text:
    A01A2331.
    WASHINGTON v. THE STATE.
    (560 SE2d 80)
   Smith, Presiding Judge.

Kevin Derrick Washington was convicted by a jury of possession of a controlled substance with intent to distribute and was sentenced as a recidivist. His motion for new trial was denied. Washington appeals, raising issues concerning sufficiency of the evidence, admission into evidence of similar transactions and the trial court’s accompanying instructions, effectiveness of counsel, and other evidentiary matters. We find no reversible error with respect to these contentions, and we affirm.

When construed in favor of the verdict, the evidence presented at trial shows that while on patrol at approximately 4:30 a.m. on November 26, 1997, Officer Robert Gavin of the Savannah Police Department observed two vehicles parked on either side of the street. Neither car was running, and the cars’ lights were not on. He observed a woman, later identified as Debra Smith, walking back and forth between them, and he saw her get into the rear of the car in which Washington was a front seat passenger. Smith stayed inside the vehicle “for a little bit of time” and then exited it while carrying two bottles of beer, at least one of which was open. Gavin approached her in his car at that time. According to Gavin, he asked her “what was going on tonight,” and she told him that she was getting a ride with her brother, the driver of the car in which Washington was a passenger. Gavin referred to this driver as “John Doe” because he was unable to determine his true identity. But both Washington and John Doe told Gavin that they were not related to Smith and that they “knew her from being around.”

Backup law enforcement arrived, and another officer patted Smith down and discovered a knife and a rock of crack cocaine inside her sock, as well as two crack pipes on her person. Meanwhile, Gavin obtained John Doe’s driver’s license. He observed that John Doe did not fit the descriptive information or the photograph on the license. On questioning by Gavin, John Doe could not remember the information contained on the license. Officers “tried for several minutes” to learn his identity, and he gave them “several different names.” He was arrested for giving false information and obstruction.

Before Gavin “went through the process with Mr. Doe, asking him who he was,” he walked to the passenger side of the vehicle. Although he wanted Washington to roll down his window, Washington opened the door and began to step out. As Washington did so, Gavin looked down and checked “the whole area around the feet, around his hands.” He saw nothing on the seat near Washington or along the door, the dooijamb, or along the well “where your feet would be.” Gavin told him to stay inside the vehicle, and Washington complied.

Gavin then became involved with John Doe’s arrest. After John Doe was placed in custody, Gavin returned to the passenger side of the vehicle. As he was walking toward the vehicle, he saw Washington “moving around inside the car,” and Washington seemed to be “digging his hands” into his pockets. “He was doing a lot of moving inside the car when he was in there by himself.” Gavin testified that he could see Washington’s arms and elbows “moving out, his jacket moving, his hands going. . . . [H]is hands were moving inside of his jacket, because his jacket was also moving. . . . He was looking down. He was moving his hands around.” He also stated that Washington’s hands were “down in front of him.” Gavin became “a little worried about what he was digging for or what he was looking for” and asked Washington to exit the car and place his hands on top.

As soon as Washington opened the door, Gavin saw a plastic baggie on the center of the doorjamb that was not there the first time he spoke with Washington, when Washington attempted to step out of the car. The baggie contained approximately ten rocks of a substance that appeared to be crack cocaine. Gavin testified that from his experience, the number of rocks seized showed that the substance, identified as cocaine at trial by a forensic chemist, was intended for distribution rather than personal use.

Smith was arrested and pled guilty to possession of a controlled substance and carrying a concealed weapon. She testified against Washington, stating that she purchased a “dime” or $10 rock of crack cocaine from him. Smith unequivocally identified Washington as the seller, stating that he was the person from whom she usually bought her drugs and that she usually located him in the area of the arrest. Washington denied possession of the cocaine, testifying that the driver of the car, whom he identified only as “Terry,” was inside the car when Gavin first talked with Washington. According to Washington, as Gavin walked from the passenger side of the car toward the driver’s side, “Terry” threw something, which hit his window and fell to the floor.

1. Washington argues that the circumstantial evidence in this case was not sufficient to convict him, contending that Gavin did not testify that he found any money on his person. But lack of evidence presented concerning money that may or may not have been discovered does not refute Smith’s testimony that she purchased cocaine from Washington. This was direct evidence of Washington’s guilt. See generally Moody v. State, 232 Ga. App. 499, 502 (1) (502 SE2d 323) (1998) (direct evidence of defendant’s guilt through co-defendant’s testimony that she saw defendant throw cocaine on floor). And this evidence was corroborated by Gavin’s testimony concerning Washington’s behavior and his discovery of the cocaine only inches away from Washington. Washington also states that he was not the owner of the vehicle in which the cocaine was found. Pointing out that the owner of a vehicle is presumed to have contraband inside the vehicle under his or her control, see Fears v. State, 169 Ga. App. 172, 173 (312 SE2d 174) (1983), and arguing that Smith and the driver had equal access to the contraband, Washington maintains that the State proved only his mere presence at the crime scene.

We first note that Washington’s reliance on the equal access doctrine is misplaced. We cannot determine who owned the vehicle from the transcript; the record does not show whether the driver, Smith, or Washington owned the vehicle or had exclusive control over it. It follows that we cannot determine the party to whom the presumption discussed in Fears, supra, applies.

The equal access rule, entitling a defendant to acquittal where evidence is presented that others had equal access to a vehicle or that the vehicle had recently been used by others, applies only where the sole evidence of possession of contraband found in the vehicle is the defendant’s ownership or possession of the vehicle. It is simply a defense available to the accused to whom a presumption of possession flows. Because . . . the State did not show the indicia giving rise to the presumption, that is, ownership or exclusive control of the vehicle, no presumption arose and therefore there was no triggering of the equal access defense.

(Citations and punctuation omitted; emphasis supplied.) Jackson v. State, 216 Ga. App. 842, 844-845 (2) (456 SE2d 229) (1995) (full concurrence as to Division 2).

But even if the equal access rule might be applicable in this case, under this doctrine “merely finding contraband in a car occupied by defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime.” (Citations and punctuation omitted.) Fears, supra at 173 (1). Conversely, if “additional evidence” exists of possession of contraband by the defendant, whether circumstantial or direct, other than mere use of or presence inside the vehicle, the jury must determine guilt or innocence. Id. at 174 (1). Here, as in Fears, the testimony of Gavin and Smith established more than Washington’s mere presence in the vicinity of the cocaine. The evidence amply supported the jury’s verdict.

2. Washington contends that the trial court erroneously denied his motion for mistrial made after the State violated the court’s ruling on a motion in limine excluding alleged statements made by John Doe. We conclude that Washington waived appellate review of the denial of his motion.

Before trial, the State indicated that it would not use this evidence in its case-in-chief but that it would seek its admission if Washington tried to place blame on John Doe. The trial court ruled this evidence inadmissible in the State’s case-in-chief but stated that the issue would be revisited in the event it arose later in the trial. As discussed above, Washington denied possession of the cocaine and implied that it belonged to John Doe. The State then asked Washington whether it was true that John Doe had told the police that Washington had said he “needed to get rid of [his] s — ,” and the trial court sustained the objection immediately made by Washington. Washington moved for a mistrial, which the trial court overruled. The court did, however, instruct the jury to disregard “what Mr. Doe is alleged to have said. It has no probative value, at all. He is not here, and the alleged statement, if any, has no value at all in your consideration of the case.” Cross-examination proceeded, and Washington did not renew his motion for mistrial or request further curative action. It was incumbent on him to do so to preserve the denial of his motion for appellate review. See, e.g., Anderson v. State, 236 Ga. App. 679, 684-685 (7) (513 SE2d 235) (1999).

3. Washington alleges error concerning the admission of three similar transactions and the accompanying instructions given to the jury.

(a) Washington contends that the trial court did not appropriately limit the purpose for which the similar transactions should be considered, in violation of Stephan v. State, 205 Ga. App. 241 (422 SE2d 25) (1992). That case prohibits the mere “articulation” by the trial court of “a comprehensive list of possible purposes” for the use of similar transaction evidence, and it requires the trial court to instruct the jury to limit its consideration to the one purpose for which the evidence is admissible. Id. at 243-244 (2). We find no violation of Stephan here. Before each similar transaction was admitted into evidence, the trial court extensively instructed the jury on the law concerning similar transactions, stating among other things that such evidence can be considered only for the sole purpose to which the evidence is limited. With respect to the first similar transaction admitted, the court then instructed the jury as follows:

The law provides that evidence of other transactions or offenses, or whatever they may be, of this defendant, that are similar in terms of common design, scheme, plan, course of conduct, motive, location of time and place, and other factors which are connected to the offense for which the defendant is on trial may be admissible and considered for the limited purpose of showing, if it does so show, the state of mind, that is, the knowledge or intent of the defendant in the crime or crimes charged in the case now on trial. Such evidence, if any, may not be considered by you for any other purpose.

The trial court’s limiting instructions with respect to the other two similar transactions were virtually identical to this instruction. These instructions clearly limited the purposes for which the evidence was to be considered and did not “result in a laundry list’ of permissible purposes for the consideration” of similar transaction evidence prohibited in Stephan, supra. Todd v. State, 230 Ga. App. 849, 852 (2) (c) (498 SE2d 142) (1998), overruled on other grounds, Johnson v. State, 272 Ga. 468, 469 (1) (a), n. 2 (532 SE2d 377) (2000).

(b) Washington argues that evidence of the three previous transactions was erroneously admitted. The first involved an arrest that occurred five days before he was arrested for the offenses charged in this case. On the earlier date, the night of November 21, 1997, within a few blocks of the location of the incident involved here, Officer Clarence New of the Savannah Police Department saw Washington and another man standing in the doorway of an abandoned, run-down building. The two men were standing close together, with the other man pointing into Washington’s open palm. Thinking this to be a drug transaction, Officer New approached the men, who did not notice him until his vehicle was approximately a car length away. Washington then saw New and said, “ ‘Oh, s — ,’ ” and threw a small baggie onto the ground. Inside the baggie were three rocks of crack cocaine.

Washington argues that this transaction did not satisfy Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). The State showed that Washington was the perpetrator of the earlier crime, and as discussed above, the trial court instructed the jury that the offense was admissible for the limited purpose of showing intent. Finally, the crimes were “strikingly similar,” Roundtree v. State, 222 Ga. App. 363 (2) (474 SE2d 224) (1996), as the earlier crime was committed at night within days and in the same vicinity of the incident for which Washington was on trial. We also note that during his trial testimony, Washington accused both Few, the eyewitness in the previous case, and Smith, a witness in this case, of lying. The affirmative showings required by Williams, supra, were clearly met, and the trial court did not err in admitting this evidence.

The second transaction occurred on December 28, 1994, approximately three years before the events of this case. Washington was stopped for a traffic violation and arrested because he did not have a driver’s license. During a search incident to the arrest, a small plastic bag containing suspected marijuana was found inside the vehicle. Inside this bag were smaller, “dime-size bags of a leafy substance.” Washington pled guilty to possession with intent to distribute but testified at trial in this case that the contraband belonged to the passenger in the car with him. We find no error with regard to the admission of this evidence. There is no requirement that similar transactions be identical. See, e.g., Milton v. State, 232 Ga. App. 672, 674 (2) (a) (503 SE2d 566) (1998). The fact that the independent offense occurred three years before the crime in this case is not determinative of admissibility, especially given the fact that Washington was incarcerated for a portion of that time period. See Goodroe v. State, 238 Ga. App. 66, 68 (2) (a) (518 SE2d 139) (1999). Here, the previous crime was admissible for the limited purpose of showing Washington’s intent to sell illegal drugs, and again, the trial court properly instructed the jury concerning the limited purpose for which the evidence was to be considered. See Willis v. State, 199 Ga. App. 658, 659 (1) (405 SE2d 739) (1991).

The third similar transaction occurred in July 1993, in the late afternoon, when a police officer watched Washington and another man converse on the street and then walk to a nearby porch, where they sat down together. Washington reached into his pocket and removed a large plastic bag containing a green, leafy substance. The officer saw Washington take a portion of the substance out of the bag and give it to the other man. Washington was arrested and charged with possession of marijuana with intent to distribute. A pager and $44 were found on his person. He was convicted of possession of a controlled substance. He testified during the trial of this case that he was not selling marijuana but was simply giving marijuana to a friend. Washington argues that the controlled substances involved in the earlier case and in this case were “totally different” and that the times of day during which the incidents occurred “vary significantly.”

Some question does exist as to the admissibility of the 1993 incident, as it is not abundantly clear that the contraband in that case was intended for distribution. The State presented no evidence of drug paraphernalia or large amounts of cash, nor did the State show that the packaging of the contraband was consistent with the intent to distribute. See generally Parris v. State, 226 Ga. App. 854, 856 (487 SE2d 690) (1997). But even assuming, without deciding, that this transaction was improperly admitted, we conclude that any error was harmless. We “must assess harm as well as error when similar transaction evidence has been improperly admitted. [Cits.] The error is harmless when it is highly probable the error did not contribute to the judgment. [Cits.]” Dumas v. State, 239 Ga. App. 210, 216 (3) (521 SE2d 108) (1999). Given the direct testimony of Gavin and Smith, as well as the properly admitted remaining similar transactions, we conclude that a high probability exists that admission of the 1993 transaction did not contribute to the jury’s verdict.

4. Washington contends he was denied effective assistance of counsel. To prevail on this claim, he must show that trial counsel’s performance was deficient and that, but for this deficiency, a reasonable probability exists that the outcome of his trial would have been different. Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984). Washington has not met this burden.

(a) We find no merit in Washington’s contention that trial counsel rendered ineffective assistance by not moving for a directed verdict of acquittal. Such a motion would have been fruitless, given the facts of this case. As discussed above, ample evidence supported the verdict against Washington. During the hearing on Washington’s motion for new trial, Washington’s trial counsel acknowledged as much by testifying that moving for a directed verdict was “a futile move,” that the evidence against Washington was “extremely strong,” and that he did not feel he needed to make “a perfunctory motion that would have no basis whatsoever.”

(b) Washington also argues that trial counsel was ineffective in failing to object to the State’s introduction of a certified copy of his forgery conviction, which was not a similar transaction. But evidence concerning this previous conviction was first introduced by Washington himself on direct examination during his explanation of the incident involved here. He testified that Gavin tapped on his window and asked what he was “on parole for,” and he answered, “[florgery.” On cross-examination, the prosecutor followed up on this testimony, asking Washington about his comment that he was on parole for forgery. Washington answered that he was on parole for “forgery, as well as possession and intent to distribute.” He injected the issue of his previous conviction into evidence, and the State was authorized to further explore this area. Jordan v. State, 267 Ga. 442, 447 (4) (480 SE2d 18) (1997).

(c) Washington maintains that he received ineffective assistance because his trial counsel failed to ascertain the “true identity” of one of its key witnesses, Smith. But trial counsel testified that he investigated Washington’s claims concerning Smith’s identity and “everything that [he] checked turned out empty.” The trial court was authorized to believe this testimony, as witness credibility was a matter within its discretion. Randolph v. State, 225 Ga. App. 324 (484 SE2d 1) (1997). And Smith’s credibility was attacked by trial counsel on the issue of her false statement concerning her “brother.” She admitted that she had been lying and “was trying to get out of what I was actually doing.” She also admitted on cross-examination that she had been accused of lying to the police on another occasion and had been charged with obstruction for giving false information. In addition, she acknowledged on cross-examination that she sometimes went by the name of “Red,” although she stated that she had never used an alias. Trial counsel clearly and fully attacked Smith’s credibility, and to the extent that Washington argues that other evidence shows Smith to have operated under a false identity, we will not consider unsupported factual assertions made in appellate briefs, and briefs cannot be used in lieu of the transcript to add evidence to the record. Harris v. State, 230 Ga. App. 403, 405 (2) (496 SE2d 277) (1998). This contention has no merit.

(d) Finally, Washington argues that trial counsel was ineffective for failure to request an “equal access” charge. But as discussed above, the evidence did not raise this doctrine as a defense, and trial counsel observed this fact during the hearing on the motion for new trial. Trial counsel therefore could not have been ineffective for failure to request a charge on equal access.

Judgment affirmed.

Barnes and Phipps, JJ, concur.

Decided February 7, 2002.

Diane M. McLeod, for appellant.

Spencer Lawton, Jr., District Attorney, Patricia P. Stone, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: Barnes, Judge.

license: Public Domain

text:
    A01A2430.
    SAWYER v. SAWYER et al.
    (560 SE2d 86)
   Barnes, Judge.

Stanley J. Sawyer appeals the judgment of the trial court dismissing his complaint against Aubrey A. Sawyer and Marvin Dukes for lack of personal service and awarding attorney fees pursuant to OCGA § 9-15-14. He contends the trial court erred by granting the appellees’ motion to dismiss his complaint and by denying his motion for summary judgment. Although we affirm the trial court’s dismissal of the complaint, we must vacate the award of attorney fees because no hearing was conducted on the amount of such fees.

1. Appellant’s motion to file an amended brief is granted, and appellee Dukes’ motion to dismiss the appeal because appellant’s brief did not comply with the rules of this Court is denied.

2. Because appellant acknowledged at the hearing on the appellees’ motion to dismiss that he had not perfected personal service on either appellee and because appellee Dukes filed an answer reserving this defense, the trial court did not err in dismissing appellant’s complaint against both appellees. See Hudson v. Williams, 188 Ga. App. 726, 727 (374 SE2d 220) (1988).

3. As we have affirmed the trial court’s dismissal of the appellant’s complaint because he failed to serve the appellees with process, any issue concerning the denial of appellant’s motion for summary judgment is moot.

4. Appellant further contends the trial court erred by granting appellee Sawyer’s motion for attorney fees under OCGA § 9-15-14 without conducting a hearing. Although we find no abuse of discretion in the award of attorney fees, because appellant persisted in pursuing this action while knowing that he had not obtained personal service on the appellees (see Haggard v. Bd. of Regents &c. of Ga., 257 Ga. 524, 527 (4) (c) (360 SE2d 566) (1987)), we agree with appellant that a hearing was required under OCGA § 9-15-14 on the amount of the award.

Although there is no error in the court’s imposing an award for attorney fees, a party opposing a claim for attorney fees has a basic right to confront and challenge testimony as to the value and need for legal services. [Cits.] The record does not show [Sawyer] was afforded such an opportunity, and the judgment must be reversed and remanded for an evidentiary hearing to determine an amount for reasonable and necessary attorney fees. [Cit.] See also Oden v. Legacy Ford-Mercury, 222 Ga. App. 666, 669-670 (3) (476 SE2d 43) (1996) (hearing required and “(a)t such hearing, each attorney for whose service compensation is sought must provide admissible evidence of fees in the form of personal testimony, or through the testimony of the custodian of the applicable billing records, as an exception to the hearsay exclusion. See OCGA § 24-3-1”).

Decided February 8, 2002.

Stanley J. Sawyer, pro se.

Blackburn, Walther & Sloan, Samuel P. Westmoreland, Barry L. Katz, for appellees.

(Punctuation omitted.) C. A. Gaslowitz & Assoc. v. ZML Promenade, 230 Ga. App. 405, 406 (496 SE2d 470) (1998).

Accordingly, the dismissal of appellant’s complaint is affirmed, but the award of attorney fees is vacated, and the case is remanded for further proceedings regarding the award under OCGA § 9-15-14.

Judgment affirmed in part, vacated in part and remanded with direction.

Smith, P. J., and Phipps, J., concur.


author: Eldridge, Judge. Andrews, Presiding Judge,

text:
    A01A1984.
    MILLS v. PARKER.
    (560 SE2d 42)
   Eldridge, Judge.

On May 10, 2000, appellant-defendant-seller Hazel Lancaster Mills entered into a purchase and sale real estate contract (the “Agreement”) obligating her to sell her home, real property, and improvements known as 2300 Columbia Drive, Decatur (the “Property”), to appellee-plaintiff-buyer Reginald Parker. The Agreement established $125,500 as the sale price, required Mrs. Mills to convey good and marketable title to the Property by general warranty deed at closing set for July 17, 2000, and made the sale contingent upon Parker’s ability to qualify for a loan. Thereafter, Mrs. Mills changed her mind, twice notifying Parker by letter that she no longer wished to sell, and offering by her second letter to “work with [Parker]” as to his out-of-pocket expenses. Parker declined to release Mrs. Mills from closing on the Property as scheduled.

On July 13, 2000, the closing attorney received a letter by facsimile from an attorney purporting to represent Mrs. Mills’s husband, defendant Urban Jules Mills, giving notice that Mr. Mills held an interest in the Property pursuant to quitclaim deed which Mrs. Mills earlier executed in his favor and that the quitclaim deed would be recorded “in the immediate future.” A quitclaim deed, dated March 20, 2000, was filed and recorded in the Superior Court of DeKalb County on July 14, 2000, the Friday before the July 17 closing. When Mrs. Mills failed to appear at the closing, Parker brought suit against the Millses jointly, in five counts seeking specific performance of the Agreement or, in the alternative, damages for breach of contract, damages for fraudulent misrepresentation of marketable title, attorney fees, and punitive damages for intentional misconduct causing harm. Parker sued Mr. Mills individually in a sixth count for tortious interference with contractual relations.

Mrs. Mills appeals from the superior court’s order granting Parker partial summary judgment, decreeing specific performance of the Agreement, setting aside the quitclaim deed in issue as a fraudulent conveyance and finding that fraudulently represented marketable title in the Property at the time of the Agreement. Mrs. Mills also appeals from the trial court’s order insofar as it granted Parker’s motion for sanctions, striking her answer, and awarding Parker default judgment against the Millses for their total failure to respond to his first request for the production of documents which sought the original of the quitclaim deed in issue. Finding the superior court’s grants of partial summary judgment for Parker to be error, we reverse.

1. Mrs. Mills contends the superior court erred, as a matter of law, in granting Parker partial summary judgment decreeing specific performance of the Agreement and setting aside the quitclaim deed as fraudulently conveyed to her husband. Further, she contends that the grant of partial summary judgment to Parker was error upon the claim that, at the time of the Agreement, she fraudulently misrepresented that she then had fee simple title to the Property.

This Court reviews the grant of summary judgment de novo to determine whether any genuine issue of material fact exists for resolution by jury. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993). Summary judgment is proper where the moving party is able to show that no genuine issue of material fact exists and that the movant is entitled to summary judgment as a matter of law. OCGA § 9-11-56 (c). A defendant meets this burden by

showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. . . . All of the other disputes of fact are rendered immaterial.

Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). If the moving party discharges its burden, “the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Speir v. Krieger, 235 Ga. App. 392, 397 (2) (509 SE2d 684) (1998).

(a) Fraudulent transfer. Mrs. Mills argues that the superior court erred in granting partial summary judgment setting aside the quitclaim deed as a fraudulent conveyance in that a jury question remains as to whether the quitclaim deed was made with the intent to defraud Parker as a contingent creditor under the Agreement. We agree.

Pertinently, the record shows that by her response to Parker’s first request for admissions, Mrs. Mills admitted that she held marketable fee simple title to the Property on the date she entered into the Agreement, May 10, 2000. However, by her verified answer to Parker’s complaint, Mrs. Mills denied that she was the sole owner of the Property on May 10. Upon the hearing on motion for partial summary judgment and by his brief on appeal, Parker argues that the quitclaim deed, dated March 20, 2000, filed and recorded July 14, 2000, prior to closing, was executed after the Agreement was executed since Mrs. Mills’s testimony was contradictory and not reasonably explained. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986) (where favorable portion of a party-witness’s self-contradictory testimony is only evidence of such party’s right to recover, opposing party entitled to summary judgment in the absence of reasonable explanation for the contradiction).

The “admission” upon which Parker relies came in response to his request for admission stating, “At the time [you] signed the Agreement, [you] held marketable fee simple title.” Mrs. Mills denied fee simple ownership of the Property by her answer to Parker’s complaint insofar as it averred, “At the time of the Agreement, [you] held marketable fee simple title to the Property . . . and [were] the sole owner of the Property.” On the face of the pleadings, no more than confusion is apparent. An estate in fee simple is the entire and absolute property in the land. There is no greater estate or interest therein. OCGA § 44-6-20; Jenkins v. Shuften, 206 Ga. 315, 318 (1) (57 SE2d 283) (1950); Houston v. Coram, 215 Ga. 101, 102 (1) (109 SE2d 41) (1959). Marketable title is the ability to convey at closing a fee simple title without objectionable defect. Keel v. Anderson, 104 Ga. App. 296, 297-298 (1) (121 SE2d 505) (1961). Thus, if Mr. Mills here reconveyed his undivided interest in the Property to Mrs. Mills, she then would have had both a marketable title and a fee simple title. “To be reasonable, the explanation must show that ‘an honest mishas been made in the first statement.’ ” Merritt v. State Farm Fire &c. Co., 218 Ga. App. 652, 654 (463 SE2d 42) (1995).

Further, Mrs. Mills’s admissions and her answer were filed contemporaneously on September 26, 2000. Parker filed his motion for summary judgment on November 13, 2000. That Mrs. Mills filed her contradictory answer more than two months before Parker filed his motion for partial summary judgment does not make Mrs. Mills’s answer seem any less reasonable as merely “tailored” in response thereto. Compare Rhodes v. ABC School Supply, 223 Ga. App. 134, 136 (1) (476 SE2d 773) (1996) (contradictory evidence filed after motion for summary judgment as evidencing unreasonable explanation of contradictory statement on motion for summary judgment). In Prophecy Corp., the Supreme Court made clear that its intent was to foreclose any incentive to sacrifice the truth in meeting the requirement to respond on motion for summary judgment. Prophecy Corp., supra at 30. Moreover, a quitclaim deed is officially witnessed as to the execution at the time set forth in the deed. See OCGA § 45-17-8 (a) (1). A notary public is under a duty to faithfully execute his or her duty under the law. See OCGA §§ 45-17-5; 45-17-20 (a). Thus, Prophecy Corp. cannot go to what nonparties testify to, and the deed is direct evidence.

OCGA § 18-2-22 (2) provides that the following acts against creditors shall be fraudulent when done by their debtors: “Every conveyanee of real or personal estate . . . had or made with intention to delay or defraud creditors, where such intention is known to the taking party.” Having here declined to apply Prophecy Corp.,we conclude that genuine issues of material fact remain as to whether Mrs. Mills conveyed the Property to her husband at a time when Parker was a potential creditor for the Act to apply and as to whether she did so with a fraudulent intent. Jury questions remaining, the grant of partial summary judgment decreeing specific performance and setting aside the instant quitclaim deed as a fraudulent conveyance was error. See Bonner v. Smith, 247 Ga. App. 419, 420-421 (1) (543 SE2d 457) (2000) (“When a creditor attacks a conveyance [between husband and wife], slight circumstances may be sufficient to establish the existence of fraud. The burden is on the husband and the wife to show that the transaction as a whole was free from fraud. And it is for the jury to say whether the husband and the wife carried their burden in this regard. [Cits.]”).

(b) Fraudulent misrepresentation of marketable title. Parker’s claim to the contrary notwithstanding, the record reflects that upon entering into the Agreement, Mrs. Mills represented only that she would have marketable title to the Property at closing. Paragraph 8 of the Agreement pertinently provides: “Seller warrants that at the time of closing, Seller will convey good and marketable title to the said Property.” The essential elements of fraud are: (1) wilful misrepresentation of a material fact, (2) made to induce another to act, and (3) upon which such person acts to his injury. OCGA § 51-6-2 (a); Lister v. Scriver, 216 Ga. App. 741, 745 (1) (456 SE2d 83) (1995). No false representation thus having been established, the superior court erred in granting Parker partial summary judgment as to his fraudulent misrepresentation claim.

2. In view of our disposition of Division 1, we need not address Mrs. Mills’s remaining claims of error.

Judgment reversed.

Johnson, P. J., Ruffin, Miller, Ellington and Phipps, JJ, concur. Andrews, P. J., concurs in part and dissents in part.

Andrews, Presiding Judge,

concurring in part and dissenting in part.

Because I believe that the trial court properly struck the answer of Hazel Mills based on failure to respond to plaintiff’s request for production of documents and, therefore, properly granted specific performance of the contract to sell realty, I respectfully dissent in part. Because I believe that a decision of the fraud claim is premature, I concur in the judgment only regarding that count.

Parker’s request for production of documents was filed and served with the complaint on Hazel Mills and sought production of “[t]he original (or a copy on which the notarial date is legible) of the Quitclaim Deed. . . .” Response or objection to the request was due within 45 days of date of service or October 23, 2000. Neither was filed. Parker’s motion for sanctions, based solely on the failure to produce this deed, was filed on November 13, 2000. Neither the original nor a copy with legible notarial seal was produced by Hazel Mills up to and including the date of the hearing on Parker’s motion for sanctions on January 16, 2001.

Pursuant to OCGA § 9-11-37 (d) (1),

If a party . . . fails to serve a written response to a request for inspection submitted under Code Section 9-11-34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just; and, among others, it may take any action authorized under subparagraphs (b) (2) (A) through (b) (2) (C) of this Code section [OCGA § 9-11-37].

The latter subparagraph provides that such a failure authorizes “[a]n order . . . dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.”

Trial courts have broad discretion to control discovery, including the imposition of sanctions, and, absent a clear abuse of that discretion, a trial court’s exercise of it will not be reversed. Deep South Constr. v. Slack, 248 Ga. App. 183, 185 (1) (546 SE2d 302) (2001). Also, in making such a determination, the trial court sits as the trier of fact, and a finding by that court of wilful discovery abuse will be upheld if there is any evidence to support it. Cannon Air Transport Svcs. v. Stevens Aviation, 249 Ga. App. 514, 517 (4) (548 SE2d 485) (2001).

Here, no clear abuse has been shown.

Further, even without the issue of the failure to comply with discovery, I believe Parker was entitled to summary judgment on the issue of specific performance of the purchase and sale agreement entered into on May 10, 2000.

Hazel Mills argued below and here that there had been no fraud shown because it had not been proven that she could not convey “good and marketable title to said Property.”

Mills is correct that, as between Parker and herself, Urban Mills’ deed that was not recorded until after the purchase and sale agreement was entered into will not affect Parker’s right to take title. Corbin v. Shadburn, 49 Ga. App. 91 (3) (174 SE 259) (1934); see Manchester Motors v. Farmers &C. Bank, 91 Ga. App. 811, 814 (1) (87 SE2d 342) (1955). Therefore, the trial court’s grant of specific performance makes premature any consideration of the fraud claim.

Decided January 17, 2002

Reconsideration denied February 11, 2002.

King, Taylor & Stovall, James F. Stovall III, for appellant.

Shapiro, Fussell, Wedge, Smotherman, Martin & Price, Daniel I. MacIntyre TV, Samuel T. Brannan III, for appellee.

       Mrs. Mills’s letter envisioned Parker’s costs in having the Property inspected, appraised, and a title search completed.

       By her response to Parker’s first request for admissions, Mrs. Mills admitted that the quitclaim attached to the complaint was a true copy of the original.

       Parker named Mr. Mills as a co-defendant in his lawsuit. Although the superior court subsequently entered default judgment against him, he is not a party to this appeal.

       The Supreme Court transferred this case to this Court after determining that it did not fall within its equity jurisdiction, “the grant of equitable relief [below as] wholly dependent on an underlying legal issue (i.e., construction of the contract). . . .” See Lee v. Green Land Co., 272 Ga. 107 (527 SE2d 204) (2000); Redfearn v. Huntcliff Homes Assn., 271 Ga. 745 (524 SE2d 464) (1999).

       The trial court granted summary judgment as to liability only, reserving its ruling on damages for a later evidentiary hearing thereon.

       The Agreement subjected Mrs. Mills to potential liability for the payment of attorney fees. “ ‘[A] party bound by a contract upon which [the party] may become liable for the payment of money, although . . . liability be contingent, is a debtor [under] the statute [OCGA § 18-2-22] avoiding all grants made to hinder or delay creditors.’ ” Banks v. McCandless, 119 Ga. 793, 798-799 (2) (47 SE 332) (1904). Accord Rolleston v. Cherry, 237 Ga. App. 733, 735 (1) (a) (521 SE2d 1) (1999).

       A default judgment was entered against defendant Urban Mills, and he has not appealed. Urban Mills, through counsel in open court, acknowledged having failed to file an answer. See Aycock v. Calk, 228 Ga. App. 172, 173 (491 SE2d 383) (1997).


author: JOHNSON, Presiding Judge.

text:
    A01A2518.
    RAY v. THE STATE.
    (560 SE2d 54)
   JOHNSON, Presiding Judge.

Dexter Ray was convicted of armed robbery. He appealed, asserting, among other things, ineffective assistance of counsel on ten grounds. On June 9, 1999, this court issued an opinion finding that Ray’s ineffective assistance of counsel claims had yet to be ruled upon by the trial court, but that his other enumerated errors were without merit. Accordingly, this court affirmed Ray’s conviction, but remanded the case to the trial court for a hearing on the ineffective assistance of counsel claims.

On remand, the trial court held the hearing and then ruled that Ray had received effective assistance of counsel. Ray appeals from that ruling, asserting four enumerations of error. Because Ray’s enumerated errors do not support his position that his trial counsel was ineffective, we affirm the trial court’s ruling and hold that Ray is not entitled to a new trial.

1. Ray contends that his trial counsel was ineffective in failing to have certain evidence suppressed. Ray’s counsel moved to suppress the evidence in question. But as we previously ruled in Ray’s first appeal, the trial court correctly refused to suppress the evidence because it was properly seized from Ray’s apartment after his lawful arrest, after his wife gave consent to the police to search the apartment and after the police obtained a valid search warrant for the apartment. Because the evidence in question was admissible, Ray’s trial counsel cannot be said to be ineffective in failing to have it suppressed.

2. Ray argues that his trial counsel was ineffective in failing to properly cross-examine various witnesses, in failing to present evidence about the identity of an unknown caller to the police and about where police officers actually found Ray’s identification card and in failing to call certain witnesses. At the ineffective assistance of counsel hearing, Ray’s attorney fully explained his tactical reasons for his decisions on these matters. It is unnecessary for us to address each of Ray’s numerous allegations of flawed trial strategy by his counsel.

Suffice it to say that the attorney’s decisions on which witnesses to call, what evidence to introduce, how to conduct cross-examinations, and which defenses to pursue are matters of trial tactics that do not amount to ineffective assistance of counsel. Ray has not met his burden of showing both that his trial counsel’s performance was deficient and that the deficiency prejudiced his defense. “A strong presumption exists that representation has been effective, and trial strategy and tactics do not establish ineffective assistance. In the absence of testimony to the contrary, counsel’s actions are presumed strategic.”

3. Ray has combined his third and fourth enumerated errors into one argument, complaining that his counsel was deficient during the sentencing phase of his trial and that the trial court, on remand for the ineffective assistance of counsel hearing, erred in refusing to allow him to raise this issue. Contrary to Ray’s complaints, the trial court correctly refused to consider this ground because it was not timely raised in his first appeal.

To preserve an issue of ineffective assistance, the issue must be raised at the first possible stage of post-conviction review or the issue is waived. Here, the first possible stage at which Ray could have raised the issue that his counsel was ineffective during sentencing was on his first appeal when he raised his other ten ineffectiveness claims. Ray failed to do this and instead attempted to raise the issue for the first time when the case was remanded to the trial court. Because he did not raise this ground at the first possible stage, it was waived and may not be considered.

Moreover, we note that Ray’s sentence is within the legal limit for armed robbery, and that there is nothing in the record to show that at sentencing Ray’s trial counsel was deficient or that Ray would have received a different sentence but for counsel’s performance.

Decided January 25, 2002

Reconsideration denied February 11, 2002

Dexter J. Ray, Sr., pro se.

J. David Miller, District Attorney, Robert T. Gilchrist, Assistant District Attorney, for appellee.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

       See Hammond v. State, 264 Ga. 879, 882 (3) (b) (452 SE2d 745) (1995) (counsel’s failure to object to admissible evidence not deficient); Hollis v. State, 215 Ga. App. 35, 36-37 (2) (450 SE2d 247) (1994) (counsel’s late filing of motion to suppress evidence was not deficient where there was no proper ground to exclude the evidence).

       See Gunsby v. State, 248 Ga. App. 18, 22 (4) (545 SE2d 56) (2001).

        Crider v. State, 246 Ga. App. 765, 769 (4) (542 SE2d 163) (2000).

        Setser v. State, 233 Ga. App. 822, 824 (2) (505 SE2d 798) (1998).

       See Seese v. State, 235 Ga. App. 181, 183-184 (3) (509 SE2d 94) (1998) (attempt to raise claims of ineffectiveness of counsel on grounds different from those supporting the original ineffectiveness claim are procedurally barred).

       OCGA § 16-8-41 (b).

       See Brantley v. State, 230 Ga. App. 651, 653 (3) (c) (497 SE2d 399) (1998).


author: Miller, Judge.

text:
    A01A1703.
    PARKER et al. v. R & L CARRIERS, INC. et al.
    (560 SE2d 114)
   Miller, Judge.

Gary L. Parker appeals from a defénse verdict on his claim for the wrongful death of his wife arising out of a collision with a tractor-trailer. On appeal he contends that the trial court erred by failing to give a jury charge on a specific federal regulation governing motor carriers. Since the alleged violation of the regulation was not the proximate cause of the accident, we discern no error and affirm.

Parker sued R & L Carriers, Inc. (“R & L”) and others after his wife Sherry was killed in a car accident involving her pickup truck and a Ford tractor owned by R & L. The R & L tractor was driven by R & L’s employee, Demetrius Anthony. Anthony was the only survivor of the accident, and there were no eyewitnesses to the accident besides Anthony and the deceased Mrs. Parker. The accident took place at the intersection of Georgia 300 and Georgia State Road 38 when either Anthony or Mrs. Parker ran a red light at the intersection. Although Anthony claims that he did not run the red light and was not fatigued at the time of the accident, an officer who arrived at the accident scene noticed that Anthony appeared fatigued or a bit groggy. The officer admitted, however, that Anthony’s condition could have been a result of the accident, and not necessarily drowsiness.

Anthony had been on duty for his employer for several hours prior to the accident and was driving this commercial tractor to Tallahassee, Florida. Prior to his trip, Anthony had filled out a time log estimating what his travel time would have been, but destroyed this time log after the accident because it no longer accurately reflected his travel time. Pre-logging time violates federal motor carrier regulations, as such time should be logged at the same time as the actual time driven as opposed to being estimated beforehand.

At trial Parker argued that Anthony violated several Federal Motor Carrier Safety Regulations and that these violations constituted negligence per se. More specifically, federal regulations require that (1) travel time be logged at the same time as one’s journey, (2) a commercial driver should not be on duty for more than fifteen hours straight or drive for over ten hours, and (3) a commercial driver should not drive a vehicle while fatigued, as such driving could be dangerous and lead to an accident. See 49 CFR §§ 395.8; 395.3 (a) (1), (2); 392.3. At the charge conference, however, Parker withdrew requests for a specific instruction as to each of the federal regulations except for 49 CFR § 392.3, the regulation dealing specifically with driver fatigue.

Although Parker presented several arguments that Anthony violated 49 CFR § 392.3 and may have been fatigued at the time of the accident, the trial court did not instruct the jury specifically on 49 CFR § 392.3. The court, however, gave general instructions on negligence per se, spoliation of evidence, and proximate cause. The jury returned a verdict in favor of R & L.

In his sole enumeration of error, Parker argues that the trial court erred by failing to give a jury charge on 49 CFR § 392.3 in conjunction with its pattern charge on negligence per se. More specifically, he contends that the officer’s testimony and Anthony’s violations of several other Federal Motor Carrier Safety Regulations raise the inference that Anthony may have been fatigued at the time of the accident and that the violation of 49 CFR § 392.3 constitutes negligence per se. We find Parker’s argument to be misplaced and hold that the trial court did not err by failing to give the requested charge on 49 CFR § 392.3.

Setting aside the question of whether the violation of the federal regulation at issue constitutes negligence per se, we hold that Parker’s argument ignores proximate cause. The dispositive causal issue in this case is not whether Anthony was negligent in violating the Federal Motor Carrier Safety Regulations, but whether Anthony was negligent in running the red light. The proximate cause of the accident was the failure to yield the right of way, not the failure to follow federal regulations. Anthony’s inattention or fatigue may have explained his failure to yield the right of way (and is a factor Parker vociferously argued to the jury here), but whether his fatigue violated a federal regulation is irrelevant. If the light was green at the time that Anthony approached and went through it, his relative fatigue or lack thereof (and whether such violated federal regulations) would be irrelevant, as he would have had the right of way to proceed through the intersection whether fatigued or not. If the light had been red, the violation of the federal regulation would similarly be irrelevant, as he would have been obligated to stop at the intersection regardless of whether he was also in violation of a federal regulation.

Decided February 11, 2002.

Gray, Hedrick & Edenfield, William E. Gray II, John F. Salter, Jr., for appellants.

Drew, Eckl & Farnham, Bruce A. Taylor, Jr., Lisa S. Higgins, for appellees.

The running of the red light, and not the violation of 49 CFR § 392.3, was the proximate cause of the accident. A charge on 49 CFR § 392.3 was unnecessary, as it was not adjusted to the facts of the case as tried. See Stiltjes v. Ridco Exterminating Co., 192 Ga. App. 778, 780 (2) (c) (386 SE2d 696) (1989); see also Wadkins v. Smallwood, 243 Ga. App. 134, 140-141 (5) (c) (530 SE2d 498) (2000); Americani v. Sidky, 199 Ga. App. 823, 824 (3) (406 SE2d 259) (1991). We therefore discern no error from the trial court’s failure to give such a charge here.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.


author: Ruffin, Judge.

text:
    A01A1707.
    THE STATE v. JONES.
    (560 SE2d 112)
   Ruffin, Judge.

Under the recidivist sentencing provisions in OCGA § 17-10-7, the trial court sentenced Carlton Jones to life in prison without possibility of parole. On motion for reconsideration, the trial court set aside the life sentence and resentenced Jones to less than a life sentence. The State appeals, asserting that the trial court erred in resentencing Jones. Specifically, the State contends that the trial court lacked discretion to sentence Jones to anything but life in prison without possibility of parole. We agree.

The relevant facts show that on February 9, 2000, Jones invaded a home and sexually molested a minor child. Jones pled guilty to numerous felonies stemming from this incident, including burglary, terroristic threats, aggravated sexual battery, child molestation, aggravated sodomy, and possession of a firearm during the commission of a crime. Following a bench trial, the trial court also found Jones guilty of kidnapping and robbery by intimidation stemming from the same incident.

Shortly after Jones was indicted, the State filed two separate notices of its intent to seek recidivist punishment. In one notice, the State proceeded under OCGA § 17-10-7 (a), which provides that

any person convicted of a felony offense in this state or having been convicted under the laws of any other state or of the United States of a crime which if committed within this state would be a felony and sentenced to confinement in a penal institution, who shall afterwards commit a felony punishable by confinement in a penal institution, shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he or she stands convicted, provided that, unless otherwise provided by law, the trial judge may, in his or her discretion, probate or suspend the maximum sentence prescribed for the offense.

In the other notice, the State proceeded under OCGA § 17-10-7 (c), which states that

any person who, after having been convicted under the laws of this state for three felonies or having been convicted under the laws of any other state or of the United States of three crimes which if committed within this state would be felonies, commits a felony within this state other than a capital felony must, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.

It is undisputed that Jones had been convicted of at least three felonies prior to February 2000 and, thus, was subject to recidivist punishment. The issue presented to the trial court was whether the-State could proceed under both subsections of OCGA § 17-10-7, which would result in a mandatory life sentence without possibility of parole. Initially, the trial court concluded that OCGA § 17-10-7 (c) required it to impose the maximum sentence — life in prison without the possibility of parole. The trial court subsequently reinterpreted OCGA § 17-10-7 and determined that it had discretion under subsection (c) to sentence Jones to something other than the maximum sentence. Accordingly, the trial court resentenced Jones to less than a life sentence. On appeal, the State argues that the trial court was required to proceed under subsections (a) and (c) of OCGA § 17-10-7. We agree.

The various subsections of OCGA § 17-10-7 must be read together. And, if two of the subsections apply, a trial court must apply them both. This is not to say, however, that a trial court completely lacks discretion in sentencing a recidivist. Under OCGA § 17-10-7 (a), a trial court retains authority to suspend or probate a portion of the sentence. And, under subsection (c), a felon must “serve the maximum time provided in the sentence of the judge.” Accordingly, it is conceivable that a felon would not be required to actually serve the maximum sentence if the trial court decided, in its discretion, to suspend or probate a portion of the sentence. But where the maximum penalty is life in prison, a trial court lacks discretion to probate or suspend any part of the sentence. It follows that when a three-time recidivist commits a fourth felony for which the maximum penalty is life in prison, the trial court lacks discretion to sentence such felon to anything other than a life sentence without possibility of parole. Thus, the trial court erred in sentencing Jones, and we vacate that court’s sentence and remand for resentencing in accordance with this opinion.

Sentence vacated and case remanded.

Johnson, P. J., and Ellington, J., concur.

Decided February 11, 2002.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellant.

Peter D. Johnson, for appellee.

       Although it is not entirely clear from the trial court’s order, it appears that the trial court sentenced Jones to forty years in confinement followed by five years on probation. Specifically, the trial court sentenced Jones to: (1) twenty years for burglary; (2) five years for terroristic threats; (3) twenty years for aggravated sexual battery; (4) twenty years for child molestation; (5) twenty years for robbery by intimidation; and (6) twenty years for kidnapping. These sentences were to be served consecutively to a five-year sentence for possession of a firearm and a sentence of fifteen years in confinement followed by five years on probation for aggravated sodomy.

       This is so because, under OCGA § 16-6-2 (b), the maximum punishment for aggravated sodomy is life in prison. OCGA § 17-10-7 (a) requires that the trial court sentence Jones - a one-time recidivist - to the maximum sentence. OCGA § 17-10-7 (c) requires that Jones - a four-time recidivist - actually serve the maximum sentence without the possibility of parole.

       See Wallace v. State, 175 Ga. App. 685, 686 (5) (333 SE2d 874) (1985) (holding that the subsections of OCGA § 17-10-7 “must be read together”).

       See id. at 686-687.

       OCGA § 17-10-7 (c).

       See State v. Carter, 175 Ga. App. 38, 40 (332 SE2d 349) (1985).

       See OCGA § 17-10-1 (a) (1); Stone v. State, 218 Ga. App. 350, 351 (1) (461 SE2d 548) (1995).

       See Wallace, supra.

       The case upon which the trial court evidently relied, Mann v. State, 273 Ga. 366 (541 SE2d 645) (2001), does not require a different result. Mann involved the interplay between the general recidivist provisions in OCGA § 17-10-7 and the specific recidivist provisions in OCGA § 16-13-30 (d), which pertain only to repeat drug offenders. None of the crimes for which Jones was convicted fell under OCGA § 16-13-30 (d).


text:
    A01A1802.
    FARRELL v. HRC ARMCO, INC.
    (560 SE2d 107)
   Ruffin, Judge.

Matthew Farrell sued HRC Armco, Inc. (“HRC”) in Whitfield County Superior Court, alleging that the company breached a contract to indemnify him for medical expenses. HRC denied Farrell’s allegations and moved to dismiss or transfer the action due to improper venue. The trial court granted HRC’s motion and dismissed Farrell’s complaint. Farrell appeals, and for reasons that follow, we reverse.

In determining the appropriate venue, we must address Farrell’s assertion that HRC was an unauthorized insurer that issued him a surplus line insurance policy. If this contention is true, then OCGA § 33-5-34 (a) establishes venue “in the superior court of the county in which the cause of action arose,” which, according to Farrell, is Whitfield County. However, if, as found by the trial court, HRC was not an unauthorized insurer, then venue would be proper in Gwinnett County under the Georgia Business Corporation Code.

In Farrell’s complaint, he alleged that he was employed by a company called Roden Electric, Inc., but was told that his actual employer was HRC. Farrell further alleged that the document provided by his employer, which addressed his health care benefits, “came in the name of HRC Armco, Inc.” and that HRC agreed to provide him with insurance. Claiming that HRC failed to indemnify him for certain medical expenses, Farrell asserted a cause of action for breach of contract and claimed that HRC was engaged in the unauthorized business of insurance. Farrell maintains that his cause of action arose in Whitfield County because that is where he was provided the medical services and because all the relevant contracts were executed there.

Farrell has not shown, however, that the document HRC allegedly issued was an insurance policy. Indeed, other than summarily stating that the document is an insurance policy, Farrell presents no argument or citation of authority establishing that the document should be construed as an insurance policy under Georgia law or why we should consider HRC an insurer. In fact, the document appears to be HRC’s employee welfare benefits plan established by the company under the Employee Retirement Income Security Act (“ERISA”). And, contrary to Farrell’s naked assertions, the plan document expressly states that it “is not a policy of insurance” and that HRC is not an insurance company. These statements are consistent with ERISA’s declaration that an employer issuing a benefits plan governed by the Act is not an insurance company engaged in the business of insurance for the purposes of state laws regulating insurance companies and insurance contracts. Under these circumstances, we disagree with Farrell’s unsupported assertions that HRC was engaged in the unauthorized business of insurance and that venue was, therefore, proper in Whitfield County under OCGA § 33-5-34 (a).

Decided February 11, 2002.

Blevins & Blevins, David J. Blevins, for appellant.

Rickie L. Brown, for appellee.

Nevertheless, we agree with Farrell that the trial court erred in dismissing his complaint due to improper venue. It is undisputed that HRC is a Delaware corporation that is registered to do business in Georgia and has a registered agent in Gwinnett County. Thus, under OCGA § 14-2-510 (b) (1), venue was proper in Gwinnett County. Georgia’s Constitution requires a court to “transfer to the appropriate court in the state any civil case in which it determines that jurisdiction or venue lies elsewhere.” Likewise, Uniform Superior Court Rule 19.1 requires a court to treat a motion asserting improper venue as a motion to transfer the action to another court. Here, HRC even stated in its motion that “the case should be transferred” to Gwinnett County, yet the trial court dismissed the action. It was error to do so, and we reverse.

Judgment reversed.

Johnson, P. J, and Ellington, J., concur.

       OCGA§ 14-2-510.

       29 USC § 1001 et seq.

       See 29 USC § 1144 (b) (2) (B).

       Ga. Const. of 1983, Art. VI, Sec. I, Par. VIII.

       See McDonald v. MARTA, 251 Ga. App. 230, 231 (554 SE2d 226) (2001).


text:
    A01A1876.
    ROBISON v. GEORGE.
    (560 SE2d 108)
   Miller, Judge.

Michael Robison appeals from the trial court’s order granting summary judgment to Stephen George and denying Robison’s cross-motion for summary judgment. Robison contends that George’s breach of contract claim is without merit and that the evidence establishes that Robison is entitled to summary judgment on his counterclaims for breach of contract and slander. Since the evidence reveals that the parties entered into a binding settlement agreement that was breached by Robison, and that Robison has failed to create any issue relating to his counterclaims, we discern no error and affirm.

Viewed in the light most favorable to Robison, the record reveals that in early October 1998, Robison hired George to perform general contracting and construction work on Robison’s home. Pursuant to their oral agreement, Robison was to pay $20 per hour to George and his workers as well as an additional ten percent of labor expenses to pay for insurance. Robison claims that the parties also agreed that George was supposed to provide certain documentation before he would be paid, including receipts for items purchased, time sheets, lien waivers, proof of liability insurance, and a workers’ compensation policy.

Even though George did not provide all of the requested documentation, he did provide invoices for his work, and for the first month of the project, Robison paid the invoices in full. On November 21, however, Robison received an invoice that he believed was inflated, which caused him to suspect that George had been overbilling him. Robison contacted George to discuss the bill and offered George two options to resolve the matter of the allegedly inflated bills: (1) provide Robison with reduced invoices, which Robison would pay, and continue with the project, or (2) allow Robison to pay only for expenses that George could verify to Robison’s satisfaction and then be fired from the project. Although neither of these options was offered in writing, Robison claims that an additional prerequisite to George’s payment under the first option was that George provide the same documentation that Robison had previously requested.

Evidence of the agreement to resolve the matter of the inflated bills includes a transcribed telephone conversation between Robison and George that took place after the discussion of the agreement. The transcript, which both parties agree is accurate, states in relevant part:

Robison: Well, Steve, let me, let me just say a couple of things before Kristy and I talk and decide exactly how we want to. proceed. Uh, I, I just first of all have to say that I was extremely shocked. I thought that when, you know, the, the forged payroll and other items were discovered by myself and confirmed and then I said to you, “you know, I, I can look past this because we need to be at our house. We’re living in a hotel room and we need to get past this.” I thought that that [sic] when I said that and you accepted my offer to forget it and move on and I asked you to go back and correct the time sheets. I didn’t tell what, I didn’t tell you what to put on them. I didn’t say who to take off, I didn’t tell you what hours to put, did I?
George: No sir.
Robison: I just asked you to go back and put what was right.
George: Right.
Robison: Then you came back the next day and you gave me what was right and obviously it was several thousand dollars short of what you had originally billed me and that was fine because that was what I had estimated that you had overstated the payroll and the other items. And at that point, in our opinion, all may not have been forgotten but certainly all was forgiven. We were ready to move on, we were ready to move ahead. . . .

Although George denied any overbilling and believed that the original invoices were accurate, he accepted the first option and submitted reduced invoices totaling approximately $21,000, which was several thousand dollars less than the total of the original invoices.

Robison wrote checks to George amounting to $20,925.76 for the reduced invoices. However, when Robison did not receive paperwork regarding the insurance and other items, and further suspecting that George had gone back to the work site and told workers to abandon the project because Robison had “shorted” them on their payroll money, Robison stopped payment on all of the checks.

George sued Robison for, among other things, breach of contract for Robison’s failure to pay the $20,925.76. Robison counterclaimed for fraud, breach of contract, slander, conversion, and abusive litigation. George moved for summary judgment on his breach of contract claim and on all of Robison’s counterclaims. Robison responded with a summary judgment motion of his own. The trial court granted summary judgment to George, awarding him $20,925.76, and denied Robison’s motion.

In his sole enumeration of error, Robison contends that the trial court erred in denying him summary judgment and in granting summary judgment to George. More specifically, he argues that George provided self-serving testimony that contradicted the statements he made in his telephone conversation with Robison and that the self-serving portions of George’s testimony must therefore be disregarded. Robison farther argues that once George’s self-serving testimony is disregarded, the evidence reveals that George’s breach of contract claim is without merit and that Robison is entitled to summary judgment on his breach of contract and slander counterclaims. We disagree.

When reviewing the grant or denial of summary judgment, we conduct a de novo review of the law and the evidence, construing the evidence and all reasonable deductions therefrom in favor of the nonmovant. Strozzo v. Coffee Bluff Marina Property, 250 Ga. App. 212, 213 (1) (550 SE2d 122) (2001).

Parties are free to compromise disputes through private means prior to litigation (see Smith v. Haverty Furniture Co., 173 Ga. App. 447, 448 (326 SE2d 812) (1985)), and oral settlement agreements between the parties are enforceable. Poulos v. Home Fed. Sav. &c. Assn., 192 Ga. App. 501, 502 (1) (385 SE2d 135) (1989). Here, the evidence of the terms of the oral settlement agreement is the transcript of the telephone conversation between Robison and George, which shows the existence of such oral agreement. Cf. Tranakos v. Miller, 220 Ga. App. 829, 833 (1) (470 SE2d 440) (1996).

The evidence reveals that there was no term in the agreement for George to provide certain documentation before he would be paid. George only needed to provide reduced invoices, which he did, fulfilling his end of the agreement. Robison was then obligated to pay George, which he did not. The trial court therefore properly granted George summary judgment on his breach of contract claim.

In support of his argument to deny George summary judgment, Robison cites Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986), to argue that portions of George’s testimony must be disregarded because the testimony contradicts his statements in the telephone conversation with Robison. Robison’s citation to Prophecy Corp. is misplaced. The Prophecy Corp. rule does not apply to unsworn statements. Shiver v. Norfolk-Southern R. Co., 269 Ga. 168, 169-170 (496 SE2d 903) (1998). The transcript of the telephone conversation is not somehow transformed into sworn testimony simply because George verified the accuracy of the transcript during his deposition. Cf. id. (“By definition, testimony is the statement made by a witness under oath or affirmation.”) (citation, punctuation and emphasis omitted). George only verified that the transcript was accurate; he was not under oath when the conversation itself took place. Robison’s argument that the Prophecy Corp. rule applies in this case is without merit.

Since Robison first breached the settlement agreement by stopping payment on the checks for the completed work, his counterclaim for breach of contract when George later abandoned the project is without merit. See, e.g., Powers Ferry Constr. v. Commerce Builders, 191 Ga. App. 327, 328 (1) (381 SE2d 755) (1989). George was not obligated to continue working on the project until he had been paid for all of his past work based on the reduced invoice and the parties were “ready to move on” as stated by Robison. Even if George abandoned the project, he would not be in breach of the settlement agreement until he had been paid for his past work.

Decided February 11, 2002.

Ransopher & Tedrick, Tad D. Ransopher, Christopher J. McFadden, for appellant.

Furthermore, since the settlement agreement establishes that Robison was willing to forgive George for all of his alleged past overbilling practices and other misdeeds on the construction contract, his counterclaims for fraud, conversion, and attorney fees are without merit. Settlement is generally construed to be a final disposition of any claim against a party to settlement by a party to the settlement arising out of the subject incident, unless remaining claims are specifically reserved. Ingram v. Star Touch Communication, 215 Ga. App. 329, 330 (1) (450 SE2d 334) (1994). The settlement agreement indicated that “all was forgiven” once George provided the reduced invoices for his previous work. Since all of these counterclaims arise out of the past misconduct that was to be forgiven based on the settlement agreement, the trial court did not err by concluding that George was entitled to summary judgment on these claims.

Although Robison’s remaining claim for slander did not arise out of the past misconduct that was the subject of the settlement agreement, it is also without merit. Slander is actionable based only on an untrue statement. See Gillilan v. Still, 199 Ga. App. 118, 119 (2) (404 SE2d 445) (1991). Robison admitted that the reduced invoices were thousands of dollars short of the original amount that had been billed for payroll and other items. To the extent that Robison’s action for slander is based on George’s statement to workers that Robison had “shorted” them on the payroll money that George believed that Robison owed them, the statement was true at the time it was made. Robison also admitted that any additional statements about Robison “shorting” George were made after Robison stopped payment on the checks, making those statements true at the time they were made as well. The trial court properly granted summary judgment to George on this counterclaim.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

Schulten, Ward & Turner, Kevin L. Ward, Nimesh B. Patel, for appellee.


text:
    A01A2153.
    CATRETT v. LANDMARK DODGE, INC. et al.
    (560 SE2d 101)
   Ruffin, Judge.

On June 19,1999, Craig Catrett purchased a 1999 Dodge Dakota truck from Landmark Dodge, Inc. (“Landmark”). Approximately 14 months later, Catrett sued Landmark for fraud, rescissión, and violation of the Fair Business Practices Act and the Uniform Deceptive Trade Practices Act, alleging that the dealership fraudulently induced him to purchase the truck by misrepresenting its condition. Landmark moved for summary judgment, which the trial court granted. Catrett appeals, and for reasons that follow, we affirm in part and reverse in part.

Summary judgment is appropriate when no genuine issue of material fact remains and the moving party is entitled to judgment as a matter of law. On appeal from a grant of summary judgment, a de novo standard of review applies, “and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” Viewed in this light, the evidence shows that Catrett purchased the truck with approximately 4,700 miles on it. According to Catrett’s verified complaint, a Landmark salesman represented that the truck, which had a new car price information sticker inside it, was a “demonstrator” that had been on Landmark’s lot “for some time.” As defined by Landmark’s general manager, “[a] ‘demonstrator’ is a new car which has been driven by dealership personnel but not yet titled.”

Based upon the salesman’s representation, Catrett bought the truck. He also purchased an extended warranty, and Landmark prepared a warranty contract that specifically stated that it applied only to new vehicles. On June 19, 1999, Catrett signed the warranty contract, a tag application, a purchase agreement, and a finance agreement. Although the warranty contract referred to “new vehicles,” the other three documents indicated that the truck Catrett purchased was “used.” The vehicle invoice similarly classified the truck as “used,” and another form stated that Landmark sold the vehicle “as is.”

On May 15, 2000, Catrett took the truck to Landmark for service. At that point, he learned that the truck’s front end was misaligned and that a nonfactory weld had broken, rendering the vehicle inoperable and unsafe. After further investigation, he discovered that the truck was not a demonstrator, but had been previously owned and involved in two wrecks, causing over $8,500 in damage. The prior owner sold the truck to Landmark and told the dealership that it had been in a collision.

On June 6, 2000, Catrett’s attorney informed Landmark that, because its salesman misrepresented the condition of the truck, Catrett was rescinding the sales contract and tendering the vehicle to the dealership. Landmark refused to accept the truck, and this litigation ensued.

1. Catrett argues that the trial court erred in granting Landmark summary judgment on his fraud claim. We agree.

To establish fraud, Catrett must prove that (1) Landmark represented that the used truck was a “demonstrator”; (2) Landmark knew this representation was false; (3) by making this representation, Landmark intended to induce Catrett to purchase the truck; (4) Catrett justifiably relied on the representation; and (5) Landmark’s actions proximately caused Catrett damage. On summary judgment, Landmark did not dispute that Catrett presented sufficient evidence of a knowing and intentional misrepresentation that proximately damaged him. Instead, it focused on the fourth element, arguing that, as a matter of law, Catrett could not show justifiable reliance.

Under Georgia law, a dealer “demonstrator” is a “new” car because — despite its use by the dealership — it has never been part of a retail sale. Catrett claims that Landmark fraudulently represented to him that the truck was a “demonstrator” or “new,” when it actually was “used.” The evidence clearly shows that the truck had been previously sold and was, in fact, “used.” Landmark asserts, however, that Catrett could not justifiably rely on the alleged misrepresentation because various purchase documents characterized the truck as “used” and one form indicated that Landmark sold the vehicle “as is.” Nevertheless, other documents at least gave the impression that the truck had not been previously sold. According to Catrett, the manufacturer’s new vehicle price sticker was “displayed” inside the truck when he purchased it. Furthermore, during the purchase transaction, he bought an extended warranty that specifically stated that it applied only to new vehicles.

Given these facts, we refuse to conclude as a matter of law that Catrett could not rely on the salesman’s statement that the truck was a “demonstrator.” Justifiable reliance generally is a question for the jury, and jury resolution is necessary here. Although several documents referred to the truck as “used,” others indicated that it was “new.” Based on this evidence, a jury could find that Catrett reasonably believed the car was a demonstrator and that the “used” language simply referred to the truck’s use by the dealership.

Landmark’s citation to Castellana v. Conyers Toyota is not persuasive. In Castellana, a car salesman allegedly misrepresented that the credit application for a purchaser’s car loan had been approved before the purchaser signed the financing documents. The court found, however, that numerous documents the purchaser read and signed stated, without contradiction, that the credit application had not yet been approved and that the dealership could repossess the vehicle if the application was rejected. Accordingly, the purchaser could not rely on the alleged misrepresentation regarding the credit application. In contrast, all documents involved in Catrett’s purchase transaction did not characterize the truck as “used.” Some indicated that it was a new vehicle, creating a jury question as to reasonable reliance.

Landmark also argues that a merger clause in the purchase contract “renders [Catrett’s] fraud claim deficient as a matter of law.” The record shows, however, that Catrett elected to rescind, rather than affirm, the purchase contract. Thus, the merger clause does not defeat his fraud claim. The dealership further claims that Catrett failed to rescind the contract in a timely manner. “The question as to what is a reasonable or proper time within which to rescind a contract depends upon the facts of the particular case and is ordinarily a question for the jury.” Less than three weeks after Catrett learned about the truck’s previous owner, his attorney wrote to Landmark, rescinded the purchase, and tendered the truck to the dealership. Under these circumstances, we cannot find Catrett’s rescission untimely as a matter of law.

Genuine issues of material fact remain as to Catrett’s fraud allegation. Thus, the trial court improperly awarded Landmark summary judgment on this claim.

2. The trial court similarly erred in granting Landmark summary judgment on Catrett’s claim under the Fair Business Practices Act (“FBPA”). The FBPA proscribes “[u]nfair or deceptive acts or practices in the conduct of consumer transactions and consumer acts or practices in trade or commerce.” The legislation lists various activities that qualify as “unfair or deceptive acts or practices,” including “Representing that goods are original or new if they are deteriorated, reconditioned, reclaimed, used, or secondhand.”

“A single instance of an unfair or deceptive act or practice is a sufficient predicate upon which to base a claim for damages [under the FBPA] if the public consumer interest would be served thereby.” To come within the FBPA, therefore, the deceptive activity must take place in the context of the consumer marketplace. As we have found, “ ‘[o]ffering a product for sale by opening one’s door to the general public should trigger the prohibitions of the act if some deceptive act or practice [is] involved.’ ” The FBPA does not apply, however, to transactions that are essentially private.

Landmark argues that the FBPA does not govern Catrett’s truck purchase because, in its view, the transaction was private or outside the consumer marketplace. It relies heavily on our decision in Medley v. Boomershine Pontiac-GMC Truck. According to Landmark, Medley establishes that “misrepresentation of a used car as a ‘demonstrator’ fails to state an actionable claim under the FBPA,” undermining Catrett’s FBPA allegations. We disagree and find Medley factually distinguishable. Not only did the dealership salesman in Medley misrepresent a used vehicle as a demonstrator, he kept part of the purchaser’s down payment for his own use, did not disclose to the dealership that the purchaser had tendered a trade-in vehicle, and forged the purchaser’s signature on a bill of sale. Based on these activities, the dealership terminated him. As described in Medley, the salesman’s actions were “personal to him and outside the scope of his employment.” In short, this rogue salesman engaged in an essentially private transaction that occurred outside the dealership’s general business and did not impact the consumer marketplace.

No similar facts exist here. The record shows that Landmark opened its doors to sell vehicles to the general public. According to Catrett, he went to the dealership, expressed interest in a truck on Landmark’s lot, received false information about the truck’s condition, and, based on that information, consummated the sale. We refuse to characterize this transaction as private or outside the constumer marketplace.

Furthermore, the evidence raises genuine issues of material facts regarding each element of Catrett’s FBPA claim. “ ‘A private FBPA claim has three essential elements: a violation of the act, causation, and injury.’ ” Viewed favorably to Catrett, the record shows that although Landmark knew the truck was used, a salesman told him that it was a “demonstrator,” which is a new car under Georgia law. Catrett asserts that he relied on this representation in making the purchase, and, as we found in Division 1, a jury question remains as to reasonable reliance. Moreover, given that Catrett thought he was buying a demonstrator vehicle with 4,700 miles, but actually received a used truck that had been in two significant collisions, factual questions remain regarding injury. Accordingly, the trial court erred in granting Landmark summary judgment on the FBPA claim.

3. We agree with the trial court, however, that Catrett’s Uniform Deceptive Trade Practices Act (“UDTPA”) claim cannot survive summary judgment. Under the UDTPA, “[a] person likely to be damaged by a deceptive trade practice of another may be granted an injunction against it under the principles of equity and on terms that the court considers reasonable.”

Like the FBPA, the UDTPA characterizes as deceptive a representation “that goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used, or secondhand.” Unlike the FBPA, however, injunctive relief is the only remedy permitted by the UDTPA. By definition, an injunction provides relief from future wrongful conduct: “[t]he remedy by injunction is to prevent, prohibit or protect from future wrongs and does not afford a remedy for what is past.” Catrett contends that Landmark’s 1999 misrepresentation injured him, and he now seeks to “enjoin Landmark [from] continuing its Deceptive Trade Practices.” Yet, he has not presented any evidence — or even alleged — that he “is likely to be damaged” by these trade practices in the future.

Damage allegedly caused by the 1999 misrepresentation cannot be remedied through an injunction. To survive summary judgment, Catrett had to raise a factual question about the likelihood of some future wrong. Because he failed to do so, the trial court properly granted Landmark summary judgment on the UDTPA claim.

Decided February 11, 2002

Power & Westbury, Warren R. Power, LeAnne P. Cooper, for appellant.

Schulten, Ward & Turner, David L. Turner, Lea B. Kirschner, for appellees.

Judgment affirmed in part and reversed in part.

Johnson, P. J., and Ellington, J., concur.

       See Dover v. Mathis, 249 Ga. App. 753 (549 SE2d 541) (2001).

       Id.

       See Hansen v. Mt. Yonah Scenic Estates Club, 227 Ga. App. 258, 259 (488 SE2d 732) (1997) (“ ‘A properly verified pleading containing specific factual allegations must be considered in opposition to affidavits filed in support of a motion for summary judgment and may defeat the motion.’ ”).

       See Crown Ford, Inc. v. Crawford, 221 Ga. App. 881, 884 (3) (473 SE2d 554) (1996).

       See Kondo v. Marietta Toyota, 224 Ga. App. 490, 492 (2) (480 SE2d 851) (1997); Toirkens v. Willett Toyota, 192 Ga. App. 109, 110 (1) (384 SE2d 218) (1989).

       See Kondo, supra.

       See GCA Strategic Investment Fund v. Joseph Charles & Assoc., 245 Ga. App. 460, 465 (3) (537 SE2d 677) (2000); Reilly v. Mosley, 165 Ga. App. 479, 481 (1) (301 SE2d 649) (1983).

       See Toirkens, supra (“While the status of the title is apparently not an element of the statutory definitions of ‘new’ versus ‘used’ car, it nevertheless might affect whether the car was merely a ‘used demo’ or was, in fact, a ‘used car’ as those terms are commonly understood by consumers”) (emphasis supplied).

       200 Ga. App. 161 (407 SE2d 64) (1991).

       See id. at 164.

       See id. at 165; see also Doanes v. Nalley Chevrolet, 105 Ga. App. 846, 847-848 (1) (125 SE2d 717) (1962) (claimant could not justifiably rely on alleged representation that he would receive a greater trade-in allowance on old car because he signed an agreement providing that he would receive a smaller allowance).

       See City Dodge v. Gardner, 232 Ga. 766, 770 (208 SE2d 794) (1974); cf. Joseph Charles Parrish, Inc. v. Hill, 173 Ga. App. 97, 99-100 (5) (325 SE2d 595) (1984) (“Where the purchaser affirms a contract which contains a merger or disclaimer provision and retains the purchased articles, he is estopped from asserting that he relied upon the seller’s misrepresentations and his action for fraud must fail”) (punctuation omitted).

       (Punctuation and emphasis omitted.) Flair Fashions v. SW CR Eisenhower Drive, Inc., 207 Ga. App. 78, 79 (427 SE2d 56) (1993); Newton v. Burks, 139 Ga. App. 617, 618 (3) (229 SE2d 94) (1976).

       See id. at 618-619; see also Neal Pope, Inc. v. Garlington, 245 Ga. App. 49, 53-54 (2) (537 SE2d 179) (2000).

       OCGA § 10-1-390 et seq.

       OCGA § 10-1-393 (a).

       OCGA § 10-1-393 (b) (6); see also OCGA § 10-1-393 (b) (7) (unfair and deceptive practices also include “Representing that goods or services are of a particular standard, quality, or grade or that goods are of a particular style or model, if they are of another”).

       (Punctuation omitted.) Crown Ford, supra at 883 (1).

        See Regency Nissan v. Taylor, 194 Ga. App. 645, 646 (2) (391 SE2d 467) (1990).

       Id. at 646-647 (2).

       See Borden v. Pope Jeep-Eagle, 200 Ga. App. 176, 178 (1) (407 SE2d 128) (1991).

       214 Ga. App. 795 (449 SE2d 128) (1994).

       Id. at 797 (3).

       See id. at 796 (2); see also Borden, supra at 178 (car dealership’s alleged failure to honor simple interest installment loan agreement with purchaser did not affect consumer marketplace because dealership did not generally use this type of loan agreement and entered the agreement only at purchaser’s insistence).

       See Crown Ford, supra at 883 (1) (“A dealer’s sale of a used car'with an odometer reflecting less than actual mileage is an act which falls within the ambit of the FBPA because it takes place ‘within the context of the consumer marketplace.’”); Miles Rich Chrysler-Plymouth v. Mass, 201 Ga. App. 693, 697 (3) (a) (411 SE2d 901) (1991) (physical precedent only) (car dealership’s misrepresentations that vehicle had been ordered for purchaser and would arrive soon “clearly come within the FBPA requirement that the offensive activity have taken place within the context of the consumer marketplace”); Regency Nissan, supra at 647 (2) (dealership’s sale of stolen vehicle to claimant, who thought he was purchasing a used vehicle, took place “within the context of the consumer marketplace”); see also OCGA § 10-1-391 (a) (FBPA should be liberally construed “to protect consumers and legitimate business enterprises from unfair or deceptive practices in the conduct of any trade or commerce in part or wholly in the state”).

        Crown Ford, supra.

       See id. at 884 (1) (“[J]ustifiable reliance is an essential element of an FBPA claim.”).

       See Billy Cain Ford Lincoln Mercury v. Kaminski, 230 Ga. App. 598, 601-602 (3) (496 SE2d 521) (1998); Crown Ford, supra at 883-884; Miles Rich Chrysler-Plymouth, supra at 697.

       OCGA § 10-1-370 et seq.

       OCGA § 10-1-373 (a).

       OCGA § 10-1-372 (a) (6); see also OCGA § 10-1-372 (a) (7) (deceptive practices include representing “that goods or services are of a particular standard, quality, or grade or that goods are of a particular style or model, if they are of another”).

       See Friedlander v. HMS-PEP Products, 226 Ga. App. 123, 124 (1) (a) (485 SE2d 240) (1997).

       (Punctuation omitted.) Hunter v. George, 265 Ga. 573, 575 (4) (458 SE2d 830) (1995).

       See id.; OCGA § 10-1-373 (a); see also Robinson v. Toyota Motor Credit Corp., 315 Ill. App.3d 1086, 1098 (735 NE2d 724) (2000) (construing provisions of Illinois Deceptive Trade Practices Act, 815 Ill. Comp. Stat. 510/1 et seq. (West 1996), which is similar to Georgia’s UDTPA, court stated: “[w]hile the primary focus of the Uniform Act is on actions between competitors, a cause of action can be stated by an individual consumer where that consumer can allege facts that indicate he is likely to be damaged by defendant’s conduct in the future”).

       See OCGA § 10-1-373 (a).


author: Johnson, Presiding Judge.

text:
    A01A2416.
    MARSHALL v. THE STATE.
    (560 SE2d 118)
   Johnson, Presiding Judge.

Cedric Marshall was charged in a 43-count indictment with forgery in the first and second degree, computer forgery, theft by taking and by receiving stolen property, giving a false name, financial transaction card fraud, and possessing financial transaction card forgery devices. Marshall denied the charges and was tried before a judge sitting without a jury. The judge found Marshall guilty on 37 of the charges. Marshall appeals, arguing that his trial counsel was ineffective in failing to inform him fully of the rights he was waiving by proceeding with a bench trial instead of a jury trial. The argument is contradicted by the record, and we therefore affirm Marshall’s convictions.

To prevail on his ineffective assistance of counsel claim, Marshall must show that his counsel’s performance was deficient and that, but for the deficiency, there is a reasonable probability he would have insisted on having a jury trial. Marshall has not made either of these showings.

The trial transcript reveals that immediately before trial, Marshall’s attorney informed the court that he and Marshall had discussed the matter and that Marshall wanted to proceed with a bench trial. The court then told Marshall that a jury was available and asked if he understood that he was entitled to a jury trial. Marshall told the court that he understood he had the right to a jury trial, that he and his counsel had discussed his trial rights and options, that he wanted to be tried by the judge sitting without a jury, and that he was waiving his right to a jury trial freely.

Moreover, at the subsequent motion for new trial hearing on Marshall’s ineffective assistance of counsel claim, counsel testified that he and Marshall discussed his trial options and strategies many times. They reviewed the evidence and considered the impact it might have on his sentencing. They discussed the differences between a bench trial and a jury trial, including such matters as jury selection, jury instructions, and that all 12 members of a jury would have to vote unanimously to return a guilty verdict. Counsel testified that he recommended a bench trial, but never tried to force Marshall into choosing a bench trial over a jury trial.

Decided February 11, 2002.

Barry M. Hazen, for appellant.

Daniel J. Porter, District Attorney, George F. Hutchinson III, Assistant District Attorney, for appellee.

Marshall also testified that he and his lawyer had discussed the evidence, procedures, trial strategy, possible sentences, and the options of a bench or jury trial. But Marshall claimed that he was unclear about some of the differences between a jury and a nonjury trial. He never testified, though, that if he had known about those differences he would have insisted on a jury trial.

There is a strong presumption that trial counsel performed within the wide range of reasonable professional assistance, and a trial court’s finding that counsel’s performance was within that range will not be reversed on appeal unless it is clearly erroneous. Given Marshall’s knowing and voluntary waiver of a jury trial before the trial judge, coupled with the testimony of both Marshall and his counsel at the post-trial hearing, the trial court did not clearly err in finding that the performance of Marshall’s counsel was not ineffective. We therefore uphold Marshall’s convictions.

Judgment affirmed.

Ruffin and Ellington, JJ., concur.

       See Ellis v. State, 272 Ga. 763, 764 (1) (534 SE2d 414) (2000).

        Turner v. State, 245 Ga. App. 294, 295 (4) (536 SE2d 814) (2000).

       See Jones v. State, 273 Ga. 231, 235 (8) (539 SE2d 154) (2000) (bench trial conviction valid where appellant waived jury in presence of counsel).