text:
    A94A1375.
    HUTCHINSON v. DIVORCE & CUSTODY LAW CENTER OF ARLINE KERMAN & ASSOCIATES, P. C. et al.
    (449 SE2d 866)
   McMurray, Presiding Judge.

This is the second appearance of Charlie Mae Hutchinson’s legal malpractice action against her former divorce attorney, Arline Kerman, and Ms. Kerman’s professional corporation, Divorce & Custody Law Center of Arline Kerman & Associates, P. C. The first appeal, Hutchison [sic] v. Divorce & Custody Law Center of Arline Kerman &c., 207 Ga. App. 421 (427 SE2d 784), involved reversal of an interlocutory order denying Ms. Hutchinson’s motion to dismiss Ms. Kerman’s premature claim for litigation expenses and attorney fees. This appeal followed an order dismissing Ms. Hutchinson’s complaint based on a finding “that the expert affidavit attached to [Ms. Hutchinson’s] Complaint as required by O.C.C.A. § 9-11-9.1 is insufficient as it fails to ‘set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.’

Attached to Ms. Hutchinson’s complaint is the affidavit of an attorney licensed to practice law in the State of Georgia. This attorney deposed that he is competent to testify as an expert for Ms. Hutchinson because of his long service as a military lawyer, his “vast experience in dealing with the legal issues involved in divorce cases which include military spouses,” his membership in the Domestic Relations & Military Law Section of the State Bar of Georgia and his experience in private practice representing military veterans and active-duty personnel. Ms. Hutchinson’s expert deposed that the complaint (prepared by Ms. Kerman in Hutchinson’s divorce action) indicates that Ms. Hutchinson is the former spouse of a retired military officer; that Ms. Hutchinson “had a substantial interest in her husband’s retirement pay and other benefits, including medical care and commissary privileges!; that Ms. Hutchinson] was entitled to [claim] and could have received directly from the Navy a check every month in an amount equal to up to half of her husband’s monthly retirement pay[;]” that the divorce petition prepared by Ms. Kerman claimed Ms. Hutchinson’s right to said military pension benefits, but that the parties’ settlement agreement (incorporated as part of final judgment and decree of divorce) did not contemplate Ms. Hutchinson’s right to said pension benefits. Ms. Hutchinson’s expert opined that this omission “was the result of inadvertence and neglect on the part of her attorneys, since there is nothing to indicate that Ms. Hutchinson knowingly and intelligently waived the substantial property rights which had been asserted in her petition for divorce.” This expert further deposed that “the economic value of said retirement benefits would have disclosed that, over the remainder of Ms. Hutchinson’s life, they would have been worth not less that $250,000[; that the] divorce decree does not show that Ms. Hutchinson received anything of equivalent value which might have formed the basis of an intelligent waiver of her substantial rights under USFSPA[; that it appears that Ms. Kerman] simply forgot about [Ms. Hutchinson’s interest in her former husband’s military pension benefits; that such] omission certainly failed to comport with the standards of the legal profession generally and in the Atlanta area in particular [; that] Attorney Kerman’s representation of [Ms. Hutchinson] fell below the standard of professional skill, care, diligence and performance to which all members of the State Bar of Georgia are held; and that her failure to adequately represent, preserve, protect and enforce her client’s substantial property rights under the Uniformed Services Former Spouse’s Protection Act constituted professional malpractice as a matter of law.” Held:

“In Bowen v. Adams, 203 Ga. App. 123-124 (416 SE2d 102), this court pertinently held: ‘Unlike OCGA § 9-11-56, which imposes an evidentiary requirement in the context of summary judgment on the merits, OCGA § 9-11-9.1 merely imposes an initial pleading requirement on the plaintiff in a malpractice action. (Cit.) Accordingly, an expert affidavit which would be insufficient to satisfy the evidentiary standards of OCGA § 9-11-56 may nevertheless be sufficient to satisfy the pleading standards of OCGA § 9-11-9.1. (Cit.) The sufficiency of the expert affidavit determines whether the complaint for malpractice “is subject to dismissal for failure to state a claim. .. .” OCGA § 9-11-9.1 (e). When the sufficiency of a plaintiff’s complaint to state a claim for relief is questioned by a motion to dismiss, it is to “be construed in the light most favorable to the plaintiff with all doubts resolved in his favor even though unfavorable constructions are possible. Not unless the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts should the complaint be dismissed.’ Likewise, ‘(a) Section 9-11-9.1 affidavit should be construed most favorably to the plaintiff and all doubts should be resolved in plaintiff’s favor, even if an unfavorable construction of the affidavit may be possible.’ Gadd [v. Wilson & Co., Engineers & Architects, 262 Ga. 234, 235 (416 SE2d 285)], citing Bowen [v. Adams, 203 Ga. App. 123, 124 (416 SE2d 102)]. ‘ “The purpose of OCGA § 9-11-9.1 is to reduce the number of frivolous malpractice suits being filed.” . . . Although an unfavorable construction of [the expert’s] affidavit [in the case sub judice] may be possible, construing it most favorably for [Ms. Hutchinson] and resolving all doubts in [her] favor, it constitutes an affirmation that [Ms. Hutchinson’s] complaint is not frivolous and that, if true, the allegations therein would authorize a recovery for an injury resulting from [legal] malpractice consisting of [the negligent omission specifically set forth in the expert’s affidavit, i.e., Ms. Kerman forgot to advise Ms. Hutchinson of (or even contemplate) certain rights Ms. Hutchinson had to her husband’s pension benefits before execution of the settlement agreement]. . . . [Ms. Hutchinson] cannot be required to submit an expert affidavit which unequivocally demonstrates the evidentiary merits of her claim unless and until [Ms. Kerman] moves for summary judgment and submits evidence demonstrating that [Ms. Hutchinson’s] claim lacks merit.’ (Emphasis supplied.) Bowen, supra at 124.

Decided October 6, 1994

Reconsideration denied October 24, 1994

Michael N. Mantegna, for appellant.

Barksdale & Mobley, M. Scott Barksdale, Steven J. Misner, Arline S. Kerman, for appellees.

“[In the case sub judice, ‘it] is clear that the expert affidavit attached to [Ms. Hutchinson’s] complaint meets [the] standard [of demonstrating Ms. Hutchinson’s legal malpractice claim is not frivolous]. An expert affidavit filed with a complaint pursuant to OCGA § 9-11-9.1 need not be based upon the affiant’s actual personal knowledge. To the contrary, the affiant may base his expert opinion upon an assumption that the factual allegations of the complaint are true (or upon an assumption that the factual allegations expressly recited in his affidavit and obtained from his attested personal examination of specifically identified . . . documents, whether or not such documents are attached to his affidavit, likewise are true), just as he could base his expert opinion at trial upon an assumption of the truth of the evidence adduced to support those allegations.’ Id. at 322.” Dozier v. Clayton County Hosp. Auth., 206 Ga. App. 62, 65 (4), 67 (424 SE2d 632).

Judgment reversed.

Pope, C. J., and Smith, J., concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A94A1456.
    DAVALOS v. PERDUE.
    (449 SE2d 861)
   Birdsong, Presiding Judge.

Pursuant to our grant of a discretionary appeal, Clara Ray Davalos appeals the judgment of the superior court reviewing by certiorari a decision of the magistrate court. The record shows that after Davalos was sued by Perdue in magistrate court for property damage incurred in an automobile accident, she answered and asserted a counterclaim for her own damages. The case was scheduled for trial, but upon Perdue’s request, the case was continued to February 18, 1993. According to a letter in the record, this date conflicted with Davalos’ unexpected proceedings in probate court on a matter concerning her husband’s estate. Rather than properly seeking a continuance, Davalos, pro se, sent a letter to Perdue on February 11, 1993, which the record shows was filed on February 16, 1993, advising him that she would be unable to attend the rescheduled hearing. The letter shows that copies were sent to the clerk of court and Perdue’s attorney. Although Davalos contends that she later testified that she called the office of Perdue’s attorney and was assured by his secretary that there would be no problem with the continuance, this is not reflected in the record because the proceedings were not transcribed and the magistrate’s answer to Davalos’ petition for certiorari asserted a lack of information upon which to admit or deny this assertion.

Nevertheless, the hearing was not rescheduled and when Davalos did not appear, on February 18, 1993, the magistrate awarded Perdue the full amount of his claim even though his claim was unliquidated and he presented no evidence. Moreover, the magistrate admitted the allegations in Davalos’ petition for certiorari that the default judgment was entered based solely on defendant’s failure to appear because no evidence and no proof of damages were presented by Perdue. The magistrate also admitted that the judgment had no legal basis and was void, and that the magistrate did not adjudicate Davalos’ counterclaim. Perdue did not traverse the answer.

To further illustrate the confusion below, the record shows that on March 3, 1993, apparently relying on Davalos’ letter, the clerk of the magistrate court sent out a notice setting a trial for March 18, 1993, notwithstanding the earlier entry of the default judgment. Davalos, however, contends that she did not receive this notice.

Davalos contends she learned of the judgment against her when she received post-judgment interrogatories. The record shows she then attempted to set aside the default judgment, and when that was unavailing, she petitioned the superior court for a writ of certiorari.

Ultimately, the superior court found that Davalos did not secure a continuance of the hearing, that Perdue did not present evidence on his damages, and that Davalos’ counterclaim did not survive the default judgment on Perdue’s claim. The superior court then remanded the case to the magistrate court on the issue of damages, but did not set aside the writ of fieri facias that was based upon the default judgment.

Davalos contends the superior court erred by failing to declare the magistrate court judgment null and void, by ruling that her counterclaim had been adjudicated by the magistrate court, by refusing to void the writ of fieri facias issued pursuant to the magistrate court’s judgment, and by ruling that there had been no continuance of the magistrate court trial. Held:

In Green v. Green, 263 Ga. 551 (437 SE2d 457), our Supreme Court recently considered an appeal with somewhat similar facts. In Green, a pro se plaintiff did not appear for the trial of her case, and the trial court entered judgment for the defendant on his counterclaim. Although Green primarily concerned the pro se plaintiff’s failure to appear because of lack of actual notice of the trial date and this appeal concerns the failure of a pro se defendant to appear because she did not properly secure a continuance, the principles are the same. The plaintiff is entitled to have the defendant’s answer stricken and a default judgment entered when the defendant fails to appear at the hearing (OCGA § 15-10-43 (e) (1)), but this is the most extreme sanction available for the failure to appear. Thus, when the record before the court shows that a pro se party has requested a continuance, albeit improperly, because of a conflict with another court appearance, the failure of the pro se party to appear for trial is not a sufficient basis to warrant granting a default judgment. See Green, supra at 553. “That spirit of cooperation and civility, when taken together with the notions of fundamental fairness that lie at the heart of the principle of due process of law, requires that attorneys, as officers of the court, make a good faith effort to ensure that all parties to a controversy have a full and fair opportunity to be heard.” Id. at 554-555. Whether to enter a default judgment under these circumstances should be based upon all the circumstances and not just the parties’ failure to appear. See Spyropoulos v. John Linard Estate, 243 Ga. 518, 519 (255 SE2d 40). Accordingly, given the fact that Davalos’ technically inchoate request for a continuance was in the record, absent other considerations not appearing here the proper exercise of the magistrate’s discretion required that the judgment should be set aside. OCGA § 15-10-43 (g). Further, “[a]ll rules and regulations relating to pleading, practice, and procedure shall be liberally construed so as to administer justice.” OCGA § 15-10-44 (b). “Pro se pleadings are held to less stringent standards than pleadings that are drafted by lawyers.” Thompson v. Long, 201 Ga. App. 480, 481 (1) (411 SE2d 322). Therefore, we find that the superior court erred by not setting aside the default judgment against Davalos. Green, supra at 555. This is not a case where a pro se party has engaged in dilatory trial tactics. Justice would be ill served in finding that Davalos’ letter (which was duly filed and in fact in the magistrate’s possession) was not in substance a legitimate request for continuance, and it is not asserted that Davalos did not in fact have a conflicting court appearance in another unrelated judicial proceeding. In this regard, we find that setting aside the default judgment is warranted since the case was remanded for a hearing in any event.

The judgment of the superior court is reversed and remanded so that the case may be remanded to the magistrate court for proceedings in accordance with this opinion.

Decided September 21, 1994

Reconsideration denied October 24, 1994

Gary C. Harris, for appellant.

David C. Jones, Jr., for appellee.

Judgment reversed and remanded.

Blackburn and Ruffin, JJ., concur.


author: Blackburn, Judge.

text:
    A94A2036.
    CENTEX-RODGERS CONSTRUCTION COMPANY v. CITY OF ROSWELL. CENTEX-RODGERS CONSTRUCTION COMPANY v. McCANN STEEL COMPANY, INC.
    A94A2037.
    (449 SE2d 631)
   Blackburn, Judge.

Centex-Rodgers Construction Company appeals the trial court’s orders which confirmed the arbitration award and denied CentexRodgers’ motion to compel further arbitration. Virtually the same order was entered in both Centex-Rodgers’ action against McCann Steel Company, Inc. (Centex-Rodgers’ action) and the City of Roswell’s action against Centex-Rodgers (Roswell’s action). We have combined the two cases on appeal.

The underlying actions arose out of the construction of the Roswell Municipal Complex. Centex-Rodgers contracted to Roswell as the general contractor, McCann contracted to Centex-Rodgers as the subcontractor for the structural steel work, and Roswell was the owner of the project. Centex-Rodgers sued McCann for delay damages caused by problems with the steel erection, and McCann counterclaimed for delay damages and additional costs related to defective plans prepared by Roswell’s architects. Upon McCann’s motion to enforce its subcontract, the trial court ordered Centex-Rodgers to “file the Demand for Arbitration of Centex-Rodgers Construction Company for the use and benefit of McCann Steel Company, Inc. against the City of Roswell (hereinafter referred to as the February 28, 1992 order).” The trial court further required that Centex-Rodgers “in good faith, assist McCann Steel’s presentation of its ‘pass-thru’ claims against the City of Roswell in a fair and serious manner.” In complianee with the court’s order, Centex-Rodgers filed a demand for arbitration against Roswell for the use and benefit of McCann.

Almost a full year prior to the February 28, 1992 order, CentexRodgers filed a demand for arbitration against Roswell. This demand included claims on its own behalf, as well as on behalf of a number of its subcontractors, not including McCann Steel. The demand did not include a claim by Centex-Rodgers for delay damages against Roswell. On December 6, 1991, the arbitration panel awarded damages to Centex-Rodgers and three of its subcontractors. Roswell paid the award.

Upon Centex-Rodgers’ compliance with the trial court’s February 28, 1992 order, Roswell filed its action seeking to enjoin a second arbitration with Centex-Rodgers regarding the same construction project. By order dated September 24, 1992, the trial court granted CentexRodgers’ motion to compel arbitration, and specifically required that all remaining issues between Centex-Rodgers and Roswell be arbitrated, including Roswell’s waiver claims.

Despite this order, Centex-Rodgers failed to file any claims in the pending arbitration. The arbitrator determined that Centex-Rodgers had not waived its right to arbitration, and that the arbitration regarding the claim for extra work and delay was to proceed. The arbitrator entered a consent award on September 21, 1993, adopting the settlement agreement of McCann and Roswell, which provided that Roswell pay McCann $80,000, and that Roswell issue to Centex-Rodgers for the use and benefit of McCann, a time extension of 150 days on the completion date of the construction contract.

1. Pursuant to OCGA § 9-9-12, Roswell and McCann filed motions in their respective superior court actions to confirm the arbitrator’s award. Thereafter, Centex-Rodgers filed motions to compel further arbitration, contending that the settlement agreement between Roswell and McCann created a new cause of action for Centex-Rodgers. The trial court determined that Centex-Rodgers’ claims were barred by res judicata.

“A ‘cause of action’ is generally referred to as the right to sue for a thing done or omitted to be done which causes a grievance for which the law gives a remedy. The ‘cause’ is the right of the party to bring the suit, and the ‘action’ is the means of enforcing the right. In Georgia, ‘cause of action’ has been defined as ‘all the facts which together constitute the plaintiff’s right to maintain the action.’ ” (Citations and emphasis omitted.) Winters v. Pund, 179 Ga. App. 349, 352 (346 SE2d 124) (1986). In the present case, all the facts constituting any cause of action for Centex-Rodgers’ delay damages against Roswell and McCann existed, at the latest, by the completion of the construction of the Roswell Municipal Complex. Centex-Rodgers seeks to use the settlement agreement entered into between Roswell and McCann, to establish Roswell’s liability for delay damages. However, an admission of liability does not create a cause of action, at most, it concludes a cause of action.

“A plaintiff who has a cause of action is not permitted to split his single cause to seek, in successive litigation, enforcement of first one remedy and then a second. [Cits.]” Id. Centex-Rodgers’ actions in failing to comply with the trial court’s September 24, 1992 order, by not filing its delay claim against Roswell, precludes it from now attempting to bring it. Centex-Rodgers recognized this outcome during the hearing in the trial court to confirm the arbitration award when responding to the court’s question as to why Centex-Rodgers had not filed a delay claim against Roswell in the arbitration. Centex-Rodgers stated, “any right that we had at that time I think would have been greeted with, you have waived it, you have signed off on it, you have arbitrated with us previously in our own right, and procedurally we would have been barred at that point in time.” Unfortunately for Centex-Rodgers, Roswell’s settlement with McCann does not magically create a new claim. Therefore, the trial court was correct in denying Centex-Rodgers’ motion to compel further arbitration against Roswell.

2. Next, we must determine the effect of the arbitration award on Centex-Rodgers’ claim for delay damages against McCann. McCann contends, and the trial court agreed, that the consent judgment granting McCann a 150-day extension was res judicata as to Centex-Rodgers’ claims against McCann. Centex-Rodgers maintains that as it was not a “real” party to the arbitration, but merely involved “for the use and benefit of McCann,” the consent judgment should not affect its rights. Although Centex-Rodgers was given the opportunity to object to the proposed settlement at the arbitration hearing, Centex-Rodgers merely asserted that the settlement was not binding on Centex-Rodgers. However, as we determined in Division 1, Centex-Rodgers was ordered to participate in the arbitration as a party. Centex-Rodgers chose to disregard the court’s order, to its peril. The trial court correctly determined that the arbitration award was binding on Centex-Rodgers.

Decided October 5, 1994

Reconsideration denied October 24, 1994

Bach & Hulsey, John C. Bach, Robert J. Hulsey, for appellant.

Kenneth G. Menendez, Smith & Fleming, Kent P. Smith, David A. Rutherford, for appellees.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

       The Centex-Rodgers’ action was previously before this court on an unrelated issue. See Centex-Rodgers Constr. Co. v. McCann Steel Co., 206 Ga. App. 827 (426 SE2d 596) (1992).

       The trial court’s order required that “[a]ll issues that remain and exist between Centex-Rodgers and Roswell arising out of the construction of the Roswell Municipal Complex . . . including issues as to whether Centex-Rodgers’ conduct constituted a waiver or release, accord and satisfaction or gave rise to any other defense which would terminate Centex-Rodgers’ rights under the construction contract, as well as those issues ordered to be the subject of arbitration in [the trial court’s February 28, 1992 order in Centex-Rodgers’ action], and issues raised by Centex-Rodgers’ counterclaim in [Roswell’s action] shall be arbitrated in American Arbitration Association Case No. 30 110 0006392, styled Centex-Rodgers Construction Company for the use and benefit of McCann Steel, Inc. v. The City of Roswell.”


text:
    A94A2056.
    WARNKE v. PACE MEMBERSHIP WAREHOUSE, INC.
    (449 SE2d 629)
   Blackburn, Judge.

This is an appeal from the grant of a motion for summary judgment in favor of appellee Pace Membership Warehouse, Inc. (Pace), in an action for damages for injuries appellant Anne Mae Warnke received in a fall on Pace’s premises.

The record viewed in the light most favorable to Warnke, the nonmovant, shows that on the morning of December 21, 1990, Warnke and her son went to Pace for the purpose of purchasing tires for her automobile. Upon their arrival, they discovered that the tire center was closed, and proceeded to the main store which was open. The weather on that morning was drizzly and foggy and the sky was overcast. The weather conditions made it difficult for Warnke to distinguish between the asphalt driveway and the concrete curb and the sidewalk leading to the front entrance to the main store. Warnke had been to the store before, but she had never been to the tire center or approached the store from the entrance of the tire center.

Although visibility was obscured because of the weather conditions, she proceeded toward the sidewalk and tripped and fell as her foot hit the edge of the curb, sustaining serious injuries to her arm and hip which required surgery. She deposed that prior to the fall, she noticed that she was approaching a sidewalk and she had been looking ahead and down in front of her. Warnke’s expert deposed that the curb height was slightly below a normal curb height, and because of this height differential and the fact that it involved a single step, it was inherently dangerous.

The dangerous condition which resulted in plaintiff’s injuries arose from the reduced visibility created by the fog, of which plaintiff was aware, in combination with the sidewalk which was in fact seen by plaintiff prior to her fall. Fog is a natural weather condition, the hazards of which are understood by all, and inasmuch as plaintiff had actual knowledge of the presence of the curb, there can be no superior knowledge on the part of the proprietor and hence no liability. Gaydos v. Grupe Real Estate Investors, 211 Ga. App. 811 (440 SE2d 545) (1994).

Decided October 5, 1994

Reconsideration denied October 24, 1994.

Charles S. Hunter, for appellant.

“In order for plaintiff to recover, two elements must exist: (1) fault on the part of the owner, and (2) ignorance of the danger on the part of the invitee[.] The basis of the proprietor’s liability is his superior knowledge, and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of his knowledge, assumes the risks and dangers incident to the known condition. Under the conditions here set out, a person acting in the exercise of ordinary care for his own safety should have been aware that such a hazard to walking [up onto a curbed sidewalk] would be likely to exist, and should have accordingly exercised ordinary care to avoid it. Her means of knowledge being equal with that of [Pace], it follows that she has failed to show a right of recovery based upon the acts of negligence alleged.” (Citations and punctuation omitted.) Folks, Inc. v. Dobbs, 181 Ga. App. 311, 312 (1) (352 SE2d 212) (1986).

The expert witness’ testimony did not create a question of fact so as to preclude summary judgment where the conclusion drawn by the expert is not one which is beyond the ken of the average layman. See Sullivan v. Quisc, Inc., 207 Ga. App. 114 (427 SE2d 86) (1993). “[T]he ultimate issue is whether [Pace] was negligent in maintaining a hazardous condition on the property [and] [i]n everyday life, persons are required to negotiate floors, steps and doorways.” Id. at 115. Even if the curbed sidewalk was hazardous as Warnke asserts, the condition was open and obvious, and thus, in the exercise of ordinary care, she could have avoided it. See Sullivan, supra. There is no duty to warn of the obvious. Id. In addition, Warnke, having as much knowledge as Pace, assumed the risks and dangers of negotiating a curbed sidewalk which she could not clearly see because of the weather conditions. See Folks, supra. Ordinarily, issues of negligence, including assumption of the risk, require jury resolution. However, where the facts are plain as in this case, summary adjudication as a matter of law is proper. Id. Consequently, the trial court did not err in granting summary judgment in favor of Pace.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

F. Earl Wiggers, Jr., Florence M. Hackman, for appellee.


author: Smith, Judge.

text:
    A94A1188.
    HOLLIS v. THE STATE.
    (450 SE2d 247)
   Smith, Judge.

Robert Lee Hollis was tried and found guilty by a jury of two counts of child molestation, one count of aggravated child molestation, three counts of solicitation of sodomy, three counts of contributing to the unruliness of a minor, and ten counts of exhibiting harmful materials to minors. His motion for new trial was denied, and he appeals.

1. Hollis relied on an insanity defense at trial. Accordingly, the jury was instructed as to possible verdicts of not guilty, not guilty by reason of insanity, guilty, and guilty but mentally ill on the felony counts. See OCGA § 17-7-131 (b) (1). After verdicts of guilty were returned on all counts, Hollis filed a motion “to amend the verdict to reflect the evidence of guilty but mentally ill.” In support of his motion, Hollis pointed out that there was consensus among the psychiatrists called by the State and the defense that he “has severe psychiatric problems regardless of his ability to distinguish right from wrong,” that the jury’s failure to find Hollis guilty but mentally ill may have been purely punitive in nature, and also that adjusting the verdict to reflect the evidence was not only in his own best interest, but also in the best interest of society as a whole. Hollis enumerates the trial court’s denial of this motion as error.

A verdict of guilty but mentally ill is substantively indistinguishable from any other guilty verdict with respect to the convicted person’s culpability and the punishment to be imposed; such a verdict merely triggers certain procedures designed to address the convicted person’s mental illness to the extent of available resources. OCGA § 17-7-131 (g) (1); Logan v. State, 256 Ga. 664, 665 (352 SE2d 567) (1987). A defendant has a statutory right to have the jury consider such a verdict as an alternative to a simple verdict of guilty. OCGA § 17-7-131 (c) (2); see generally Spraggins v. State, 258 Ga. 32 (364 SE2d 861) (1988). OCGA § 17-7-131 (c) (2) has been interpreted as requiring a finding of mental illness beyond a reasonable doubt before a verdict of guilty but mentally ill is authorized. Spivey v. State, 253 Ga. 187, 188-189 (2) (319 SE2d 420) (1984); but see Keener v. State, 254 Ga. 699, 702 (2) (334 SE2d 175) (1985); see also Mitchell v. State, 187 Ga. App. 40, 45 (7) (369 SE2d 487) (1988).

Hollis relied on OCGA § 17-9-40 in support of his motion, which provides that “[a] verdict may be amended in mere matter of form after the jury have dispersed; but . . . may not be amended in matter of substance, either by what the jurors say they intended to find or otherwise.” He theorized that “guilty but mentally ill” is not a substantive change in the verdict but merely a change in form which would correctly address his situation.

We agree with Hollis that changing the verdict in this fashion would not affect his sentence. Logan, supra. However, the question under OCGA § 17-9-40 is not whether a proposed amendment to the verdict would effect sentencing, but rather whether such an amendment would effect a substantive change in that verdict. As the trial court observed from the bench, “[Hollis’s motion] would absolutely change the jury’s verdict. They were given that option and they absolutely rejected it.” Although there may be some arguable merit in giving the trial court discretion to invoke the procedure outlined in OCGA § 17-7-131 (g) notwithstanding the jury’s verdict in an appropriate case, altering the substance of the jury’s verdict is not an appropriate means of achieving that end. Hollis’s motion to amend the verdict to reflect a finding of guilty but mentally ill was properly denied.

2. Hollis, through new counsel, argues that he received ineffective assistance of counsel due to the late filing of a motion to suppress certain items taken from his home that were not listed in the State’s search warrant. See USCR 31.1. The opportunity lost by the failure to timely file the motion in question was the opportunity to argue for the suppression of the evidence as illegally seized under OCGA § 17-5-30. Hollis does not argue on appeal that the evidence was in fact illegally seized, but instead argues that the items in question bore no relation to the charges or issues addressed at trial and were otherwise unfairly prejudicial. Hollis likewise does not suggest that it was incumbent upon his trial counsel to challenge the relevance of the evidence by written motion prior to his arraignment. The trial court emphasized that it “would obviously not admit anything other than what was admissible” notwithstanding the late filing. “The burden is upon appellant to show affirmatively not only error but that it was harmful. [Cit.]” Brinson v. State, 191 Ga. App. 151, 154 (5) (381 SE2d 292) (1989). Since Hollis totally fails to show that evidence would have been excluded at trial on any proper ground but for the failure of trial counsel to file a timely motion to suppress, we find no merit in this enumeration.

3. Hollis objects generally to the admission of “hundreds of pieces of documentary evidence” taken from his home pursuant to the search warrant referenced in Division 2. Relying on Roose v. State, 182 Ga. App. 748, 749 (1) (356 SE2d 675) (1987), Hollis essentially contends that since his state of mind was not at issue, this evidence should have been omitted. We disagree. Hollis’s state of mind was at issue in this case due to the nature of Hollis’s sole defense of insanity, and the materials in question clearly tended to rebut that defense. See generally Blake v. State, 239 Ga. 292, 295 (1) (236 SE2d 637) (1977). The evidence, taken as a whole, tended to show Hollis’s bent of mind toward the commission of the crimes charged and his lustful disposition generally, especially toward children. See Helton v. State, 206 Ga. App. 215, 216-217 (424 SE2d 806) (1992). The trial court did not err in allowing the State to introduce the “hundreds of pieces of documentary evidence” to which Hollis very generally refers.

4. Hollis contends the trial court erred in restricting testimony regarding the defendant’s mental state prior to the time period in which the incidents at issue took place. He claims his defense depended on counsel’s ability to make its case regarding the recent onset of his “debilitating” mental illness. However, the witness in question specifically stated she did not observe the changes that defense counsel hoped to establish. The trial court ruled it was permissible to have the witness testify regarding any change she might have seen in Hollis’s character during the period in question, but not regarding what Hollis’s character might have been “ten years ago” “or even six months.” The court added that “if she is going to say that he was normal up to a particular point, then that’s not an issue,” reasoning that “the issue for this jury is whether or not he ha[d] criminal responsibility at the time of the acts in question.”

Citing Chambers v. Mississippi, 410 U. S. 284 (93 SC 1038, 35 LE2d 297) (1973), Hollis argues that the ability of a criminal defendant to present a defense is a hallowed and constitutionally protected right. “The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations. The rights to confront and cross-examine witnesses and to call witnesses in one’s own behalf have long been recognized as essential to due process.” Chambers at 294.

On the other hand, “this court is not an expounder of theoretical law, but it administers practical law, and corrects only such errors as have practically wronged the complaining party.” (Citations and punctuation omitted.) Stamey v. State, 194 Ga. App. 305, 309 (4) (390 SE2d 409) (1990). Hollis fails to persuade this court that the trial court’s ruling in any way infringed upon his ability to defend against any specific allegation made by the State. We therefore find no error.

5. As a defense to the charge of exhibiting harmful materials to a minor, Hollis endeavored to present the testimony of a defense witness to the effect that the materials viewed by the minors in question were not in fact harmful. “[T]he term . . . ‘[h]armful to minors’ means that quality of description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, when it: (A) Taken as a whole, predominently appeals to the prurient, shameful, or morbid interest of minors; (B) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and (C) Is, when taken as a whole, lacking in serious literary, artistic, political, or scientific value for minors.” OCGA § 16-12-102 (1). The question for the jury was not whether the materials in question are “harmful to minors” in some unstructured, theoretical sense, but rather whether they were harmful under the “prevailing standards in the adult community as a whole with respect to what is suitable material for minors.” Id. Therefore, whether a defense expert personally considers the materials to be harmful (and, by logical extension, whether the public generally might be misinformed regarding the impact of exhibiting sexually graphic materials to minors) is irrelevant under OCGA § 16-12-101 et seq. This enumeration is without merit.

6. Hollis argues that the court erred in making a comment to the jury that lessened its sense of responsibility for the verdict against him. We agree.

The State’s presentation of evidence with respect to the several counts of exhibiting harmful materials to minors included the viewing of certain sexually explicit videotapes. A recess was taken between viewings. Before the jury returned, the State suggested that the playing of yet another videotape would not add anything, and that its case had been made. Moreover, defense counsel expressed its willingness to stipulate that the videotape in question, entitled “Blacks and Blondes, Volume 39,” contained explicit sexual content. The trial court reluctantly but vocally disagreed, basing its opinion on the case of Hunter v. State, 257 Ga. 571, 573-574 (3) (361 SE2d 787) (1987). That case essentially held that a jury must view a film as a whole in determining whether it may “be adjudged obscene under [OCGA] § 16-12-103 (a) (1).” Id. at 573 (3). Before the jury was returned, the trial court made very clear its opinion of Hunter, which was far from favorable.

The jury was then brought in, and the court addressed the jurors as follows: “We try to expedite these thing[s]. We have one more film to watch in its entirety. It is about a half an hour, 30 minutes. We ought to be — that will be the end of the tapes. The good news is we probably have to do some things out of your presence, which is going to take an awfully long time, and we will probably let you go after you finish watching this movie for half an hour. That will be your reward. I appreciate your understanding. I appreciate your patience. As I said before — you can write the Supreme Court of Georgia and tell them what you think about their decision. I have already told them what I think, and they will get a chance to see this record.” (Emphasis supplied.)

The law to be applied to this issue, cited by neither Hollis nor the State, is quite clear. “The Supreme Court has repeatedly held references should not be made to the reviewing courts by court or counsel except to cite their decisions. [Cits.]” Floyd v. State, 135 Ga. App. 217, 218 (2) (217 SE2d 452) (1975). The jurors are presumed to be intelligent men and women who “could not escape the conclusion that the trial court was telling them that after the trial had ended, defendant and his counsel would be cast in the role of ‘excepting’ to what had taken place during the trial — in other words, that they would lose the case and defendant would be convicted.” Id. at 218-219 (2). Mere abstract references to the appellate courts are not necessarily reversible error, especially when they “[do] not convey or intimate any opinion of the trial judge nor lessen the sense of responsibility of the jurors,” but the comments by the trial court here do not fall into that category. (Citation omitted.) Bearden v. State, 159 Ga. App. 892, 893 (3) (285 SE2d 606) (1981).

Hollis, however, made no motion for mistrial or other objection below, and this enumeration therefore provides no basis for reversal. See generally Pulliam v. State, 196 Ga. 782, 789-791 (6) (28 SE2d 139) (1943) (overruling a contrary view as applied to the predecessor to current OCGA § 17-8-57). It is axiomatic that a defendant “ ‘cannot during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.’ [Cits.]” Scott v. State, 229 Ga. 541, 547 (6) (192 SE2d 367) (1972).

Decided October 24, 1994.

Elizabeth V. Rogan, for appellant.

J. Tom Morgan, District Attorney, Jeffrey H. Brickman, Gregory J. Lohmeier, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

       In Spivey, the Supreme Court was called upon to determine whether the trial court’s charge to the jury was unconstitutionally burden-shifting. The actual likelihood that the jury would interpret the charge complained of in that case as the defendant urged was apparently not considered. Instead, the Spivey court accepted the appellant’s interpretation of the charge as both accurate and in accord with OCGA § 17-7-131 (c) (2), and held that a requirement that a defendant prove that he is mentally ill beyond a reasonable doubt is not unconstitutionally burden-shifting.

       As interpreted in Hunter, it would appear that no matter how graphic, obviously inappropriate and potentially harmful certain footage might be under the prevailing standards of the adult community with respect to what is suitable to exhibit to minors, there remains a theoretical possibility that such footage could be rendered not harmful under the statute when placed in the context of the work when viewed as a whole. Hunter appears to engraft upon OCGA § 16-12-103 (a) (1) the requirement that the work as a whole be adjudged obscene rather than merely “harmful to minors” as defined in OCGA § 16-12-102 (1). Missing from the analysis in Hunter is the question whether the prevailing standards of the adult community are such that a single scene that is “patently offensive” within the meaning of OCGA § 16-12-102 (1) (B) may render the whole of the tape harmful to minors, regardless of any redeeming social value the work may have for adult viewers. Moreover, even if the defendant is willing to stipulate that a portion of a videotape is fairly representative of the film as a whole, the jury is apparently required under Hunter, presumably for the defendant’s own protection, to view the potentially inflammatory and offensive evidence in its entirety before the State can be said to have made its case.


author: Pope, Chief Judge.

text:
    A94A1493.
    ELLIS v. THE STATE.
    (449 SE2d 882)
   Pope, Chief Judge.

Defendant, Christopher K. Ellis, was convicted by a jury of armed robbery, aggravated assault, theft by taking and two counts of possession of a firearm during the commission of a crime. Defendant appeals his conviction and the denial of his motion for a new trial.

On August 23, 1993, Applebee’s Restaurant in Rome, Georgia, was robbed by two masked men. The robbery took place between 11:30 p.m. and 11:45 p.m., approximately the same time the restaurant’s employees began cleaning up the kitchen. Just prior to the robbery, one of the employees, James Oszust, went out the back door of the restaurant to clean some meat drawers. Oszust testified that as he walked out the back door he saw defendant, with a white mask on the top of his head, standing to the left of the door. He also testified that at that time he saw defendant’s face for approximately three seconds. According to Oszust, when defendant and the other masked man saw him, defendant pulled down his white mask and both defendant and the other masked man immediately entered the restaurant. Oszust testified that upon entering the restaurant defendant struck him in the head numerous times with a nickeled .38 caliber pistol.

Once inside the restaurant the two masked robbers confronted the restaurant’s manager, John Liner, and demanded he give them the money in the cash drawer and in the safe. Liner testified at trial that one of the robbers was waving around a silver-plated revolver. He also testified that one robber was wearing navy bluejean pants and a bluejean jacket and the other robber was wearing some sort of denim pants and a white long sleeve t-shirt. Additionally, Liner stated that one robber wore a white mask and the other a brown mask. During cross-examination Liner further testified that the robber wearing the white t-shirt wore the white mask and the robber clad in bluejean clothing wore the rust-colored mask. This testimony was further substantiated by that of another Applebee’s employee, Shawn Grey, who testified that the man wearing the white shirt also was wearing the white mask.

After taking approximately $2,500 from the cash drawer and safe, the robbers fled from the restaurant through the back entrance. Grey, who had run into the parking lot, observed the robber in the white t-shirt and white mask jump over a fence at the rear of the restaurant, landing in a cemetery adjacent to the restaurant. Grey further observed that the robber in the white shirt threw down his white mask upon landing in the cemetery. A white stocking mask was recovered from the cemetery within one hour of the robbery by Detective Arrington of the Rome City Police Department.

At the time of the robbery, Officer Bill Devlin of the Rome Police Department was working in uniform, off duty, at a nearby Burger King. Within a few minutes of hearing on his radio that a robbery was in progress at the restaurant, he and Kelly Flowers, a private detective, got into Flowers’ car and drove toward the restaurant. When they came into view of the cemetery behind the restaurant they saw defendant running from the cemetery toward a Toyota car lot. Defendant was dressed in tan pants and a long sleeve white shirt. Devlin and Flowers pursued defendant and subsequently apprehended him. Devlin and Flowers both testified at trial that when defendant was apprehended he was sweating profusely, as if having just had a good run. The record also shows that defendant was wearing at least two layers of clothing at the time of the arrest, even though it was a hot and humid night, and that defendant had two white nylon stockings, which appeared to be cut from a pair of pantyhose, in his front shirt pocket.

A show-up identification was conducted within approximately an hour of the robbery. The show-up took place in the parking lot of the Floyd Medical Center emergency room. Oszust had been taken there for treatment of the injuries he suffered during the robbery. The record shows that during the show-up Oszust was shown defendant and another suspect, both of whom were in the back seats of separate police cars. Although the show-up took place at night, testimony at trial shows that the parking lot was well lit and that the interior lights of the police cars were on. There is some contradictory testimony in the record as to the race of the other suspect, however, the record clearly shows that within a few seconds of seeing defendant’s face, Oszust identified defendant as the robber he had seen at the restaurant.

1. In his first enumeration defendant argues that the trial court erred in failing to grant defendant’s motion to exclude testimony concerning the pre-trial identification of defendant. Specifically, defendant argues that the show-up was impermissibly suggestive, creating a substantial likelihood of irreparable misidentification, and thus evidence regarding it should not have been presented to the jury.

“Determination of whether a challenged pretrial identification must be suppressed requires a two-step analysis: first, it must be determined whether the identification procedure was impermissibly suggestive. If the inquiry is answered in the affirmative, then it must be determined whether, under the totality of the circumstances, there was a substantial likelihood of irreparable misidentification, with ensuing harm. Payne v. State, 233 Ga. 294 (210 SE2d 775) (1974).” Morgan v. State, 197 Ga. App. 823, 824 (399 SE2d 578) (1990). “Although one-on-one show-ups have been sharply criticized, and are inherently suggestive, the identification need not be excluded as long as under all the circumstances the identification was reliable notwithstanding any suggestive procedure.” Jefferson v. State, 206 Ga. App. 544, 546 (425 SE2d 915) (1992). “[T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Neil v. Biggers, 409 U. S. 188, 199-200 (93 SC 375, 34 LE2d 401) (1972).

When we apply the guidelines set forth above to this case, we conclude that the trial court did not err in denying defendant’s motion. In this case, Oszust testified that he had received law enforcement training when he worked for a sheriff’s department prior to his employment at the restaurant. Additionally, Oszust testified that when he went out the back door of the restaurant defendant was in a well-lighted area and that Oszust saw defendant’s face for several seconds before defendant pulled down his mask. The record shows that within an hour of the robbery defendant was brought to the Floyd Medical Center for the show-up and that it took Oszust only a few seconds to positively identify defendant as the robber he saw. During a preliminary hearing that took place on September 29, 1993, the trial court specifically asked Oszust whether his identification of defendant at the hearing was based on the show-up or on seeing defendant at the restaurant the night of the robbery. Oszust stated that his identification of defendant at the hearing was based upon seeing defendant at the restaurant. During the in-court identification of defendant at trial, Oszust again unequivocally stated that his identification of defendant was based upon seeing defendant behind the restaurant the night of the robbery, and was not based on the show-up. Consequently we conclude that the trial court was justified in its finding that, considering the totality of the circumstances, no misidentification had occurred. This is further substantiated by the trial court’s own statement at the preliminary hearing that Oszust’s identification of defendant was “positive” and “certain.”

Decided October 24, 1994.

Jay L. Palmer, for appellant.

2. In his second enumeration defendant argues that the trial court erred in failing to instruct the jury on impeachment in accordance with defendant’s fourteenth request to charge. This argument also has no merit. In this state, “ ‘(i)t is a fundamental rule . . . that jury instructions must be read and considered as a whole in determining whether the charge contained error.’ (Citation and punctuation omitted.)” Gordon v. State, 210 Ga. App. 224, 226 (2) (435 SE2d 742) (1993); Bass v. State, 208 Ga. App. 859, 861 (432 SE2d 602) (1993). Here, the trial court’s charge to the jury , included specific instructions on witness credibility, identity and circumstantial evidence. These instructions and the charge as a whole incorporate the principle set forth in defendant’s fourteenth request to charge and therefore the trial court’s refusal to charge the jury in the exact language requested by defendant was not error. See Nash v. State, 158 Ga. App. 791, 793 (1) (282 SE2d 358) (1981); Howard v. State, 151 Ga. App. 759, 760 (261 SE2d 483) (1979).

3. In his final enumeration of error, defendant argues that the evidence at trial was not sufficient to support his convictions for the offense of possession of a firearm during the commission of a crime. Specifically, defendant contends that the State failed to prove beyond a reasonable doubt that a real gun was used during the robbery. We disagree. The record shows that both Oszust and Liner testified that they saw one of the robbers brandishing a nickel/silver-plated pistol during the robbery. Oszust further testified that defendant used the gun, which Oszust described as a .38 caliber, to strike him on the head several times, thereby causing injury to Oszust. Neither Oszust’s nor Liner’s testimony regarding the gun was contradicted or refuted at trial. Moreover, we note that defendant’s own attorney introduced the term “pistol-whipped” to the jury without seeking to clarify whether or not the gun used to strike Oszust was real or not. Viewing the evidence in a light most favorable to the jury verdict, we conclude that there was sufficient evidence for a rational trier of fact to find beyond a reasonable doubt that a real gun was used by defendant during the robbery, and therefore, that defendant was guilty beyond a reasonable doubt of the offenses for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see also Hogan v. State, 210 Ga. App. 122 (435 SE2d 494) (1993).

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.

Stephen F. Lanier, District Attorney, Lisa W. Pettit, Assistant District Attorney, for appellee.


text:
    A94A1777.
    SHARP v. FAGAN.
    (449 SE2d 648)
   Smith, Judge.

Tony Fagan brought suit against Paul Sharp, seeking recovery of damages for injuries resulting from a collision in which Sharp’s pickup truck hit Fagan’s car from the rear. The jury returned a verdict in favor of Fagan for $15,000, and Sharp appeals.

1. Sharp contends the trial court erred in denying his challenge to Fagan’s exercise of jury strikes in a racially discriminatory manner. Sharp, who is white, asserts that Fagan, who is black, used all his jury strikes to remove white persons from the jury, in contravention of the principles set forth in Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986) and Edmonson v. Leesville Concrete Co., 500 U. S. 614 (111 SC 2077, 114 LE2d 660) (1991).

State courts must consider a private litigant’s challenge to the use of peremptory challenges in a civil trial. Strozier v. Clark, 206 Ga. App. 85, 86 (1) (424 SE2d 368) (1992). In order to establish a prima facie case of purposeful discrimination in jury selection on the basis of race, however, Sharp had the burden to complete the record to include information revealing the racial composition of the panel from which the jury was selected, the racial breakdown of the strikes of both parties, and the racial composition of the resulting jury. Woods v. State, 208 Ga. App. 565, 566 (431 SE2d 167) (1993).

Sharp has supplemented the record with the original jury list and the list of the jurors struck during the trial at issue. Those lists, however, do not provide the information required because they do not show the race of the individuals listed. The transcript does reflect a colloquy between court and counsel regarding the racial composition of the jury selected. It is unclear whether that colloquy may be considered as evidence in this civil case. Compare Shaw v. State, 201 Ga. App. 438, 439-440 (1) (411 SE2d 534) (1991) (mere colloquy between counsel and the court is insufficient to perfect the record for appellate review of a Batson claim) with Staples v. State, 209 Ga. App. 802 (1), n. 1 (434 SE2d 757) (1993) and Rector v. State, 213 Ga. App. 450, 451 (2), n. 1 (444 SE2d 862) (1994) (statement of prosecutor “for the record” serves in nature of stipulation if no objection made). We need not decide this question, however, since the record contains absolutely no evidence regarding the racial composition of the entire panel. Therefore, since Sharp has not met his burden to show by the record the facts necessary to prove his claim, we cannot consider this enumeration. Shaw, supra at 440 (1); Love v. State, 205 Ga. App. 27, 28 (1) (421 SE2d 125) (1992).

2. Sharp’s counsel opened his cross-examination of Dr. David Reise, the chiropractor who treated Fagan, with the question: “You have your patient[s] execute a lien when they come to see you, don’t you?” Fagan’s counsel immediately objected to the question, and the trial court ruled the question improper. Sharp asserts error in the trial court’s refusal to allow him to cross-examine Reise in this fashion. He argues that because Fagan assigned to Reise his claim for reimbursement of medical expenses, Reise had an obvious interest in the outcome of the litigation, which Sharp was entitled to explore. Bd. of Trustees &c. of Ga. v. Englade, 256 Ga. 458, 459 (2) (349 SE2d 703) (1986).

We agree with Sharp that a party is entitled to show anything that affects the credibility of an opposing witness. Ayers v. Nichols, 136 Ga. App. 532 (1) (221 SE2d 835) (1975). However, no interest in the outcome of the litigation or any other bias was shown here. In his offer of proof, Sharp introduced the document in question. Although it contains an assignment to Reise of Fagan’s interest in his claim against parties responsible for his injuries, it purports to assign only so much of Fagan’s interest in his claim against those parties as is necessary to pay the chiropractor’s charges for treatment.

The record also contains documents showing that no funds recovered in Fagan’s claim against Sharp would be necessary to pay Reise’s charges, because those charges had been paid in full. These documents negate the basis on which Sharp contends the witness was biased. Sharp’s counsel was aware of these documents, since they were provided to Sharp during discovery. No bias on the part of the witness having been demonstrated, no basis for admitting the testimony was shown. The trial court did not err in refusing to allow the challenged question.

3. Sharp’s contention that the trial court erred in denying his motion for a directed verdict on Fagan’s claim for medical expenses is based upon his assertion that because of the assignment, Fagan was not the real party in interest as to that claim. This argument is without merit because of the facts discussed in Division 2. Moreover, in Georgia, assignment of the right of action for a personal tort is not permitted, OCGA § 44-12-24, rendering any purported assignment void.

Decided October 24, 1994.

Miller & Towson, James V. Towson, for appellant.

Jane M. Jordan, for appellee.

4. Sharp maintains it is “undisputed” that Fagan was impeached during cross-examination by means of a prior inconsistent statement, and the trial court erred, therefore, in refusing to give Sharp’s requested jury charge on impeachment. We do not agree.

For a refusal to charge to be error, the request must be correct, adjusted to the evidence, and not otherwise covered in the general charge. Coastal Equities v. Chatham County Bd. &c., 201 Ga. App. 571, 574 (411 SE2d 540) (1991). OCGA § 24-9-85 (a) provides only that the credibility of a witness as to other testimony is for the jury to determine if he is “successfully contradicted as to a material matter.” (Emphasis supplied.) We agree with Fagan that the exchange during cross-examination regarding whether Fagan first felt pain from his injuries on Saturday evening or Sunday evening following the accident is not such a “material matter” requiring a specific instruction on impeachment. The charge requested was not adjusted to the evidence.

The trial court charged the jury on the credibility of witnesses, and instructed them they could consider, among other things, the witnesses’ demeanor, “the probability or improbability of their testimony, and also their personal credibility insofar as that may legitimately appear from the trial of the case.” This instruction adequately covered the necessary principles.

5. We find no merit in Sharp’s assertion of error in the trial court’s refusal to give three requested charges concerning damages. The requested charges covered instructions on remote damages and nominal damages, as well as a general instruction that the damages awarded must be fair to both parties. These charges either were not adjusted to the evidence or were covered in the court’s general charge.

Judgment affirmed.

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

       Although we do not consider it in addressing this enumeration, we note as well that the record does not reveal when the Batson/Edmonson claim was raised. The transcript shows that Sharp’s counsel stated he made the motion in timely fashion during jury selection. However, this is not evidence. Shaw, supra. The motion was not taken up or ruled on until after witnesses had testified. As this court noted in Calhoun v. Purvis, 206 Ga. App. 565, 568 (2) (425 SE2d 901) (1992), although no judicial guidelines exist regarding the time and manner of presentation of a Batson/Edmonson claim in a civil action, logic dictates that such a challenge should be raised at a time when opportunity still exists to correct any possible violation.


text:
    A94A1509.
    BARNETT v. THE STATE.
    (449 SE2d 651)
   Pope, Chief Judge.

Defendant was charged with two counts of felony murder, possession of a firearm by a convicted felon and two counts of aggravated assault. He was convicted by a jury of voluntary manslaughter, possession of a firearm by a convicted felon, and two counts of pointing a pistol at another, and appeals.

1. After reviewing the evidence in the light most favorable to the jury’s determination of guilt, we conclude that a rational trier of fact could have found the defendant guilty of the crimes for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Defendant contends that the trial court erred in denying his motion to bifurcate for trial the charge of possession of a firearm by a convicted felon from the felony murder charges, and having refused to sever the charges, in failing to properly instruct the jury concerning the consideration of the evidence of his prior convictions. As to this issue, our Supreme Court has held that bifurcation is not required when the count charging possession of a firearm by a convicted felon is material to a more serious charge, as is the case when, as here, the possession of a firearm charge serves as the underlying felony for a felony murder charge. Robinson v. State, 263 Ga. 424 (435 SE2d 207) (1993); Willis v. State, 263 Ga. 70 (3) (428 SE2d 338) (1993); Head v. State, 253 Ga. 429 (3) (d) (322 SE2d 228) (1984). Although our Supreme Court has held that the trial court need not bifurcate, it has made it equally clear that, upon request, the trial court must carefully instruct the jury as to the proper limitations upon their consideration of any evidence of prior convictions. See Head, 253 Ga. at 432. In this case, both the defendant and the State requested that the trial court instruct the jury concerning the limited purpose for which they were to consider the evidence of prior convictions. The trial judge indicated on the defendant’s request that he would give the charge requested by the State but failed to do so when he charged the jury. We agree with the defendant that this failure was error.

We must also determine, however, whether this error was harmful under the facts of this case. Contrary to the State’s argument on appeal, the fact that the jury convicted defendant of the lesser offense of voluntary manslaughter does not demonstrate that the jury did not consider the irrelevant and prejudicial evidence of defendant’s prior conviction in reaching their verdict. Indeed, if the court had given the State’s written request, the jury would have been specifically instructed not to consider evidence of defendant’s prior convictions in deciding his guilt or innocence of the crime of the lesser offense of voluntary manslaughter, as well as the greater offense of felony murder. As defendant argues, the introduction of evidence of prior convictions without proper limiting instructions placed defendant’s character squarely in evidence, and may have influenced the jury to convict him based on his bad character and propensity to commit a crime. Moreover, although the evidence of guilt was sufficient, see Division 1, it was not overwhelming. Given the circumstances here, defendant is entitled to a new trial.

Decided October 25, 1994.

Albert A. Myers III, Joseph F. Bertollo, for appellant.

Cheryl F. Custer, District Attorney, Nancy N. Bills, Assistant District Attorney, for appellee.

3. Defendant’s remaining enumerations have either been rendered moot by our holding in Division 2 or are unlikely to recur upon retrial. Thus, they need not be addressed in this opinion.

Judgment reversed.

McMurray, P. J., and Smith, J., concur.


author: McMurray, Presiding Judge.

text:
    A94A1519.
    VICKERY INSURANCE AGENCY, INC. v. CHAMBERS.
    (449 SE2d 885)
   McMurray, Presiding Judge.

Plaintiff Vickery Insurance Agency, Inc. brought this breach of contract action against defendant Marsha S. Chambers d/b/a Auto Motion, alleging that it had renewed a garage liability insurance policy “at the request of the defendant.” The complaint further alleged that the renewal premium quoted by plaintiff and “agreed to by the defendant was $13,225.68.” Plaintiff applied a $2,500 credit balance owed defendant to the down payment and notified plaintiff that an additional payment of approximately $700 was necessary. However, “defendant failed and refused to pay the premiums as agreed upon. ...” The insurer issued a policy effective September 26, 1992, but cancelled the same effective March 3, 1993, for the stated reason: “ENDORSEMENTS NOT SIGNED AND RETURNED.” Plaintiff demanded “$2,880.20 for premiums not paid by the defendant and, in addition, lost $580.00 in commission. ...” Plaintiff also sought attorney fees, claiming defendant had acted in bad faith and had been stubbornly litigious. Defendant denied the material allegations, claiming that no agreement to renew “[ever] existed as the parties never had a meeting of the minds [,]” and counterclaimed for her deposit “in the amount of $2,700.00. . . .”

At a jury trial, the evidence showed that defendant’s business is an “auto shuttle service delivering cars from dealerships to the auction and back.” J. Charles Vickery, plaintiff’s president and “CEO,” related conversations he had held with defendant’s husband, Henry R. Chambers, to establish the formation of an agreement to renew the existing insurance for Marsha S. Chambers’ business. According to J. Charles Vickery, “Mr. Chambers contacted [him] around September of 1990 and asked that [he] come to see him [Henry R. Chambers] about writing an insurance policy for the business that they were opening up.” J. Charles Vickery met the Chamberses at their home. “[Marsha S. Chambers] was in our conversations when we talked about the coverages . . . [but it was Henry R. Chambers who] handled most of the conversations. . . .” When asked whether he was ever told by Mrs. Chambers that he could deal with her husband in the business, J. Charles Vickery replied: “Well, I never really talked to her anymore that I can remember. Over the next two years I dealt exclusively with him.” Henry R. Chambers agreed that “[he] talked to Mr. Vickery many times, okay, and it was on different things. You know, claims may have been one of them. I did try to help my wife in her business.” In early September 1992, J. Charles Vickery quoted Henry R. Chambers an annual premium “in the neighborhood of thirty-eight thousand dollars ($38,000) [,]” to renew existing coverage. Henry R. Chambers “told him [Mr. Vickery] she’d be out of business; she couldn’t do that. ... It was not acceptable at all, but [he would] have to talk to her about it.” J. Charles Vickery and Henry R. Chambers discussed alternative coverages, including a suggestion by the insurer that the Chamberses could chánge “to a named driver basis and select permanent drivers to drive year round.” The annual premium for ten permanent drivers would be $13,225.60. “Mr. Chambers told [Mr. Vickery] that whatever [Mr. Vickery] did, do not let me [Mr. Chambers] go a day without insurance. And we agreed on the thirteen thousand, two twenty five, sixty ($13,225.60) for ten operators.” Sometime in November 1992, “Mr. Chambers provided [Mr. Vickery] with ten operators that he’d use on a full time basis.” J. Charles Vickery turned this list over to Strickland General Agency and a policy was issued in mid-December 1992.

On December 23, 1992, Mrs. Chambers came to J. Charles Vickery’s office intending “to sign a cancellation request to cancel the policy.” She informed Mr. Vickery that “Mr. Chambers was going to purchase insurance from another agency[. In reply, Mr. Vickery] informed [Mrs. Chambers] that if they had not paid somebody else money already, that they didn’t have any coverage with this other company that he had said that they were buying insurance from.” Mrs. Chambers spoke with her husband using Mr. Vickery’s telephone and left his office without signing any request for cancellation.

Evidence in opposition showed that Mrs. Chambers “own[ed] the business. [She ran] the business, and it was up to [her] to take care of the business, not [her] husband.” She had a checking account for her business and did “the book work[;. . .] the paperwork!; she wrote] the checks, and [she made] the final decisions about the business. . . .” The two policies plaintiff had previously obtained specified only Marsha Chambers as the named insured. Payments on these policies were made by Mrs. Chambers from the account of her trade name. She never signed the endorsement to the policy identifying the ten covered drivers as specified in the list Henry R. Chambers submitted to plaintiff. Nevertheless, she conceded that her husband generally “assists [her] in getting business at the auction when he’s out there [,]” and that specifically, “[h]e made some calls to Mr. Vickery.”

At the close of the evidence, the trial court directed a verdict in favor of defendant, concluding that there was no evidence of a meeting of the minds between plaintiff and defendant. Plaintiff appeals from the final judgment entered pursuant to that directed verdict. Held:

It is undisputed that no direct negotiations between J. Charles Vickery and Marsha S. Chambers ever took place. It is further undisputed that Mrs. Chambers never signed any endorsement specifying the ten permanent drivers, as required by the insurer. Plaintiff nevertheless contends the trial court erred in directing the verdict, arguing that J. Charles Vickery’s discussions with Henry R. Chambers resulted in an agreement which is binding on Mrs. Chambers, by which plaintiff was to obtain insurance coverage for Mrs. Chambers’ business Auto Motion. A directed verdict is proper only “[i]f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict[.]” OCGA § 9-11-50 (a).

There is no contention that Henry R. Chambers’ alleged direction to J. Charles Vickery that “whatever [Mr. Vickery] did, not to let me [Mr. Chambers] go a day without insurance . . .” resulted in an express contract between Mr. Vickery and Mr. Chambers. Perforce, plaintiff relies on a theory of agency to bind Mrs. Chambers, the sole defendant, for the actions of her husband.

“The principal shall be bound by all the acts of his agent within the scope of his authority; if the agent shall exceed his authority, the principal may not ratify in part and repudiate in part; he shall adopt either the whole or none.” OCGA § 10-6-51. “The [husband] is competent to represent the wife as her agent, and this agency, like any other, if not actually created beforehand, may be manifested by ratification.” Schofield v. Jones, 85 Ga. 816, 819 (1), 820 (11 SE 1032). “ ‘Where a wife permits her husband to manage and control her property or allows him so to deal with it as to induce others to believe that it is his property or that he is acting as her authorized agent, such facts are sufficient to establish the agency in favor of [third] persons who deal with him in such belief, where she knows that her husband is so managing and controlling her property and makes no objection thereto.’ Aronoff v. Woodard, 47 Ga. App. 725 (5) (171 SE 404).” Brogdon v. Hallman, 119 Ga. App. 464, 465 (2) (167 SE2d 673). “While proof of the relationship of husband and wife, and that work was done [or services performed which benefited a business] belonging to the wife, without more, is not sufficient evidence to establish the fact that she is [the] principal and the husband merely her agent, so as to render her liable for contracts made by him with third persons (Porter v. Terrell, 2 Ga. App. 269 [(58 SE 493)]), yet only slight evidence of the husband’s agency is required under the law to charge the wife with being the principal (Pinkston v. Cedar Hill Nursery & Orchard Co., 123 Ga. 302 (51 SE 387); Akers v. Kirke, 91 Ga. 590 (18 SE 366)) [.]” Gibbs v. Carolina Portland Cement Co., 50 Ga. App. 229, 230 (2f) (177 SE 760).

Decided October 25, 1994.

Harrison & Harrison, Stephen P. Harrison, for appellant.

William H. Turner, Jr., for appellee.

In the case sub judice, the two-year course of conduct whereby Mr. Chambers dealt with J. Charles Vickery over insurance matters for Marsha S. Chambers d/b/a Auto Motion, coupled with Mrs. Chambers’ admitted knowledge that her husband was contacting the insurance agent on her behalf, is at least slight evidence of the husband’s agency. Gibbs v. Carolina Portland Cement Co., 50 Ga. App. 229, 230 (2f), 231, supra. In reliance upon his conversation with Mr. Chambers, J. Charles Vickery extended credit of approximately $2,880 in the form of premiums he paid on behalf of defendant pursuant to her husband’s instructions: “whatever [you do], do not let me go a day without insurance.” The evidence was sufficient to authorize a finding that plaintiff reasonably relied on Mr. Chambers’ apparent authority to act on his wife’s behalf so as to render defendant liable for contracts made by him with third persons. Gibbs v. Carolina Portland Cement Co., 50 Ga. App. 229, 230 (2f), 231, supra. See generally Home Materials v. Auto Owners Ins. Co., 250 Ga. 599, 601 (2) (300 SE2d 139). The evidence did not demand a verdict that the husband was not the agent for the defendant in negotiating and authorizing insurance coverage for her business. Consequently, the trial court erred in directing the verdict for defendant.

Judgment reversed.

Pope, C. J., and Smith, J., concur.


author: Beasley, Presiding Judge.

text:
    A94A0590.
    RYALS v. THE STATE.
    (449 SE2d 865)
   Beasley, Presiding Judge.

Ryals appeals his conviction for driving under the influence of marijuana in violation of OCGA § 40-6-391 (a) (5). He was operating an 18-wheel tractor-trailer rig when it collided with a small passenger vehicle. Because of the serious nature of the collision, the drivers were required to provide blood and urine specimens. Ryals’ specimens revealed the presence of marijuana metabolites in the range of 50 to 100 milligrams. He claimed that any marijuana in his system was due to repeated and unintentional inhalation of marijuana smoke produced by others in the course of his employment. The State’s expert testified that it was not possible for a person to have registered Ryals’ concentration of the drug from second-hand smoke.

Challenged are the denial of a motion to quash, a motion for directed verdict of acquittal, and the trial court’s refusal to give certain instruction to the jury. The common basis of each challenge is Ryals’ contention that OCGA § 40-6-391 (a) (5) impliedly requires proof that a person is a less safe driver in that the driving has been impaired by the drug ingestion, and that because such requirement is not an express element, the statute facially and as applied violates the State and Federal Constitutions as being void for vagueness, impermissibly burden-shifting, and offensive to due process.

1. We do not address the constitutional challenge, but it provides no basis for reversal. This case was transferred to the Supreme Court because appellant attacked the constitutionality of the statute. See the exclusive appellate jurisdiction of the Supreme Court in 1983 Ga. Const., Art. VI, Sec. VI, Par. II. The Supreme Court returned the case. “ ‘The transfer of the case by the Supreme Court to this court is a final determination that no constitutional question was in fact properly raised or, if so raised, that it was not meritorious.’ [Cit.]” Stephens v. Ivey, 212 Ga. App. 407 (1) (442 SE2d 248) (1994), citing Krause v. Vance, 207 Ga. App. 615, 622 (19) (428 SE2d 595) (1993). See also Pruitt v. State, 203 Ga. App. 125, 127 (3) (416 SE2d 524) (1992).

2. OCGA § 40-6-391 (a) (5) neither expressly nor impliedly includes less safe or impaired driving as an element.

Kerr v. State, 205 Ga. App. 624 (423 SE2d 276) (1992), relied on by appellant Ryals, is inapposite. First, that case involved a violation of OCGA § 40-6-391 (a) (3), which carries the express requirement that the person be under the influence to the extent that it is less safe for the person to drive. It is true that there is language in the opinion to the effect that in order “to convict under all subsections of section (a) except subsection (4)” it must be proven that “the alcohol and/or drugs ingested adversely affect one’s ability to drive.” See Kerr at 627 (3). This does not aid Ryals because Kerr was decided under the version of OCGA § 40-6-391 in effect prior to January 1, 1991 (Kerr’s offenses occurred April 14, 1990). At that time, the DUI statute did not expressly make criminal the conduct that is now proscribed by added subsection (a) (5).

The legislature has determined the public policy to be that driving with any amount of marijuana or a controlled substance (as defined in OCGA § 16-13-21) in one’s blood or urine or both is a criminal act, without the necessity of showing that the presence of such substance or substances impaired the person’s driving ability. In this regard it is similar to the subsection (4) method of proving the crime, which likewise does not require proof that the person was a less safe driver because of the presence of the substance. The Supreme Court of Georgia approved that subsection, without such an element, in Lester v. State, 253 Ga. 235, 237 (2 & 3) (320 SE2d 142) (1984). Subsection (a) (4) merely requires a higher minimum level of alcohol (0.10 grams concentration) than subsection (a) (5) requires of marijuana or a controlled substance (“any amount”).

Decided October 6, 1994

Reconsideration denied October 26, 1994

Alan M. Alexander, Jr., Dave M. Hudgins, for appellant.

Kenneth W. Mauldin, Solicitor, Verda M. Andrews, Assistant Solicitor, for appellee.

The difference between subsection (a) (2) (“Under the influence of any drug to the extent that it is less safe for the person to drive”) and subsection (a) (4) is a matter of proof. If there is evidence of presence in blood or urine, subsection (a) (4) is satisfied. If there is not such evidence, then the State must charge and prove the lessened ability to drive.

Ryals’ conviction for violation of OCGA § 40-6-391 (a) (5) is affirmed.

Judgment affirmed.

Andrews and Johnson, JJ., concur.


text:
    A94A1869.
    GWINNETT PLACE ASSOCIATES, L.P. v. PHARR ENGINEERING, INC. et al.
    (449 SE2d 889)
   Smith, Judge.

Lillian Manley and her husband filed suit against Gwinnett Place Associates, L.P. d/b/a Gwinnett Place Mall, to recover damages for injuries incurred when Lillian Manley fell on a ramp located outside one of the mall restaurants. After considerable discovery, Gwinnett Place filed a third-party complaint against Pharr Engineering, Inc., the engineering firm responsible for designing and constructing the parking lot and curbs at the mall; RTKL Associates, the architectural firm responsible for the overall design of the mall, including sidewalks, ramps, and outside lighting; and Hoar Construction, Inc., the general contractor responsible for installation of the sidewalks and ramps.

In the third-party complaint, Gwinnett Place alleged that in the event it was held liable to the Manleys for reasons relating to the design and/or construction of the handicap ramp, then it was entitled to contribution or indemnification from the third-party defendants. The trial court granted the motions of the third-party defendants for summary judgment, and Gwinnett Place appeals.

1. One ground on which the trial court based its grant of summary judgment to all three third-party defendants is that the third-party complaint was barred by OCGA § 9-3-51 (a), the statute of ultimate repose. That statute provides, in pertinent part, that no action for damages for injury to the person based upon “any deficiency in the . . . planning, design, specifications, supervision or observation of construction, or construction of an improvement to real property” may be brought against those responsible for designing, planning, supervising construction, or constructing such improvement more than eight years after “substantial completion” of the improvement.

It is undisputed that the construction of Gwinnett Place Mall was “substantially completed” no later than February 1984, and that the third-party complaint was filed on September 24,1993, more than eight years after the date of substantial completion.

(a) Gwinnett Place first contends that its third-party complaint is is not an “action” covered under OCGA § 9-3-51 because it is an action for indemnification rather than for injury to person or property. In support of this argument, Gwinnett Place relies on an Indiana case, South Dearborn School Bldg. Corp. v. Duerstock, 612 NE2d 203 (Ind. App. 1993), in which a statute of repose similar to OCGA § 9-3-51 was held inapplicable to a third-party claim for indemnity. We find Duerstock distinguished on its facts, because it involved a written contract for indemnification, whereas this case does not; here, only common law indemnity is involved.

We have been unable to find a Georgia decision addressing this precise issue. However, we find helpful and persuasive Krasaeath v. Parker, 212 Ga. App. 525 (441 SE2d 868) (1994), a recent decision of this court applying a similar statute of repose. In Krasaeath, one of several named defendants in a medical malpractice action settled with the plaintiff. He assigned to her his right of contribution from an unnamed joint tortfeasor, and the plaintiff later brought an action for contribution against the joint tortfeasor. In a case of first impression, this court held that although “couched as one for contribution,” id. at 527, the claim against the joint tortfeasor was within the contemplation of the statute of repose applicable to medical malpractice claims, OCGA § 9-3-71 (b). This court reasoned that because recovery on the contribution claim was dependent upon proof of professional negligence on the part of the joint tortfeasor, it was both logical and fair to apply the statute of repose for medical malpractice. Otherwise, the plaintiff would be allowed, in essence, to bring an untimely and dilatory action for professional negligence. Because plaintiff brought the claim more than five years after the date on which the negligent act occurred, it was therefore barred. Id. at 526-527.

We are persuaded as well by the reasoning in decisions in other jurisdictions considering the issue presented here, holding that statutes of repose similar to OCGA § 9-3-51 bar third-party claims for indemnity. See, e.g., Agus v. Future Chattanooga Dev. Corp., 358 FSupp. 246 (E. D. Tenn. 1973) (statute of repose bars untimely third-party indemnity action brought by owner of apartment building against architects, engineers, and general contractor of building); Nevada Lakeshore Co. v. Diamond Elec., 511 P2d 113 (Nev. 1973) (statute of repose bars untimely third-party claim for indemnification brought by owner of apartment complex against swimming pool designer and installer).

These decisions all defer to the legislature’s intent, in enacting statutes of ultimate repose, to establish a reasonable outside time limit beyond which architects, engineers, and contractors are insulated from suit based upon their work in constructing improvements to real estate. See generally Benning Constr. Co. v. Lakeshore Plaza Enterprises, 240 Ga. 426, 427-428 (241 SE2d 184) (1977). Without such protection, such persons would be exposed to liability for many years after losing control over the improvements and their use and maintenance. Nevada Lakeshore, supra, 511 P2d at 114 (1). Allowing a claim for indemnification under these circumstances would indirectly thwart the intention of the legislature. We hold, therefore, that despite being couched in terms of indemnification, this claim, like the contribution claim in Krasaeath, supra, is within the contemplation of the statute of repose.

(b) Gwinnett Place contends alternatively that even if its claim is covered under OCGA § 9-3-51, an exception is provided under subsection (b) of the statute that renders its complaint timely. We do not agree.

Decided October 26, 1994.

Greene, Buckley, Jones & McQueen, Frank C. Schenck, for appellant.

Shivers, Johnson & Wilson, Wayne C. Wilson, Kimberly A. Johnston, Drew, Eckl & Farnham, T. Bart Gary, Wasson, Sours & Harris, W. Hensell Harris, James G. Stewart, for appellees.

OCGA § 9-3-51 (b) provides that notwithstanding the eight-year absolute bar in subsection (a) of the statute, if an injury to property or the person occurs during the seventh or eighth year after substantial completion, “an action in tort to recover damages for such an injury or wrongful death may be brought within two years after the date on which such injury occurred, . . . but in no event. . . more than ten years after the substantial completion of construction of such an improvement.”

Lillian Manley was injured on April 26, 1991, which was in the eighth year after substantial completion of the mall. The Manleys therefore were required to file their complaint by April 26, 1993. Their complaint was filed on July 15, 1992. Gwinnett Place filed its third-party complaint on September 24, 1993. Gwinnett Place appears to argue that because the plaintiffs’ action was timely filed and Gwinnett Place filed its third-party complaint when it learned the specific contentions of the plaintiffs regarding the defective ramp, fairness dictates that its complaint should relate back to the date of the filing of the plaintiffs’ action.

Gwinnett Place cites no authority for this contention, and we find no support for such a position in OCGA § 9-3-51 (b). Given our holding in Division 1 (a) that the third-party claim for indemnification is an “action” covered under OCGA § 9-3-51 (a), and in view of the fact that the third-party claim was not filed within two years of Lillian Manley’s fall, as required by subsection (b), it was not timely filed. The trial court properly entered summary judgment in favor of the defendants based on OCGA § 9-3-51.

2. A trial court’s judgment, right for any reason, will be affirmed. Tillett Bros. Constr. Co. v. Dept. of Transp., 210 Ga. App. 84, 88 (435 SE2d 241) (1993). Because we hold that summary judgment was proper in favor of all third-party defendants on the ground that the third-party complaint was barred by the statute of ultimate repose, we need not consider Gwinnett Place’s other enumeration addressed to the alternative ground relied upon by the trial court.

Judgment affirmed.

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

       The complaint was originally filed against JMB Property Managers, Inc. d/b/a Gwinnett Place Mall, and later amended to reflect the correct name of the defendant.

       A statute of ultimate repose limits absolutely the time during which a party may bring an action, regardless of when the cause of action accrues. It is distinguished from a statute of limitation, which is a procedural rule delineating a time period measured from the accrual of the right of action during which a party must bring an action. Krasaeath v. Parker, 212 Ga. App. 525, 526-527 (441 SE2d 868) (1994); see Wright v. Robinson, 262 Ga. 844, 845 (426 SE2d 870) (1993).


text:
    A94A2268.
    HAMPTON v. THE STATE.
    (449 SE2d 654)
   Blackburn, Judge.

Jeffrey Hampton was convicted by a jury under two separate indictments for two counts of sale of cocaine and two counts of possession of cocaine. On appeal, Hampton contends his trial counsel was ineffective.

“The bench mark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. In order to prevail on an ineffectiveness claim, a convicted defendant must show (1) that counsel’s performance was deficient, i.e., that counsel’s performance was not reasonable under all the circumstances, and (2) that this deficient performance prejudiced the defense, i.e., that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. The complaining defendant must make both showings.” (Citation and punctuation omitted.) Mozingo v. State, 214 Ga. App. 410 (448 SE2d 23) (1994).

The testimony of the police officers established that on June 23, 1992, Hampton sold cocaine to two undercover police officers and a confidential informant, and that on July 10, 1992, Hampton again sold cocaine to an undercover police officer and a confidential informant. Hampton denied making the sales. With regard to the June 23, 1992 transaction, a witness disputed the officers’ testimony regarding his involvement and Hampton’s sale of cocaine.

Hampton contends that his counsel was deficient in that he did not attempt to determine the identity of the confidential informant. Hampton argues that under the facts of this case, the prosecution was required to disclose the identity of the confidential informant pursuant to Moore v. State, 187 Ga. App. 387 (2) (370 SE2d 511) (1988). In Moore, we required the disclosure of the confidential informant’s identity where the informant was the only witness in a position to amplify or contradict the testimony of the defendant and the police officer. See also Ponder v. State, 191 Ga. App. 346, 347 (381 SE2d 534) (1989).

In the present case, Hampton produced a witness who contradicted thé police officers’ testimony regarding the June 23, 1992 transaction; however, with regard to the July 10, 1992 transaction, no witnesses other than the police officer and Hampton testified. Therefore, the prosecution would have been required to disclose the identity of the confidential informant on the July 10, 1992 transaction.

As discussed above, Hampton must show error and prejudice if he is to prevail. On the record before us, we are unable to determine if Hampton’s trial counsel’s failure to obtain the identity of the confidential informant prejudiced his case. Accordingly, the trial court is directed to conduct a post-trial, in-camera proceeding as explained in Moore, supra, to determine whether the failure to obtain the identity of the confidential informant was harmful.

Decided October 26, 1994.

H. Samuel Atkins, Jr., for appellant.

Dennis C. Sanders, District Attorney, M. Eric Eberhardt, John C. Hammond, Assistant District Attorneys, for appellee.

The trial court’s determination that Hampton’s additional allegations of ineffectiveness were without merit, is not clearly erroneous. See Gibbs v. State, 213 Ga. App. 117 (1) (443 SE2d 708) (1994).

Case remanded with direction.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A94A2295.
    SHELLNUT v. THE STATE.
    (449 SE2d 652)
   Blackburn, Judge.

Randall Steven Shellnut appeals his conviction by a jury of possession of cocaine and obstruction of an officer.

1. On appeal, Shellnut asserts the trial court erred in denying his motion in limine to suppress a portion of his statement. Shellnut sought to suppress his admission to Investigator Garner that he smoked marijuana. The trial court allowed Garner’s testimony regarding the admission. However, at the end of Shellnut’s case, the trial court determined that Shellnut’s admission was not admissible. The trial court instructed the prosecutor to not refer to Shellnut’s admission in closing arguments. The trial court also offered to give curative instructions to the jury, which Shellnut’s counsel refused. Shellnut’s counsel stated: “Your Honor, I don’t think it’s that important and caught the jury’s attention. I think it would bring more attention to it by doing that. And I, of course, do feel a curative instruction would do more harm than good.”

Shellnut’s counsel attempted to preserve his objection to the introduction of Shellnut’s admission. However, he again declined the trial court’s offer of curative instruction, and upon the trial court’s inquiry as to whether Shellnut’s counsel was moving for a mistrial, counsel replied negatively.

Shellnut’s refusal to either allow curative instructions or to move for a mistrial in response to the court’s inquiry, is fatal to the preservation of any error. See Bromley v. State, 259 Ga. 377 (4) (380 SE2d 694) (1989); Woods v. State, 240 Ga. 265 (6) (239 SE2d 786) (1977). While Shellnut may be correct that a curative instruction may have done more harm than good, that makes the necessity of a mistrial motion all the more obvious. Shellnut cannot take his chance with the jury and then upon conviction complain of that which he elected to allow initially. See Timberlake v. State, 246 Ga. 488 (271 SE2d 792) (1980).

2. In his second enumeration of error, Shellnut contends the trial court erred in allowing hearsay statements into evidence. Shellnut argues that Investigator Garner’s testimony regarding what a witness told him was inadmissible hearsay. The trial court determined that the statements were offered to explain Investigator Garner’s subsequent conduct, and allowed them. We agree.

“The testimony that a witness received certain information upon which he acted is admissible not as independent evidence to establish the truth of such information, but as an inducement and explanation by the witness that, acting on such information, he discovered other facts connecting the accused with the crime in question. Hearsay testimony may be admitted for the purpose of explaining conduct.” (Citations and punctuation omitted.) White v. State, 208 Ga. App. 885, 888 (432 SE2d 562) (1993); “[I]n rare instances, conduct of an investigating officer needs to be explained.” Ross v. State, 210 Ga. App. 455, 456 (436 SE2d 496) (1993).

In the present case, the hearsay statements explained the officer’s conduct in returning to the place of arrest. A witness informed Investigator Garner of Shellnut’s statement that Shellnut had discarded drugs at the scene of his arrest. Investigator Garner informed Deputy Jones of Shellnut’s statement. Deputy Jones returned to the scene of the arrest and found a bottle containing cocaine. The trial court did not err in overruling Shellnut’s objection to the hearsay testimony.

3. Shellnut contends the trial court erred in denying his motion for new trial. In his motion for new trial, Shellnut asserted the general grounds, i.e., the verdict was contrary to law, the verdict was contrary to the evidence, and the verdict was strongly against the weight of the evidence.

Having viewed the evidence in the light most favorable to support the verdict, including the videotape of Shellnut’s arrest, we conclude that a rational trier of fact could have found Shellnut guilty beyond a reasonable doubt of the offenses for which he was convicted. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

Decided October 26, 1994.

Franklin H. Thornton, for appellant.

Peter J. Skandalakis, District Attorney, Monique F. Kirby, Assistant District Attorney, for appellee.

       Shellnut was found not guilty of possession of marijuana.


text:
    A94A2700.
    REED et al. v. BURNS INTERNATIONAL SECURITY SERVICE, INC.
    (449 SE2d 888)
   Blackburn, Judge.

The appellee, Burns International Security Service, Inc. (“Burns”), brought the instant breach of contract action against the appellant, Russell Reed, individually, and d/b/a Tecali Club Apartments (“the Apartments”), based upon Reed’s failure to make timely payment pursuant to a written agreement for Burns to provide security personnel for the Apartments. The agreement was signed by Reed as follows: “Client Tecali Club Apt. By Russell Reed.” In his answer, Reed denied signing the contract in his individual capacity, contending that he endorsed the document in his capacity as an agent of Tecali Club Associates, Ltd., the limited partnership that allegedly owned and operated the Apartments.

The trial judge, sitting without a jury, entered judgment in favor of Burns and against Reed, concluding that Reed failed to disclose the fact of his agency relationship, the identity of his principal, or that his principal was a separate legal entity. This appeal followed.

In four separate enumerations, Reed asserts that the trial court erred in failing to conclude that he was a distinct legal entity from the Apartments, that he was not a party to the contract, that he was acting as an agent for the limited partnership, and that he was not the real party in interest.

“In order to avoid personal liability an agent is under a duty to disclose the fact of his agency and the identity of his principal, and one who deals with an agent who fails to disclose his principal may at his election recover from either the agent or the principal. The disclosure of an agency is not complete for the purpose of relieving the agent from personal liability unless it embraces the name of the principal.” (Citations and punctuation omitted.) Hunter Turnkey v. Pilot Property Co., 210 Ga. App. 365 (436 SE2d 84) (1993). See also Jones v. Burlington Indus., 196 Ga. App. 834, 837 (397 SE2d 174) (1990).

In this case, the uncontradicted evidence shows that Reed failed to disclose the fact that he was acting as an agent for Tecali Club Associates, Ltd., and no evidence in the record reflects the name of the limited partnership. In addition, a search of the records maintained by the Secretary of State’s office shows that Tecali Club Apartments is not registered as a legal entity.

Decided October 26, 1994.

Bruce A. Hagen, for appellants.

John H. Watson, for appellee.

Although Reed relies upon testimonial evidence produced at the proceeding below in support of his enumerations, he failed to prepare a transcript thereof for inclusion in the appellate record. Therefore, “we must presume that the trial court’s findings were proper and supported by competent evidence. [Cit.]” Young v. First American Bank of Ga., 196 Ga. App. 348, 349 (396 SE2d 73) (1990). Accordingly, the trial court did not err in its ruling.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.