley v. McDaniel, 158 Ga. App. 445, 447 (1) (280 SE2d 858) (1981). Whether a given speed was reasonable under the particular circumstances of a case is normally a question for a jury. See Ellison v. Robinson, 96 Ga. App. 882 (2) (101 SE2d 902) (1958). “There is no requirement that expert testimony must be produced by a plaintiff to a negligence action in order to prevail at trial. The weight given to expert testimony in such cases is for the trier of fact who is not required to give it controlling influence.” Self v. Exec. Committee of Ga. Baptist &c., 245 Ga. 548, 549 (266 SE2d 168) (1980). Since the police officer’s testimony was not controlling and the question of whether Bentley’s speed was reasonable was one for the jury, the trial court’s grant of a directed verdict on that ground is not sustainable.

Decided June 18, 1987.

Daniel T. Donohue, Craig D. Miller, for appellant.

Barry S. Mittenthal, Russell Waldon, for appellees.

The trial court’s decision on the second issue appears to be the result of a failure on the part of the trial court to recall the evidence accurately. He ruled that there was no evidence which was in conflict with Bentley’s testimony on direct examination that he never left the road. As noted above, both appellant and Dyer testified that Dyer’s truck was completely off the roadway and that Bentley’s vehicle left the road before striking Dyer’s truck. That evidence was sufficient to raise an inference that Bentley was negligent and that his negligence caused the collision. It was, therefore, error to direct a verdict for Bentley on that ground as well. Findley v. McDaniel, supra. It follows that the judgment in favor of Bentley must be reversed.

Judgment affirmed in Case No. 73964. Judgment reversed in Case No. 73963.

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