author: Mikell, Judge.

text:
    A01A0332, A01A0333.
    BEASLEY et al. v. BEASLEY et al.; and vice versa.
    (546 SE2d 871)
   Mikell, Judge.

This appeal involves a family dispute over land, a certificate of deposit, and stock originally owned by Jessie Beasley. All of the events that spawned this litigation transpired in 1992. On March 17, Mrs. Beasley executed a will leaving her entire estate to her son Corbitt Beasley (“Corbitt”) and only $100 to each of her three daughters: Francis Elizabeth Grace, Velma Beasley Nail, and Helen Beasley Owings. The next day, Corbitt transferred to his son, Doyle Beasley (“Doyle”), 2,500 shares of stock in Effingham Bank & Trust that had been issued to “Corbitt Beasley or Helen Owings.” Earlier, on February 24, Corbitt had redeemed a $15,000 certificate of deposit that had been issued to “Corbitt Beasley or Helen Owings.” Next, on April 13, Mrs. Beasley executed a warranty deed conveying her real property, a 238-acre tract and a 100.5-acre tract, to Corbitt’s sons, Doyle and Craig Beasley (“Craig”), reserving a life estate for herself.

Five years later, in 1997, Mrs. Beasley sued Corbitt, Doyle, and Craig (“defendants”), alleging that Corbitt unlawfully converted the stock and certificate of deposit and that he obtained the warranty deed by fraud and mistake of fact. Grace, who was substituted as plaintiff in January 2000, filed an amended complaint alleging that Mrs. Beasley was incompetent when she executed the deed, was unduly influenced by the defendants, and was fraudulently induced into executing the deed. Grace sought to have the stock and certificate of deposit returned; to have the deed set aside; punitive damages; and an accounting of profits earned by the defendants on the real property. Just prior to trial, the court permitted Grace to join Owings as a real party in interest.

After hearing all of the evidence, the jury returned a divided verdict. The jury found that Mrs. Beasley was competent when she executed the deed conveying the real property to the defendants. However, the jury also found that Corbitt and Doyle converted the certificate of deposit and bank stock. No punitive damages were awarded. Judgment was entered on the jury’s verdict. In Case No. A01A0332, Grace and Owings (“appellants”) appeal the portion of the judgment that declares the deed valid. In Case No. A01A0333, defendants appeal the portion of the judgment decreeing that $19,251.15, funds representing the amount of the certificate of deposit plus interest, as well as the bank stock, be placed in the names of Corbitt Beasley and Helen Owings. Finding no reversible error, we affirm.

Case No. A01A0332

1. In their first enumeration of error, appellants contend that in responding to questions asked by the jurors during their deliberations, the trial court improperly expressed an opinion as to what facts had been proved, in violation of OCGA § 9-10-7. However, having failed to object or move for a mistrial on this ground, appellants have waived appellate review of this issue.

Appellants contend that the trial court committed “substantial error in the charge which was harmful as a matter of law,” necessitating a new trial even in the absence of a proper objection, as contemplated by OCGA § 5-5-24 (c). “ ‘To constitute harmful error within the meaning of this subsection, an erroneous charge or failure to charge must result in a gross injustice, such as to raise a question as to whether the appellant has been deprived of a fair trial.’ ” A review of the charge, recharge, and responses to the jurors’ inquiries reveals no error that rises to this level. It follows that appellants are not entitled to a new trial on this ground.

2. In their second enumeration of error, appellants argue that the trial court placed undue pressure upon the jury to reach a unanimous verdict. We disagree. After responding to a series of questions from the jurors, the trial judge instructed them that the parties had “been waiting for several years for a resolution of their problem. . . . They came up here for an answer.” The court expressed its confidence that the jury would fairly decide the issues. Appellants’ counsel stated that he “appreciated” this instruction.

The jury resumed its deliberations and then returned to the courtroom to ask additional questions. It became apparent that the jury was struggling with the issues. After the jury returned from lunch, the court inquired into its progress. The jury stated that it was divided nine to three on one issue, eleven to one on several other issues, and had reached a verdict on one issue. The court informed the jurors that it was pleased with their progress and endeavored to assist the jury by giving further instructions. Finally, the court stated: “Okay, then you’re making real good progress. And so we’ll ask you to go back and consider the issues. Oh sometimes it takes three or four days.” The jury retired to continue its deliberations. At that point, appellants’ counsel objected that the court had placed undue pressure on the jury to reach a unanimous verdict. Noting the objection, the court stated it would permit the jury to deliberate for only a brief amount of time. The jury returned its unanimous verdict within approximately 40 minutes.

A JUROR: We’ve been here four.
ANOTHER JUROR: We hadn’t been in the back four days though have we?
A JUROR: That’s not going to change.
THE COURT: But try. These people need an answer. So go back and try for a little longer.

Appellants have no cause for complaint. Assuming, arguendo, that the court’s initial instruction constitutes a modified Allen charge, appellants affirmatively consented to the charge. A party cannot ignore an alleged injustice at trial, take his chances on a favorable verdict, and complain on appeal.

Moreover, the trial court’s subsequent remarks were an appropriate exercise of its discretion. The jury did not announce that it was deadlocked. Its repeated return to the courtroom reflected more a need for the court’s clarification of the issues than a deadlock. Nor did its total deliberation time reflect a true impasse. The jury deliberated from 3:05 p.m. until 4:50 p.m. on May 24, 2000, and reconvened the next morning at 9:00. A lunch break was taken, and the verdict was returned at 2:45 p.m. Upon being polled, the jurors each announced that they heard the verdict read, that it was the verdict rendered in the jury room, and that it was still their verdict. Accordingly, we find no evidence of coercion.

In addition, contrary to appellants’ contention, the trial court followed the guidelines set out in Thornton v. State, in which we held that

it would have been better practice for the trial judge ... to have inquired further into the nature of the jury’s deadlock and to have given the jury additional instructions if, in the exercise of his discretion, he then believed such instructions were appropriate.

The trial court did not abuse its discretion when it directed the jury to deliberate further.

Case No. A01A0333

3. In a single enumeration of error, defendants allege that the trial court erred in permitting the addition of Owings as a real party in interest, and that the judgment awarding Owings an interest in the certificate of deposit and stock is not supported by any evidence.

Decided March 7, 2001.

Salter, Shook & Craig, Jason A. Craig, for appellants.

D. Duston Tapley, Jr., for appellees.

Normally, we would address both contentions out of an abundance of caution. In this instance, however, defendants’ brief fails to support the evidentiary challenge with reasoned argument, and it is deemed abandoned under Court of Appeals Rule 27 (c) (2).* Accordingly, we address only the first contention.

Defendants object to the addition of Owings as a party plaintiff on the ground that the four-year statute of limitation on the conversion claims had expired prior to her joinder. However, defendants did not raise the issue of the statute of limitation either in their motion in limine opposing the joinder of Owings or during the pretrial hearing held on this issue. As the defendants failed to elicit a ruling from the trial court on the defense, it is waived.

Defendants contend that they preserved the defense by pleading it in their amended answer, as permitted by OCGA § 9-11-15 (a). However, we reiterate that defendants did not seek a ruling from the trial court, either before or after the verdict was rendered, on whether the statute of limitation barred the conversion claims. “[A] defendant has the obligation to bring this affirmative defense to the attention of the court at the proper time if he wishes to make an issue of it.”

Judgment affirmed.

Blackburn, C. J., and Pope, P. J., concur.

       Grace was appointed by the probate court as Mrs. Beasley’s guardian in 1999.

       Mrs. Beasley’s prior will, executed in 1984, provided for her four children equally.

       The stock is now held in Centry South Bank, Inc.

        McNabb v. Landis, 223 Ga. App. 894, 896 (3) (479 SE2d 194) (1996).

       (Citation omitted.) Wisenbaker v. Warren, 196 Ga. App. 551, 555 (5) (396 SE2d 528) (1990).

        Warbington v. State, 267 Ga. 462, 463 (2) (479 SE2d 733) (1997); State v. Griffin, 240 Ga. 470 (241 SE2d 230) (1978) (a party who fails to object to a trial court’s alleged improper comment at trial is estopped from raising an objection on appeal).

       145 Ga. App. 793 (245 SE2d 22) (1978).

       Id. at 795.

       See, e.g., Ga. Communications Corp. v. Home, 174 Ga. App. 69, 70 (4) (329 SE2d 192) (1985).

        Felix v. State, 271 Ga. 534 (523 SE2d 1) (1999); Stubbs v. Ray, 245 Ga. App. 785, n. 1 (539 SE2d 179) (2000).

       Nor will we consider arguments raised for the first time in a reply brief. See Ga. Osteopathic Hosp. v. O’Neal, 198 Ga. App. 770, 780 (14) (403 SE2d 235) (1991).

       OCGA § 9-3-32.

        Obi v. State, 230 Ga. App. 476, 477 (3) (496 SE2d 556) (1998) (failure to obtain ruling on statute of limitation defense results in waiver).

        Gober v. Hosp. Auth. of Gwinnett County, 191 Ga. App. 498 (1) (382 SE2d 106) (1989). We note that the defense was preserved in the pretrial order, pursuant to OCGA § 9-11-16 (b), but this does not affect our decision.

        Oasis Goodtime Emporium I v. Cambridge Capital Group, 234 Ga. App. 641, 643 (3) (507 SE2d 823) (1998) (defense of insufficient service of process waived); see also Ware v. Fidelity Acceptance Corp., 225 Ga. App. 41, 42 (1) (482 SE2d 536) (1997).


source: Caselaw Access Project

license: Public Domain

text:
    A01A0489.
    TUNSIL et al. v. JACKSON.
    (546 SE2d 875)
   Mikell, Judge.

Merrill C. Tunsil (M. Tunsil), an attorney licensed in Florida, and his brother, Herman R. Tunsil, an attorney licensed in Georgia, represented Carl Jackson and his ex-wife, Lillie Griffin, in an action to recover for the wrongful death of their son, Keith Jackson. Because their action ended in dismissal on the merits and they did not discover the dismissal until a year and a half afterward, Carl Jackson sued the Tunsil brothers and their law firms, alleging legal malpractice and breach of fiduciary duty. On the first day of trial, both Tunsil brothers stipulated that they had been negligent but contended Carl Jackson suffered no damages. At the close of the evidence, the Tunsil brothers moved for a directed verdict, which the trial court denied.

The jury returned a verdict (1) against M. Tunsil and Merrill C. Tunsil, RA. in the amounts of $8,750 actual damages, $200,000 punitive damages, and $969.25 expenses of litigation and attorney fees; and (2) against Herman Tunsil and Herman R. Tunsil, P.C. in the amounts of $8,750 actual damages, $200,000 punitive damages, and $969.25 expenses of litigation and attorney fees.

M. Tunsil and Merrill C. Tunsil, P.A. appeal from the judgment entered on the verdict, contesting the sufficiency of the evidence to support it and the denial of their motion for directed verdict. On appeal, we construe the evidence most strongly in support of the jury’s verdict and will uphold the verdict if there exists any evidence to support it. Because the evidence amply supports the verdict, we affirm.

The evidence shows that on September 12, 1993, a passing automobile struck 20-year-old Keith Jackson and several other people as they stood on a highway in Charlton County, Georgia. Keith Jackson and a young woman died as a result of the injuries they sustained.

Within a few months of the accident, Keith Jackson’s parents engaged M. Tunsil and his brother to represent them in an action to recover damages for the wrongful death of their son and for his pain and suffering. During M. Tunsil’s investigation, he discovered that some of the individuals who were struck were wearing “bright clothing” and that the individuals in the driver’s automobile had seen the victims before impact. With regard to the pain and suffering claim, M. Tunsil determined that since no autopsy was performed, the driver would be unable to prove with medical certainty that Keith Jackson’s death was instantaneous. After further researching the accident and realizing that the victims may have been standing in the road, M. Tunsil demanded $100,000 from the driver of the automobile based on the “last chance” doctrine.

The record reveals, however, that the Tunsil brothers did not file a complaint until October 4, 1995, by which time the two-year statute of limitation had expired. M. Tunsil admitted that at the time, he did not know the statute of limitation for a wrongful death claim in Georgia and had relied, in part, on his understanding of Florida law. The driver did not make any offer to settle the case, but instead, in September 1996, moved for partial summary judgment based on the statute of limitation.

The Tunsil brothers failed to respond to the motion. Previously, they had failed to provide timely responses to discovery requests propounded by the driver, resulting in the filing of a motion to compel.

On January 9, 1997, the trial court ordered the parties to file a consolidated pretrial order by January 30,1997, warning that “[fiailure to timely comply with the terms of this Order may result in the Dismissal of your case. . . .” The Tunsil brothers failed to comply, and the trial court dismissed the case on the merits on February 5, 1997. Rather than appealing the dismissal within 30 days, M. Tunsil instead filed a motion to vacate and set aside the dismissal. He later admitted that he had not researched Georgia law before filing the motion.

On August 27, 1998, when the trial court denied the motion, M. Tunsil filed a “Motion for Rehearing,” which was denied by oral order on April 13, 1999. On May 12, 1999, M. Tunsil filed a notice of appeal, which this Court dismissed due to his failure to follow the discretionary appeals process. Further, at the legal malpractice trial, M. Tunsil’s brother admitted knowing at the time the notice of appeal was filed that the time for appeal had long since expired.

Meanwhile, in a March 6, 1997 letter to Carl Jackson, M. Tunsil did not mention the dismissal or the motion to set aside, but instead painted a dismal picture of the merits of the case. Jackson testified at the legal malpractice trial that neither M. Tunsil nor his brother ever told him that his case had been dismissed. He testified, “I couldn’t find him,” because M. Tunsil was giving him the “runaround.” He described his unsuccessful attempts to contact the attorney at his office, but the attorney was “always gone or something, never there.” Jackson stated that M. Tunsil had accused him of “sneaking up on [him] trying to find out what [M. Tunsil was] doing.” He told of an occasion when M. Tunsil had scheduled a visit to his home, and although Jackson “sat home the whole weekend, [M. Tunsil] never come by, call or nothing. . . .”

When M. Tunsil finally visited Jackson’s home, he told Jackson, “if [I] owe [you] anything it would be a few dollars and [I] could pay [you] out of [my] own pocket with that.” During cross-examination by M. Tunsil, he said to Jackson, ‘You realize sometimes in a case there is nothing going on in it to tell you, so if your lawyer tells you —.” Jackson interrupted, “Like one time I asked you . . . about the case, you told me in that little small town they don’t have court but once a year. They have court regular like everybody else. I went up there on my own, took off my job and found out. . . .” Jackson told about his unsuccessful efforts to obtain his file, recalling that he had gone to M. Tunsil’s office, then to the police department who told him that his attorney would have to release it — but that M. Tunsil had refused to do so. Jackson testified, “That is why I lost my job, trying to get somebody to take over my case. Health went bad. Everything because of you, everything because of you.”

Resorting to contacting a bar association, Jackson was referred to another attorney, who after investigating the case, informed Jackson by letter dated October 2, 1998, that his case had been dismissed on the merits in February 1997, although there had been subsequent attempts to reinstate it. The instant lawsuit ensued.

1. To recover on a legal malpractice claim, a plaintiff must show that (1) he employed the attorney, (2) the attorney failed to exercise ordinary care, skill, and diligence, and (3) such negligence was the proximate cause of damage to the client. Appellants contend that there was no evidence establishing that M. Tunsil’s negligence in the underlying wrongful death action proximately caused any damages. Appellants point to what they claim were weaknesses in the underlying wrongful death action and various defenses that the driver could have argued in support of their claim that the underlying case lacked merit. The record, however, demonstrates otherwise, containing some evidence showing liability on the driver’s part and showing the full value of Keith Jackson’s life.

We also note that at the time of the automobile accident, the driver had liability insurance of $100,000 per person with an aggregate limit of $300,000. The incident generated several lawsuits, including one wrongful death suit that settled for $35,000. M. Tunsil admitted that the underlying case was worth that amount. In addition, another person who sustained injuries settled for $15,000. These facts further demonstrate that the underlying case had settlement value. Thus, the trial court did not err in denying appellants’ motion for directed verdict on Jackson’s legal malpractice claim.

2. Appellants contend that the trial court erred in denying their motion for directed verdict on Jackson’s claim of breach of fiduciary duty, which was based on his allegation that M. Tunsil had wilfully concealed the dismissal. Appellants argue that M. Tunsil did not breach his fiduciary duty because he eventually informed Jackson of the dismissal. We disagree.

As Jackson’s legal representative, M. Tunsil owed him fiduciary duties to show loyalty, to exercise the utmost good faith, to apply his best skill, zeal, and diligence in representing him, and to avoid interests or actions that were incompatible with Jackson’s. Good faith demands that the attorney make known to the client all material facts which concern the case, which would certainly include a dismissal on the merits of the lawsuit.

The record here contains some evidence, although disputed by M. Tunsil, that M. Tunsil concealed the dismissal of the wrongful death action from Jackson. Further, Jackson testified to the physical, emotional, mental, and economic harm he suffered as he sought to determine the status of his case. Thus, the trial court did not err in denying appellants’ motion for directed verdict on the claim of breach of fiduciary duty.

3. Finally, appellants contend that the trial court erred in denying their motion for directed verdict on the issue of punitive damages. We disagree. Whether punitive damages should be awarded is ordinarily a jury question. As Jackson presented evidence that M. Tunsil committed legal malpractice and breached fiduciary duties, the trial court properly submitted the issue to the jury.

Appellants contend that there was no evidence that M. Tunsil’s actions showed wilful misconduct, malice, fraud, wantonness, oppression, or that entire want of care that would raise the presumption of conscious indifference to the consequences, as required under OCGA § 51-12-5.1 (b). This contention is meritless. “The expression ‘conscious indifference to consequences’ relates to an intentional disregard of the rights of another, knowingly or willfully disregarding such rights.” The evidence authorized the jury to conclude that M. Tunsil’s actions showed such indifference.

Judgment affirmed.

Blackburn, C. J., and Pope, P. J., concur.

Decided March 7, 2001.

Merrill C. Tunsil, for appellants.

Shapiro, Fussell, Wedge, Smotherman & Martin, Robert B. Wedge, Tracey Walker, for appellee.

       Herman Tunsil and Herman R. Tunsil, RC. are not parties to this appeal. While M. Tunsil is licensed to practice in Florida, he is not licensed to practice in Georgia and appears pro se in this appeal. In his brief, he identified only himself as the appellant. However, Merrill C. Tunsil, P.A. thereafter adopted M. Tunsil’s brief in all respects, which appears to be acceptable under Eckles v. Atlanta Technology Group, 267 Ga. 801, 806 (2) (485 SE2d 22) (1997) (rule that only a licensed attorney is authorized to represent a corporation in a proceeding in a court of record is applicable to corporate representation only, and all noncorporate business owners are completely unaffected thereby); see OCGA § 14-10-2 (“ ‘Professional association’ means an unincorporated association. . . .”).

        Ga. Farm &c. Ins. Co. v. Schlies, 238 Ga. App. 299 (1) (520 SE2d 468) (1999).

       The woman’s case settled for $35,000; see Division 1, infra.

         Szurovy v. Olderman, 243 Ga. App. 449, 451 (530 SE2d 783) (2000).

        Tante v. Herring, 264 Ga. 694, 695-696 (2) (453 SE2d 686) (1994); Nelson & Hill, P.A. v. Wood, 245 Ga. App. 60, 67 (3) (537 SE2d 670) (2000).

        Glisson v. Freeman, 243 Ga. App. 92, 99 (1) (532 SE2d 442) (2000).

       See generally Tante, supra, 264 Ga. at 696.

        Home Ins. Co. v. Wynn, 229 Ga. App. 220, 223 (2) (493 SE2d 622) (1997).

       Id.

       (Citations and punctuation omitted.) Id. at 225 (10).


author: Pope, Presiding Judge.

text:
    A00A1795.
    FIRST BORN CHURCH OF THE LIVING GOD, INC. et al. v. BANK OF AMERICA, N.A. et al.
    (546 SE2d 1)
   Pope, Presiding Judge.

This case involves a heated contest that began in 1994 for control of the First Born Church of the Living God, Inc. The contestants are the Executive Board of the church on one side, and Senior Bishop Albert Hill and his alleged successor Bishop Leonard Goode on the other. Essentially, the Board contends that according to the church constitution it holds the supreme authority of the church and that it used that authority to remove Hill. Hill and, now, Goode contend that even if the Board has the supreme authority, it failed to follow the procedural requirements of the constitution when it removed Hill.

This is the second appearance of this case in this Court. The litigation began as an interpleader action filed by Bank South, N.A. (now known as Bank of America, N.A.) in the Superior Court of Ware County to determine who at the church had authority over the church’s accounts at the bank. The bank was responding to the fact that in November 1994, at an emergency meeting, the Executive Board of the church voted to remove Senior Bishop Hill, to designate Bishop W. L. Johnson as the new senior bishop, and to remove Hill as a signatory on the church bank accounts. The Board then instructed the bank not to honor checks signed by Hill. After receiving a check signed by Hill, the bank filed the interpleader action. The trial court held a hearing (apparently a bench trial), upheld the Board’s decision removing Hill, and ordered the bank to comply with the direction of the Board. The trial court stated that its order “shall be a final order in this case.”

In First Born Church of the Living God v. Bank South, 221 Ga. App. 739 (472 SE2d 469) (1996) (“First Born I), this Court reversed.

This Court held that the dispute concerned control of church property and whether the Board complied with the provisions of its written constitution. Therefore the issue was secular and not ecclesiastical in nature. And, because the Board had failed to follow the procedural requirements of the church constitution when it changed the administration of the church’s accounts with the bank and when it removed Senior Bishop Hill, those actions were invalid. This Court concluded: “Therefore, the actions at issue here, taken in violation of the express legislative procedures required by the Church’s constitution[,] were not validly enacted.” Id. at 741-742. On November 6, 1996, the trial court “ordered that the judgment of the Court of Appeals be and is hereby made the Judgment of this Court.”

However, the trial court did not enter a final judgment. Instead, it apparently retained jurisdiction of the case and eventually had a second bench trial, held on September 8 and November 18, 1999, reconsidering whether Hill had been properly removed by the Board in 1994 or later expelled and excommunicated in either 1995 or in 1997/1998. Neither party had amended the pleadings. Rather, it would appear that the Board simply desired another hearing, over four years after the initial hearing, in an attempt to get the court to ratify at least one of the Board’s two subsequent attempts to oust Senior Bishop Hill. Indeed, at the bench trial, the court asked the Board, “Your intention is to submit evidence as to what has taken place since the Court of Appeals sent its decision down and then ask for another order of the Court. . . either for or against?” Counsel for the Board replied, “That’s correct with the exception that some of the events that would be in the evidence occurred while the case was pending on appeal.” After a bench trial, the court again held in favor of the Board, and that decision is the one now on appeal.

The trial court first held that the law of the case established in First Born I was not controlling. The court then held (1) that contrary to First Born I, this case involves not a church property dispute, but a religious dispute, the resolution of which is for ecclesiastical and not civil tribunals; (2) that the Executive Board is the highest tribunal of the church and therefore the trial court must defer to its decisions; (3) that the Board itself concluded that it had complied with the constitution when it terminated Hill in 1994; (4) that therefore, contrary to this Court’s holding in First Born I, Hill was properly removed in 1994; (5) that the Board also removed Hill in accordance with the constitution in 1997/1998; (6) that Bishop Goode was never properly appointed to be the assistant senior bishop and therefore could not succeed Senior Bishop Hill; and (7) that, accordingly, the bank is authorized to release the bank accounts in accordance with the direction of the Board.

Goode’s first enumeration of error is that no justiciable issue was ripe for consideration in the court below. We agree.

First, the decision in First Born I and entry of the remittitur as the judgment of the trial court effectively ended the case based on the pleadings submitted by the parties. There was nothing left to resolve, and it was error for the court to retain jurisdiction to consider the propriety of the Board’s successive attempts to remove Senior Bishop Hill. Goode raised this point at the beginning of the bench trial and objected to proceeding without amended pleadings or a pretrial order.

Neither the bank nor the Board amended the pleadings to assert any other claim. There are no allegations that Hill attempted to write any other checks in the name of the church. Indeed, Bishops Hill, Stevenson and Johnson were the only three bishops on the signature card in 1994 when the initial case was filed, and Hill and Stevenson are now dead. There is no evidence that Goode was ever added to the signature card at the bank. There is no allegation or evidence that Goode attempted to write any checks in the name of the church.

The decision in Summer-Minter & Assoc. v. Giordano, 231 Ga. 601 (203 SE2d 173) (1974) (“Giordano IF), is instructive. In that case, the trial court had denied the defendants’ motion for summary judgment on the plaintiffs’ claims but certified the decision for review on appeal. In the case’s first appearance before the Supreme Court, the Supreme Court reversed that decision and held that the trial court erred in denying the defendants’ motion. Summer-Minter & Assoc. v. Giordano, 228 Ga. 86 (184 SE2d 152) (1971) (“Giordano I"). But before the remittitur became the judgment of the trial court, the plaintiffs amended their complaint alleging basically the same facts but adding an additional allegation of wrongdoing by one of the defendants. Giordano II, 231 Ga. at 602. The defendants objected to the amendment. Id. at 603.

In Giordano II, the Supreme Court held that its earlier decision disposed of the litigation and that the plaintiffs were not authorized to amend their pleadings. Id. at 605-606. Although the Court’s reasoning largely focused on the policy of finality underlying the summary judgment procedure, it made clear that where there has been an adjudication on the merits of the case, the plaintiff is not free to amend its pleadings:

once the issues are narrowed for trial, the complaint stands only upon those facts adduced at trial by the plaintiff, and once a verdict is returned or a motion for directed verdict is sustained, it is too late to amend even pending remittitur.

(Citations omitted.) Id. at 605. Nor can the court hear additional evidence that would otherwise affect the finality of the judgment. Shepherd v. Shepherd, 243 Ga. 253, 254-255 (253 SE2d 696) (1979); Smith v. Allen, 131 Ga. App. 518, 519 (1) (206 SE2d 540) (1974).

The reasoning of Giordano II applies here because a party against whom a verdict has been entered is in the same position as a party against whom summary judgment has been granted. See Giordano II, 231 Ga. at 604. And, the situation here is even more compelling.

The parties had a bench trial in 1995 on the issues raised in the pleadings. It was a complete adjudication on the merits. The trial judge entered a final order, we reversed and held that Bishop Hill had not been properly terminated in 1994, and the trial court entered the remittitur as the judgment of the court. At that point, the court should have entered final judgment, thereby freeing the bank to honor the checks written by Hill. Instead, no one even attempted to amend the pleadings of the case. The case simply sat dormant until the Board sought to have its subsequent attempts to remove Bishop Hill ratified by the court. At the second bench trial, most of the facts raised had not even occurred when the remittitur was entered. And they involve numerous events in the history of the church from September 1995 through almost the date of the trial in September 1999.

Moreover, there is no evidence in the record that after the first bench trial, the bank was faced with a choice of whether to honor checks signed by Bishop Hill. Although the bank apparently acquiesced in allowing the case to continue, the case took on a decidedly different appearance after the first trip to the Court of Appeals. The dispute over the church property, i.e., checks written on the church account by then Senior Bishop Hill, was, according to the pleadings and not contradicted by the evidence presented at the second trial, completely resolved.* ** The remaining dispute is simply one concerning which of two factions of the church is rightfully in control.

We see no reason to exempt respondents in an interpleader action from the rule that where an earlier decision of this Court completely disposes of the litigation, the parties are not free to raise new issues to keep the case alive.

Second, this Court’s decision in First Born I is the law of the case. OCGA § 9-11-60 provides that that ruling may not be changed: “any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.” See also Jebco Ventures v. City of Smyrna, 259 Ga. 599, 601-602 (1) (385 SE2d 397) (1989).

The trial court gave two reasons for disregarding the law of the case. First, it noted that although in First Born I this Court said the church was “non-hierarchical,” the Supreme Court of Georgia in a subsequent decision in a different case held that the First Born Church is hierarchical. See First Born Church of the Living God v. Hill, 267 Ga. 633 (481 SE2d 221) (1997). Second, the court stated that “there was new evidence of actions occurring subsequent to the initial order.”

The trial court erred by ignoring the law of the case. First, Hill was not an appeal of First Born I, and it involved different facts, different issues, and different parties from First Born I. See Hill, 267 Ga. at 633-634. Second, although it did involve the same church, Hill did not overrule our holding in First Born I.

In First Born I, we stated: “The Church is an incorporated non-hierarchical church and its constitution controls its decisions and local Church property.” 221 Ga. App. at 740. Regardless of the use of the term “non-hierarchical,” the decision in First Born I is based on the application of “neutral principles of law” to resolve what was characterized as a property dispute. See, e.g., Crumbley v. Solomon, 243 Ga. 343 (254 SE2d 330) (1979). Georgia courts characterize church government as either congregational or hierarchical. Id. As stated by the Supreme Court,

If the church government is congregational, then a majority of its members control its decisions and local church property. If hierarchical, then we use “neutral principles of law” to determine whether the local church or parent church has the right to control local property. Those “neutral principles” are state statutes, corporate charters, relevant deeds, and the organizational constitutions of the denomination.

Id. Thus, church constitutions are analyzed when the dispute involves hierarchical churches, not congregational.

Furthermore, even if Hill changed the law concerning whether the church is hierarchical, and therefore implicitly overruled First Born I, First Born I is still binding on the parties. See Dicks v. Zurich American Ins. Co., 231 Ga. App. 448 (499 SE2d 169) (1998); Fulton-DeKalb Hosp. Auth. v. Walker, 216 Ga. App. 786, 787 (1) (456 SE2d 97) (1995). Dicks explains that the law of the case governs the original parties even if there has been a change in the law: “The principle in the decision may be reviewed and overruled in another case between different parties, but as between the parties the decision stands as the law of the case. . . .” (Citations and punctuation omitted.) Dicks, 231 Ga. App. at 450. Similarly, Walker instructed that:

Decided February 14, 2001

Reconsideration denied March 8,2001

Hunter, Maclean, Exley & Dunn, Kirby G. Mason, John M. Hatfield, Walter D. Adams, for appellants.

Gibson & Spivey, D. Lamar Gibson, for appellees.

If the decision of an appellate court thereafter becomes “incorrect” because the law changes — either because of subsequent case law or because of later-enacted statutes — it may not be binding precedent for other situations. However, between the parties to the original decision it remains [binding].

Walker, 216 Ga. App. at 787 (1). Finally, although the law of the case may not control “where the evidentiary posture of the case changes after remand by the appellate court,” Lowman v. Advanced Drainage Systems, 228 Ga. App. 182, 183 (491 SE2d 427) (1997), this Court did not remand this case for further hearings in First Born I. As shown above, the case was completely resolved.

It follows that the trial court improperly reconsidered the propriety of the attempted 1994 removal of Senior Bishop Hill and improperly attempted to resolve the conflict between the parties arising out of facts that occurred after the initial decision. The judgment of the trial court is reversed with direction that upon receipt of the remittitur a judgment be entered in accord with the decision of this Court in First Born I.

Judgment reversed.

Miller and Mikell, JJ, concur.

       Indeed, both sides claim the right to file pleadings in the name of the church.

       Albert Hill died in April 1999, and Goode, Hill’s son-in-law, asserts that he succeeded Hill because Hill appointed him to be the assistant senior bishop in July 1998.

       See also Kirkland v. Southern Discount Co., 187 Ga. App. 453, 454 (1) (370 SE2d 640) (1988).
      Just as reversal of the denial of a motion for summary judgment is a decision that summary judgment should be entered, reversal by an appellate court of the trial court’s denial of a motion for a directed verdict can mean only that a directed verdict should have been and should be entered. This is tantamount to a reversal with direction, and thus no retrial can be held on those issues.
      (Emphasis omitted.) Id.

       Although the church funds may have been frozen for years by the order of the court, this does not change the fact that the only property dispute alleged in the pleadings was resolved in 1996.


author: Ruffin, Judge.

text:
    A00A1927.
    CRENSHAW v. THE STATE.
    (546 SE2d 890)
   Ruffin, Judge.

A jury found Earnest Crenshaw guilty of trafficking in cocaine. On appeal, Crenshaw challenges the sufficiency of the evidence. Crenshaw also contends that the trial court erred in denying his motion to suppress; that the trial court erred in admitting similar transaction evidence; and that he received ineffective assistance of counsel. For reasons discussed below, we affirm.

1. Viewed in a light most favorable to the jury’s verdict, the evidence shows that on the afternoon of November 19, 1998, Crenshaw was driving a rented Nissan Altima with Florida tags and Keiyatta Smith, a long-time friend of Crenshaw’s, was in the passenger seat. Deputy William Waterson noticed that neither Crenshaw nor Smith was wearing a seat belt, and he initiated a traffic stop.

At Waterson’s request, Crenshaw produced a Florida driver’s license and a car rental agreement. Although Crenshaw was listed as a driver, the rental agreement was in someone else’s name, and it had expired. Waterson decided not to ticket Crenshaw for the seat belt violation, but he detained him in order to check on the status of the rental agreement to ascertain whether it had been extended.

While waiting for a response from the car rental agency, Water-son had a drug dog perform a free air search around the exterior of the car. Upon reaching the driver’s side, the dog, with no prompting from its handler, jumped through the open car window and began “really alerting a lot inside the vehicle.” The dog was quickly removed from the vehicle, and the deputies recommenced the free air search around the car. The dog alerted again on the passenger door. In an apparent attempt to explain the dog’s behavior, Crenshaw volunteered that he had smoked marijuana that morning. Following this revelation, the deputies searched the car and found a bag containing 240.3 grams of cocaine. Both Crenshaw and Smith were charged with trafficking in cocaine.

Smith pled guilty and, at Crenshaw’s trial, testified on Crenshaw’s behalf. Smith acknowledged that rental cars often are used in trafficking cocaine. And, although Smith admitted that Crenshaw had arranged the car rental, Smith claimed thát Crenshaw did not know about the cocaine in the car, which Smith claimed belonged only to him.

To refute Smith’s claim that Crenshaw did not know about the cocaine, the State presented evidence of a prior transaction involving Crenshaw. Carl Lounge, a police officer from St. Petersburg, Florida, testified that in June 1991, he responded to a complaint that someone was shooting birds. When Lounge arrived at the house where the alleged shooting took place, he was met by Crenshaw and another man. During the course of his investigation, Lounge saw what appeared to be a beaker full of crack cocaine. Lounge then obtained a search warrant and, in executing the warrant, discovered 370 grams of crack cocaine, $6,800, 4,000 razor blades, and several thousand plastic baggies. As a result of this incident, Crenshaw pled guilty to trafficking in cocaine.

Based on this evidence, the jury found Crenshaw guilty of trafficking in cocaine. Under OCGA § 16-13-31 (a) (1), any person “who is knowingly in possession of 28 grams or more of cocaine” is guilty of trafficking in cocaine. Here, the record shows that Crenshaw arranged to rent the car in which the drugs were found and that rental cars are commonly used in the drug trade. In addition, after the drug dog alerted on the car, Crenshaw volunteered that he had smoked marijuana that day. Such a self-incriminating explanation creates an inference that Crenshaw was attempting to divert the deputies from further investigation, which, in turn, implies that Crenshaw knew about the drugs. Finally, the evidence that Crenshaw had trafficked in cocaine in the past demonstrates his bent of mind. Accordingly, based upon the totality of the evidence, the jury was authorized to conclude that Crenshaw was guilty of the offense charged.

Crenshaw argues that the evidence was insufficient because other people had access to the rental car. Although the owner or driver of a car in which drugs are found “is presumed to have possession and control of [the] contraband found in the automobile,” such presumption may be rebutted by evidence that others had equal access to the car. Here, Crenshaw points to evidence that Smith had equal access to the car. We note, however, that Smith and Crenshaw were both charged with knowing possession of 28 grams or more of cocaine. And equal access provides no defense where, as here, the evidence shows that the person who had equal access was in joint constructive possession of the contraband. To the extent that Crenshaw relies upon Smith’s “sworn” testimony that the cocaine was his alone, the jury was not required to believe Smith’s revelation at trial that the cocaine was his.

2. Prior to trial, Crenshaw unsuccessfully moved to suppress evidence of the cocaine found in the car, arguing that it was the fruit of an illegal search. In two enumerations of error, Crenshaw asserts that the trial court erred in denying his motion to suppress.

In response, the State argues that Crenshaw waived his right to appellate review of this issue by conceding to the admissibility of the evidence at trial. In his pre-trial motion, Crenshaw argued that the cocaine evidence should be excluded because Waterson exceeded the scope of his lawful authority in detaining him after issuing the written warning for the seat belt violation. When the evidence was admitted at trial, however, Crenshaw’s attorney said that his only objection was “that the writing on the outside [of the exhibit] has my client’s name on it. I don’t have any problem with them tendering that specific exhibit, just not with the writing on it.”

When a motion to suppress has been filed, merely failing to object to the admission of the evidence does not constitute a waiver of the grounds asserted in the motion. However, “affirmatively stating there is no objection in effect concedes the point.” Thus, by stating that the only problem with the evidence was the writing on the bag, Crenshaw conceded to its admission on all other grounds.

3. In two enumerations of error, Crenshaw maintains that the court erred in admitting the similar transaction evidence.* According to Crenshaw, the trial court erroneously concluded that the evidence was admissible to establish his bent of mind. Crenshaw also asserts that the trial court failed to ascertain whether the probative value of the evidence outweighed its prejudicial impact.

In order to be admissible, similar transactions do not need to be identical to the crime charged. “Rather, the evidence must show that the defendant committed the other crimes and that sufficient similarity between the crime charged and the prior crimes exists, so that proof of the former tends to prove the latter.” Such evidence may be admitted to establish motive, intent, plan, identity, bent of mind, or course of conduct.

During the hearing on Crenshaw’s motion to suppress, the trial court stated that the prior transaction was “not similar so much in terms of true factual similarity, but it shows that bent of mind, that knowledge, that lure of easy money.” On appeal, Crenshaw argues that the lure of easy money is not an appropriate purpose for admitting similar transaction evidence. Thus, he maintains, the trial court should have excluded the evidence. What Crenshaw fails to acknowledge, however, is that the trial court clearly stated that it was admitting the evidence to establish Crenshaw’s bent of mind — to demonstrate that he knew the cocaine was in the car, which is a proper purpose for its admission.

To the extent that Crenshaw suggests that the prior transaction was not sufficiently similar, we note that

[t]he issue of admissibility of extrinsic transactions has never been one of mere similarity. It is, rather, relevance to the issues in the trial of the case. Depending upon the purpose for which the extrinsic evidence is offered, e.g., where similar transaction evidence is offered to prove identity, the state may be required to prove a high degree of similarity between relevant characteristics of the extrinsic offenses and the charged crimes, or it may only have the burden of showing a logical connection between crimes which are essentially dissimilar. When similar transaction evidence is being introduced to prove motive, intent, or bent of mind, it requires a lesser degree of similarity to meet the test of admissibility than when such evidence is being introduced to prove identity.

On appeal, we focus on the similarities between the offenses rather than the differences. In so doing, we note that, in both offenses, Crenshaw was discovered with one other individual and enough cocaine to constitute the offense of trafficking. Where, as here, the sole issue is whether Crenshaw knew about the cocaine in the car, the evidence that he had previously pled guilty to trafficking was clearly relevant in establishing his bent of mind. Accordingly, the trial court did not err in admitting evidence of the similar transaction for this purpose.

Additionally, we find no error in the trial court’s failure to expressly state that the probative value of the similar transaction evidence outweighed its prejudicial impact. In determining that the evidence was relevant, the trial court necessarily concluded that its probative value outweighed any prejudicial impact, and there is no legal requirement that the trial court make an express finding to this effect. Thus, the trial court’s failure to make such express findings provides no basis for reversal.

4. Finally, Crenshaw contends that he received ineffective assistance based upon his attorney’s failure to preserve the objections raised in his motion to suppress. In order to establish a claim of ineffective assistance, Crenshaw

must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. Prejudice exists where there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel. We will affirm a trial court’s finding that counsel was effective unless it is clearly erroneous.

Here, Crenshaw is unable to show prejudice because the trial court did not err in denying his motion to suppress.

Where law enforcement officers stop a car, the stop must be justified by some objective manifestation that the person either is or is about to be engaged in criminal activity. Although the suspicion does not need to rise to the level of probable cause, it “must be more than mere caprice or a hunch or an inclination. A founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.”

In this case, Waterson initially stopped Crenshaw due to a seat belt violation, which is a legitimate reason for stopping a motorist. Although Waterson decided not to ticket Crenshaw for that violation, he detained Crenshaw in order to investigate the status of the car rental agreement, which had expired. At the hearing on Crenshaw’s motion to suppress, Waterson testified that he was concerned that, if Crenshaw had not renewed the rental agreement, he may have converted the car to his own use. Given that the rental agreement had, in fact, expired, Waterson had an objective reason for believing that Crenshaw may have been engaged in criminal conduct.

During the hearing on the motion to suppress, Crenshaw argued that, even if Waterson suspected the car might have been converted, he had no “right to bring a dog in. That didn’t give them the right to try to trick him into contradicting himself. It didn’t give him the right to hold [Crenshaw] there to investigate a drug courier profile.” It is undisputed, however, that the drug dog was present while Waterson was waiting to hear back from the car rental agency. Indeed, it appears that the drug dog was present from the outset of the traffic stop. Thus, Crenshaw was not detained for the purpose of bringing a drug dog to the scene to investigate. And, because Crenshaw was validly detained, Waterson was free to have the handler walk the dog around the car, as “use of a trained drug detection dog, in a location where he is entitled to be, to sniff the exterior of a container, is not an unreasonable search.”

Decided March 8, 2001

Moulton & Massey, Jeremy A. Moulton, for appellant.

Richard R. Read, District Attorney, for appellee.

At the hearing on his motion to suppress, Crenshaw argued that the evidence should be suppressed because the drug dog was in a location where it was not entitled to be — inside the car. We note, however, that the deputies did not treat the dog’s jumping into the car as probable cause for the search. Rather the dog handler removed the dog from the car without searching its interior. It was only after the dog alerted at the passenger door that the car was searched, and “the ‘alert’ of a trained narcotics dog, standing alone, [is] sufficient to provide probable cause.” Moreover, it was only after Crenshaw volunteered that he had smoked marijuana that officers searched the car.

We will not disturb a trial court’s order on a motion to suppress if there is any evidence to support it, and the trial court’s findings of fact will be accepted unless clearly erroneous. Under the circumstances of this case, we find no error in the trial court’s denial of Crenshaw’s motion to suppress. Therefore, his attorney’s failure to preserve the issue for appeal does not constitute ineffective assistance.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

       See Tanner v. State, 243 Ga. App. 640, 641 (533 SE2d 794) (2000) (standard of review).

       See Brown v. State, 245 Ga. App. 706, 708-709 (2) (538 SE2d 788) (2000).

        Hendrix v. State, 199 Ga. App. 599, 600 (1) (405 SE2d 576) (1991).

       See id.

       See Wells v. State, 237 Ga. App. 109, 111 (1) (514 SE2d 245) (1999) (“ ‘two or more persons may be convicted of possession of the same contraband’ ”).

       See Reed v. State, 244 Ga. App. 146, 147 (534 SE2d 871) (2000).

       See Tran v. State, 246 Ga. App. 153, 159 (6) (539 SE2d 862) (2000).

       See Carter v. State, 238 Ga. App. 708, 709 (1) (520 SE2d 15) (1999).

       (Punctuation omitted; emphasis in original.) Id.

       See id.; see also Mattingly v. State, 205 Ga. App. 777 (1) (423 SE2d 709) (1992).

       The State contends that Crenshaw waived this argument by failing to object at trial. However, Crenshaw filed a motion in limine to exclude the evidence, and when such motion has been filed, a defendant does not need to renew his objection at trial to preserve the issue on appeal. See Reno v. Reno, 249 Ga. 855 (1) (295 SE2d 94) (1982); see also Chastain v. State, 239 Ga. App. 602, 605 (2) (521 SE2d 657) (1999).

       See Usher v. State, 236 Ga. App. 663, 666 (3) (512 SE2d 380) (1999).

       (Punctuation omitted.) Id.

        Jackson v. State, 246 Ga. App. 133, 134-135 (2) (539 SE2d 849) (2000).

       See id.

       (Punctuation omitted.) Quezada v. State, 236 Ga. App. 718, 720 (1) (512 SE2d 401) (1999).

       Id. at 721.

       See Duque v. State, 228 Ga. App. 391, 392-393 (491 SE2d 841) (1997).

       See Sheppard v. State, 267 Ga. 276, 280 (4) (476 SE2d 760) (1996).

       See Newman v. State, 233 Ga. App. 794, 795 (2) (504 SE2d 476) (1998).

       Crenshaw also argues that his trial counsel rendered ineffective assistance in waiving objections to the similar transaction evidence. As we found no waiver, however, this argument is unavailing. See McGlohon v. State, 234 Ga. App. 382, 384 (506 SE2d 886) (1998).

       (Punctuation and footnotes omitted.) Watson v. State, 243 Ga. App. 636, 637 (534 SE2d 93) (2000).

        Johnson v. State, 230 Ga. App. 535, 537 (1) (496 SE2d 785) (1998).

       (Citations and punctuation omitted.) Id.

       See OCGA § 40-8-76.1 (b); see also Edwards v. State, 239 Ga. App. 44, 46 (2) (518 SE2d 426) (1999).

       Compare State v. Kwiatkowski, 238 Ga. App. 390, 392-393 (519 SE2d 43) (1999).

        O’Keefe v. State, 189 Ga. App. 519, 526 (3) (376 SE2d 406) (1988).

        State v. Folk, 238 Ga. App. 206, 209 (521 SE2d 194) (1999).

       See Johnson, supra at 536 (1).

       See Turner v. State, 246 Ga. App. 49, 57 (6) (539 SE2d 553) (2000).


author: Blackburn, Chief Judge.

text:
    A01A0086.
    MATTHEWS v. THE VARSITY, INC.
    (546 SE2d 878)
   Blackburn, Chief Judge.

In this slip and fall action, Pamela Scott Matthews appeals the trial court’s grant of summary judgment to The Varsity, Inc., contending that The Varsity had constructive knowledge of a foreign substance on its floor which caused Matthews to fall. For the reasons set forth below, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp.

Viewing the evidence in this light, the record shows that Matthews went to The Varsity to interview Terrance Searcy on behalf of her employer. Matthews entered the restaurant on its second level and proceeded down a flight of steps to the main floor. Matthews slipped on the second step and fell to the ground, injuring her hip and ankle. At the time of her fall, Matthews, who weighed approximately 215 pounds, was wearing three-inch spiked heels. Matthews did not see any liquid on the step prior to her fall, and she did not inspect the step after the fall occurred.

Matthews contends, however, that she felt liquid on the step during the fall and that she observed a damp spot on the bottom of her shoe afterward. In addition, Matthews offered a highly speculative affidavit by Searcy in which he stated: “On the steps where Ms. Matthews fell were greasy spots, some water, and perhaps some french fries. Based on my observations, Ms. Matthews slipped on the french fries.” (Emphasis supplied.)

Clara Brown, a Varsity supervisor, deposed that she had checked the area of the stairs only four to five minutes before Matthews fell and that there was no liquid or debris on the steps at that time. In addition, Elton Drayton, another Varsity employee, saw Matthews fall from a vantage point approximately 15 feet away. From his vantage point, Drayton saw nothing on the step which would have caused Matthews to lose her balance.

In order to show The Varsity was negligent, Matthews must show (1) that The Varsity had actual or constructive knowledge of the foreign substance on its stairs and (2) that she was without knowledge of the substance or was hindered from discovering it by The Varsity. Robinson v. Kroger Co.

Matthews does not contend that The Varsity had actual knowledge of the foreign substance on the stairs, only constructive knowledge. Matthews can establish The Varsity’s constructive knowledge in one of two ways: (1) by evidence that an employee of The Varsity was in the immediate vicinity and easily could have seen and removed the hazard or (2) that the substance had been on the floor long enough that (a) it would have been discovered if The Varsity had exercised reasonable care in inspecting its premises and (b) it would have been removed if The Varsity exercised reasonable care in cleaning. Robinson, supra.

1. In her first enumeration of error, Matthews contends that the trial court erred in granting summary judgment to The Varsity because Drayton, a Varsity employee, was in the vicinity of her fall. We disagree.

In this case, the evidence shows that Drayton was working 12 to 15 feet away from the place where Matthews fell and he actually saw the fall as it occurred. There is no evidence, however, that Drayton easily could have seen the foreign substance alleged to be on the stairs prior to Matthews’ fall. Indeed, Matthews, herself, contends that, even at close range, she could not see any liquid on the steps prior to her fall.

“Showing that an employee was merely working in the immediate area of a foreign substance is not enough; the employee must have been in a position to have easily seen the substance and removed it.” (Punctuation omitted.) Haskins v. Piggly Wiggly Southern. “Inasmuch as the purported hazard was not readily visible to [Matthews], she did not establish that [The Varsity’s] employee [who was 12 to 15 feet away] could have easily seen and removed it.” Id.

2. Matthews next contends that The Varsity had constructive knowledge of the foreign substance because it failed to employ reasonable inspection procedures.

Constructive knowledge may be inferred when there is evidence that the owner lacked a reasonable inspection procedure. In order to prevail at summary judgment based on lack of constructive knowledge, the owner must demonstrate not only that it had a reasonable inspection program in place, but that such program was actually carried out at the time of the incident.

Decided March 8, 2001.

Grant G. Morain, for appellant.

Swift, Currie, McGhee & Hiers, Lynn M. Roberson, for appellee.

Avery v. Cleveland Ave. Motel; see Ingles Markets v. Martin; Straughter v. J. H. Harvey Co.

Without regard to The Varsity’s written inspection procedures, on which Matthews relies in making her arguments, the evidence shows that a Varsity employee actually inspected the stairs on which Matthews slipped approximately five minutes before the fall. That employee saw no debris or liquid on the steps at that time.

In cases where a proprietor has shown that an inspection occurred within a brief period prior to an invitee’s fall, we have held that the inspection procedure was adequate as a matter of law. See, e.g., Deloach v. Food Lion (area where plaintiff fell was inspected ten minutes prior to fall, establishing reasonable care as a matter of law); Jenkins v. Bi-Lo (same); Super Discount Markets v. Clark (inspection occurred fifteen to twenty minutes prior to incident).

J. H. Harvey Co. v. Reddick.

Here, The Varsity presented evidence that the area in which Matthews slipped was free of debris only five minutes earlier. As such, her enumeration attacking The Varsity’s inspection procedures lacks merit.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

        Robinson v. Kroger Co., 268 Ga. 735, 736 (1) (493 SE2d 403) (1997).

        Haskins v. Piggly Wiggly Southern, 230 Ga. App. 350, 352 (496 SE2d 471) (1998).

        Avery v. Cleveland Ave. Motel, 239 Ga. App. 644, 645-646 (2) (521 SE2d 668) (1999).

        Ingles Markets v. Martin, 236 Ga. App. 810, 811 (513 SE2d 536) (1999).

        Straughter v. J. H. Harvey Co., 232 Ga. App. 29, 30 (1) (500 SE2d 353) (1998).

        Deloach v. Food Lion, 228 Ga. App. 393, 394-395 (491 SE2d 845) (1997).

        Jenkins v. Bi-Lo, 223 Ga. App. 735, 736-737 (479 SE2d 14) (1996).

        Super Discount Markets v. Clark, 213 Ga. App. 132, 133 (443 SE2d 876) (1994).

        J. H. Harvey Co. v. Reddick, 240 Ga. App. 466, 471 (1) (b) (522 SE2d 749) (1999).


text:
    A01A0121.
    PALMER v. THE STATE.
    (546 SE2d 886)
   Blackburn, Chief Judge.

Following a jury trial, Brian Wayne Palmer appeals his conviction for child molestation, contending that the trial court erred by: (1) excluding statements from the victim’s diary which falsely accused other men of molestation; (2) charging the jury that the act of molestation could be committed in a manner different from that set forth in the indictment; (3) failing to instruct the jury with regard to prior false accusations; and (4) considering prejudicial material during sentencing without affording him appropriate notice. For the reasons set forth below, we affirm the conviction.

1. Palmer contends that the trial court improperly excluded statements made in the victim’s diary which falsely accused other men of molesting her. We disagree.

During the trial, portions of a diary kept by the victim were used by both the State and the defendant. The State offered excerpts to prove that Palmer molested the victim, and the defendant introduced passages which contained certain false accusations by the victim against men other than Palmer. The latter material was introduced after the trial court conducted a hearing to determine their falsity. On appeal, Palmer contends that there were additional passages in the diary, other than those allowed by the trial court, which should have also been introduced into evidence as false accusations.

Before admitting proof of a victim’s false allegation of sexual misconduct, the trial court must conduct a hearing, outside the presence of the jury, to determine whether a reasonable probability exists that the victim made a prior false accusation of sexual misconduct. “Reasonable probability” is defined as “a probability sufficient to undermine confidence in the outcome.” The defendant bears the burden of coming forward with evidence at the hearing. The trial court’s ruling will not be overturned absent an abuse of discretion. [Strickland v. State. ]

(Footnotes omitted.) Pittman v. State.

In this case, Palmer contends that the victim, in her diary, falsely accused K. B. of fondling and kissing her inappropriately in a swimming pool. When questioned, the victim confirmed that this had happened, and the State provided another witness who corroborated the victim, stating that, in the past, she had previously seen K. B. fondling the victim. To refute the accusation, the defendant called K. B., who denied the allegation. The defendant also called K. B.’s ex-girlfriend, who testified that she had never been present when K. B. and the victim were in the pool together, and the victim’s mother, who testified that she did not think that she was present on the day the alleged incident between K. B. and the victim took place.

Based on this evidence, Palmer failed to shoulder his burden of showing that the victim’s accusation against K. B. had a reasonable probability of being false. In essence, Palmer offered only K. B.’s denial of the alleged acts of molestation, and this denial was undermined by the State’s witnesses. Accordingly, the trial court did not abuse its discretion by excluding the victim’s diary entry regarding K. B. Kelley v. State.

Palmer also contends that the victim, in her diary, falsely accused M. W. of attempting to have sexual intercourse with her. The State, again, offered testimony from the victim that this event indeed happened. The defendant, in rebuttal, offered the testimony of M. W., who confirmed that he did, in fact, attempt to have intercourse with the victim. The only inconsistency between the testimony of the victim and M. W. was that the victim believed that M. W. had inserted the head of his penis into her vagina and M. W. testified that he had not. M. W. admitted the attempt at intercourse, however.

Based on this evidence, Palmer failed to show that the victim’s accusation against M. W. bore a reasonable probability of falsity, and the trial court did not abuse its discretion by excluding admission of this material into evidence as a prior false accusation. Ney v. State 2. Palmer contends that the trial court erred by instructing the jury that the act of molestation could be committed in a way other than that set forth in the indictment. Again, we disagree.

Palmer was indicted for

performing] an immoral and indecent act to and with [J. B.], a child under the age of 16 years, to wit: the said accused did kiss the said child on her mouth and did engage in sexual intercourse with the said child with intent to arouse and satisfy his sexual desires and that of the said child.

During its deliberations, the jury sent a note to the judge, which stated: “According to the indictment, the child molestation charge must include sexual intercourse. Do we understand this charge correctly?” The trial court responded, “No — the indictment allows you to consider kissing as the primary act or sexual intercourse as the primary act or both or either standing alone.” Palmer argues that this response was erroneous, contending that the indictment required the State to prove both that Palmer kissed and had sexual intercourse with the victim.

However,
[w]hen an indictment charges a crime was committed in more than one way, proof that it was committed in one of the separate ways or methods alleged in the indictment makes a prima facie case for jury determination as to guilt or innocence. It is sufficient for the State to show that a crime was committed in any one of the separate ways listed in the indictment, even if the indictment uses the conjunctive rather than disjunctive form.

(Citation and punctuation omitted.) Cronan v. State.

Accordingly, the trial court in this case appropriately instructed the jury that it could convict Palmer of child molestation if it found that he either inappropriately kissed or had sexual intercourse with the victim.

3. Palmer contends that the trial court erred by denying his request to charge the jury with regard to the use and evidentiary value of the prior false accusations of the victim which were admitted into evidence.

In order for the trial court’s failure to give a requested instruction to constitute reversible error, the refused request must be a correct statement of law that is pertinent and material to an issue in the case and not substantially covered by the charge actually given. The record in the instant case does not contain a copy of any timely filed request to instruct on [prior false accusations]. Accordingly, the requisite preliminary determination as to the legal accuracy of appellant’s refused request cannot be made. However, even assuming that the refused request was an accurate statement of the law, the trial court’s failure to have given it was not reversible error. The trial court’s charge, as actually given, was full and fair and substantially covered all the legal principles relevant to the determination of appellant’s guilt.

(Citations and punctuation omitted.) Walton v. State.

Decided March 8, 2001.

Michael E. Bergin, for appellant.

Alan A. Cook, District Attorney, for appellee.

4. Finally, Palmer contends that, during his sentencing hearing, the trial court improperly considered evidence of a simple battery committed in 1994, a prior juvenile charge, and a certain victim impact statement, all of which were contained in a presentence investigative report.

Both parties to this appeal agree that the standard set forth in Munsford v. State is applicable here.

If a pre-sentence report contains any matter adverse to the defendant and likely to influence the decision to suspend or probate the sentence, it should be revealed to defense counsel by the trial judge in advance of the pre-sentence hearing. [Id.] . . . Although a presentencing report cannot be used in aggravation in determining sentence, where the transcript does not affirmatively show that the trial court used the presentence reports for the unlawful purpose of increasing the sentence, rather than for the lawful purpose of determining whether to grant probation, no cause for reversal is shown.

(Citations and punctuation omitted.) Green v. State

In this case, there is no evidence that the information contained in the presentence investigative report caused the trial court to increase the length of sentence it would have otherwise given. To the contrary, at the end of the sentencing hearing, the trial court stated that the sentence that it handed down was, in fact, more lenient than the sentence that he had originally wanted to give Palmer. As such, we find no error.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        Strickland v. State, 205 Ga. App. 473, 474 (422 SE2d 312) (1992).

        Pittman v. State, 243 Ga. App. 564, 566 (2) (b) (533 SE2d 769) (2000).

        Kelley v. State, 233 Ga. App. 244 (503 SE2d 881) (1998).

        Ney v. State, 227 Ga. App. 496 (489 SE2d 509) (1998).

        Cronan v. State, 236 Ga. App. 374, 377-378 (3) (511 SE2d 899) (1999).

        Walton v. State, 272 Ga. 73, 75 (4) (526 SE2d 333) (2000).

        Munsford v. State, 235 Ga. 38, 44-46 (218 SE2d 792) (1975).

        Green v. State, 193 Ga. App. 464 (388 SE2d 57) (1989).


text:
    A01A0305.
    CITY OF ATLANTA v. SHAFER et al.
    (546 SE2d 565)
   Blackburn, Chief Judge.

In this declaratory judgment action, the City of Atlanta appeals the trial court’s ruling that the annual salaries of City of Atlanta Traffic Court judges must be increased contemporaneously with the salaries of Fulton County State Court judges. For the reasons set forth below, we affirm.

The record shows that the salaries of Fulton County State Court judges were increased from $111,034 to $117,415 on July 1,1999, and, on October 1,1999, the salaries were increased again to $120,106. The City of Atlanta, however, did not contemporaneously raise the salaries of its traffic court judges, contending that it was not required to fix salaries until its new annual budget was submitted and approved in March 2000. The traffic court judges, on the other hand, contended that Georgia law required that their raises be made effective as of the date of the raises for the Fulton County State Court judges, and they filed a declaratory judgment action requesting a finding as such. In this action, the traffic court judges also contended that, because their raises should have accrued at the same time as the Fulton County State Court judges, pension benefits resulting from such payments should have accrued at the same time as well. The trial court agreed with the arguments of the traffic court judges, and the City of Atlanta appeals.

Georgia law regarding the makeup of traffic courts provides:

The annual salaries of the chief judge and each judge shall be fixed by the governing authority of each city. However, the annual salaries of the chief judge and judges shall be no less than 90 percent of the annual salaries of the judges of the state court within the territorial jurisdiction of said court.

There is no controversy in this case over the fact that, in accordance with Georgia law, the traffic court judges are entitled to a raise as a direct result of the salary raise for the state court judges. The only question concerns the timing of that raise. We find that the raises must be contemporaneous.

When construing a statute, “a court must first look to the literal meaning of the act, and if the language is plain and does not lead to absurd or impractical consequences, the court has no authority to place a different construction upon it but must construe it according to its terms.” Dept. of Revenue v. Sledge.

Georgia law clearly mandates that “the annual salaries of the [traffic court] judges shall he no less than 90 percent of the annual salaries of the judges of the state court.” (Emphasis supplied.) Ga. L. 1996, pp. 627, 629, § 4 (d). As drafted, this law creates an absolute minimum salary for the traffic court judges at any given time, and it does not extend the City of Atlanta any discretion in altering its directive. Accordingly, the City of Atlanta was required to raise the salaries of its traffic court judges contemporaneously with its state court judges. And, because the raises for traffic court judges must be made contemporaneously with state court judges, pension benefits resulting from such payments must also be considered to accrue contemporaneously at the time the raise should have become effective, not at some later date after the change of the fiscal year.

If the City of Atlanta were allowed to wait until it fixed its annual budget to raise the salaries of the traffic court judges sometime after raises were given to the state court judges, the absolute mandate of the law applicable to this case would be ignored. For example, if the state court judges’ salaries were raised on the day after the City of Atlanta fixed its annual budget, the city, under its proposed scheme, would not have to raise the salaries of its traffic court judges for almost an entire year. The result, in practice, would be that the salaries of the traffic court judges would not be 90 percent of the state court judges for the year in question, in direct opposition to Georgia law.

Nevertheless, the City of Atlanta argues that it is prevented by its charter from increasing the salaries of the traffic court judges. Section 6-310 of the Charter of the City of Atlanta states:

The governing body shall not increase the salaries or other remuneration in any form of any officer or employee of the city during the fiscal year except by ordinance as finally adopted and approved on or before the last day of the third month of any fiscal year; however, normal salary increments as authorized by the city’s pay plan and reclassifications may be provided for, salaries for new offices or positions may be fixed, salaries may be reduced [by] economic conditions, or positions may be abolished.

Assuming that the city is correct that this provision would otherwise prohibit the salary raises mandated in this case, the outcome here does not change. As a general matter, powers which the legislature sets out in city charters “are subject to limitations and preemptions imposed by general law.” Peacock v. Ga. Municipal Assn. Therefore, the general law in this case which absolutely mandates that the traffic court judges receive certain minimum annual salaries overrides the city’s Charter.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

Decided March 8, 2001.

Susan P. Langford, Bernard R. Thomas, Sr., Debra A. Alford, for appellant.

McKenney & Froelich, William J. McKenney, for appellees.

       Ga. L. 1996, pp. 627, 629, § 4 (d).

        Dept. of Revenue v. Sledge, 241 Ga. App. 833-834 (1) (528 SE2d 260) (2000).

        Peacock v. Ga. Municipal Assn., 247 Ga. 740, 742 (2) (279 SE2d 434) (1981).


text:
    A01A0553.
    HYMAN v. THE STATE.
    (546 SE2d 881)
   Blackburn, Chief Judge.

Algernon Hyman contends that his resentencing for the crime of making a false statement was harsher than his original sentence and presumptively vindictive in violation of North Carolina v. Pearce. For the reasons set forth below, we affirm.

Following a jury trial, Hyman was convicted of making a false statement and felony murder on May 4, 1999. The trial court then merged the two counts and sentenced Hyman to life imprisonment. Our Supreme Court subsequently granted certiorari on Hyman’s case, affirmed his conviction for making a false statement, and reversed his conviction for felony murder. As a result of this reversal, the trial court resentenced Hyman to five years of imprisonment for making a false statement and ordered that this sentence would be served consecutively to an earlier sentence imposed upon Hyman for another prior crime. Hyman contends that the second sentence violated the standard set forth in Pearce.

Pearce promotes the idea that vindictiveness against a defendant for successfully attacking his first conviction must play no part in his resentencing, so an increased sentence on resentencing raises a presumption of vindictiveness. This so-called presumption of vindictiveness, however, refers to resentencing which actually penalizes a defendant for appealing his sentence. . . . The reason a factual basis for increased sentencing is required is to allow the constitutional legitimacy of an enhanced sentence to be assessed on appeal.

(Citations omitted.) Duffey v. State.

The initial inquiry in this analysis, therefore, must be a determination of whether the defendant actually received an increased sentence for the same crime on resentencing. Here, Hyman was initially sentenced for felony murder, into which the crime of making a false statement was merged. No separate sentence was imposed for making a false statement at that time. Subsequently, after our Supreme Court reversed the felony murder conviction, Hyman was sentenced for the separate and distinct crime of making a false statement for the first time. As such, we do not have two separate sentences for the crime of making a false statement to compare, and Pearce is simply not applicable to the facts of this case.

Decided March 8, 2001.

L. Clark Landrum, for appellant.

C. Paul Bowden, District Attorney, Bradford L. Rigby, Assistant District Attorney, for appellee.

Accordingly, Hyman’s appeal based on the holding of Pearce is meritless, and his sentence is affirmed.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        North Carolina v. Pearce, 395 U. S. 711 (89 SC 2072, 23 LE2d 656) (1969).

        Duffey v. State, 222 Ga. App. 802, 804 (3) (476 SE2d 89) (1996).


text:
    A01A0606.
    In the Interest of R. W. et al., children.
    (546 SE2d 882)
   Blackburn, Chief Judge.

Appellant, the biological mother of R. W, Bt. W, and Bd. W, appeals the juvenile court’s termination of her parental rights, contending that: (1) the evidence was insufficient to support the termination; (2) the trial court erred by considering appellant’s lack of monetary support as one of the grounds for termination; and (3) the trial court improperly placed the children with the Department of Family & Children Services for adoption without considering placement with a family member. For the reasons set forth below, we affirm.

1. Appellant first contends that the evidence was insufficient to support the juvenile court’s termination of her rights. On appeal, we must determine

whether, after reviewing the evidence in a light most favorable to the lower court’s judgments, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s fact-finding and affirm unless the appellate standard is not met.

(Citations and punctuation omitted.)

In the Interest of R. N.

The record shows that, on July 28, 1994, the Juvenile Court of Houston County found the children to be deprived, which their mother admitted, and DFACS took the children into custody. The original deprivation petition was filed by DFACS after it learned that the children’s father had beaten five-month-old R. W. so severely that she had broken ribs and brain damage causing cerebral palsy. In addition, there was also some evidence that another one of the children had been physically abused by the father as well.

At the time that the children were found to be deprived, a case plan for reunification was developed for appellant. Among other things, this plan indicated that appellant needed to maintain contact with the children and learn to use nonharmful methods of discipline. In addition, appellant was required to undergo psychological testing to determine her ability to protect the children from further abuse.

The children remained in DFACS’ custody for the following five years while appellant attempted to satisfy the goals of her reunification case plan. DFACS, however, was never satisfied that appellant had developed the skills necessary to parent the children. Finally, DFACS petitioned for the termination of appellant’s rights, and, as of June 2, 1999, the juvenile court terminated appellant’s parental rights, finding that her mental retardation prevented her from properly caring for her children and that she had failed to provide for their maintenance and support.

Before terminating a parent’s rights, a juvenile court must employ a two-prong test. In the first prong, the court must decide whether there is “present clear and convincing evidence of parental misconduct or inability.” OCGA § [15-11-94] (a). Parental misconduct or inability, in turn, is proven by evidence showing: (1) that the child is deprived; (2) that lack of proper parental care or control is the cause of deprivation; (3) that the cause of deprivation is likely to continue or will not likely be remedied; and (4) that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § [15-11-94] (b) (4) (A). ... In the second prong of the termination test, the juvenile court must consider whether termination of parental rights would be in the best interest of the child.

In the Interest of V. S.

No issue remains as to whether the children in this case are deprived. The record contains prior orders of the juvenile court containing findings of deprivation, and, in the termination proceedings, the juvenile court took judicial notice of these orders. See In the Interest of J. L. Y. Moreover, appellant admitted that the children were deprived from the outset of this matter, and the record provides clear and convincing evidence that the children were given insufficient care and maintenance.

Nancy Moran, a DFACS caseworker, testified that the children have a number of behavioral problems. Moran further testified that she had to initiate a lot of visitations with the children, and appellant generally was unable to schedule the visits on her own and arrange for transportation. Although appellant did complete parenting classes, when she visited the children, they were unruly, and Moran felt that their safety could be in jeopardy. Appellant could not control the children’s behavior or adequately deal with their emotional problems.

At the hearing, appellant admitted that she no longer visited R. W., and she stated that she had no objection to R. W. being placed for adoption by DFACS. She also admitted that it took her three and one half years to complete the parenting class required by her case plan. Finally, appellant conceded that setting up visitation with the children was her responsibility, and the evidence showed that appellant had rarely visited her children for almost a year. And, although appellant contended that she had attempted to schedule visits, she failed to leave a current number with DFACS so that they could call her back.

This evidence supports the juvenile court’s determination that the children’s deprivation is likely to continue.

Although past deprivation is not sufficient for termination without a showing of present deprivation, the court can consider a parent’s past conduct in determining whether such conditions of deprivation are likely to continue. The court was entitled to infer from the evidence that, despite the best efforts of DFACS and many other social workers and charities, the same pattern of deprivation would continue [if! the children were reunited with their mother.

(Citation and punctuation omitted.) In the Interest of R. N., supra at 204 (1) (c).

The record also supports a finding that the children are likely to be harmed by the continued deprivation. As discussed above, Moran testified that, in appellant’s presence, the children acted wildly and their safety was at risk. The evidence showed that reuniting the children with appellant could be detrimental to them. Moreover, the evidence also indicates that the children’s behavioral problems have started to improve while in foster care.

Finally, the record supports a finding that termination of appellant’s parental rights is in the best interests of the children. The same factors which show a parent’s inability to properly care for her children may also prove that termination of her parental rights is in the best interests of the children. In the Interest of G. K. J. And, although appellant now pledges to be more attentive of the children’s needs, “the decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” (Punctuation omitted.) In the Interest of D. I. W.

2. Appellant next contends that the trial court erred by considering her failure to provide the children with monetary support as one of the grounds for termination. OCGA § 15-11-94 (b) (4) (C) provides:

[W]here the child is not in the custody of the parent who is the subject of the proceedings, in determining whether the child is without proper parental care and control, the court shall consider, without being limited to, whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: (i) [t]o develop and maintain a parental bond with the child in a meaningful, supportive manner; (ii) [t]o provide for the care and support of the child as required by law or judicial decree; and (iii) [t]o comply with a court ordered plan designed to reunite the child with the parent.

As discussed above, the evidence supports a finding that appellant failed to satisfy any one of these three requirements. Nevertheless, appellant argues that the trial court improperly considered her lack of monetary support for her children, arguing that a court had never issued an order requiring this support. A parent, however, has a statutory duty to support her children, with or without a court order. OCGA § 19-7-2. Appellant has inexcusably failed to live up to this duty, leaving DFACS to support her children for almost five years. The trial court did not err in considering this lack of care and support in ruling on this case.

Decided March 8, 2001.

Mark S. Martin, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, Walter G. Sammons, Jr., for appellee.

3. Finally, appellant contends that the trial court erred by placing the children directly with DFACS for adoption without first considering placement with a family member. OCGA § 15-11-103 (a) (1). Appellant, however, made no objection to placement in the court below, and she has thus waived her right to raise this argument for the first time on appeal. In the Interest of M. C.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

       The children’s father does not appeal the termination of his rights.

         In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997).

        In the Interest of V.S., 230 Ga. App. 26, 27 (495 SE2d 142) (1997).

        In the Interest of J. L. Y., 184 Ga. App. 254 (1) (361 SE2d 246) (1987).

        In the Interest of G. K. J., 187 Ga. App. 443, 444 (2) (370 SE2d 490) (1988).

        In the Interest of D. I. W., 215 Ga. App. 644, 646 (451 SE2d 804) (1994).

        In the Interest of M. C., 243 Ga. App. 707, 712 (2) (534 SE2d 442) (2000).