text:
    A94A1560.
    ROBERT, LTD. v. PARKER.
    (450 SE2d 219)
   Birdsong, Presiding Judge.

This appeal concerns non-competition, non-disclosure, and consulting agreements executed in connection with the termination of W. Ennis Parker’s employment with Robert, Ltd., an architectural-engineering firm. Parker was Robert’s president and chief operating officer when the board of directors decided to terminate his employment with the company. Subsequently, a severance package was negotiated that included the agreements involved in this litigation. Included in the package was an agreement that Robert would pay Parker $100,000 in 18 monthly installments as severance pay and consideration for the non-competition, non-disclosure, and consulting agreements, and the $100,000 payment was secured with a note. After four payments were made on the note, payments ceased when Robert learned that Parker was employed as an executive by one of its competitors.

After Parker sued on the note, Robert admitted a prima facie case and at trial defended on the grounds that Parker had violated the non-competition, non-disclosure, and consultation agreements he signed. After consideration of all the evidence presented by both parties, however, the trial court granted Parker’s motion for a directed verdict in the full amount sued. Held:

1. “A directed verdict is authorized only when there is no conflict in the evidence on any material issue and the evidence, with all reasonable deductions and construed in favor of the non-moving party, demands a certain verdict. OCGA § 9-11-50 (a); Southern Store &c. Co. v. Maddox, 195 Ga. App. 2, 3 (392 SE2d 268); McCarty v. Nat. Life &c. Ins. Co., 107 Ga. App. 178, 179 (129 SE2d 408). Further, the trial court is not authorized to weigh the evidence or decide issues of fact. Barber v. Atlas Concrete Pools, 155 Ga. App. 118-119 (270 SE2d 471).” Moore v. American Suzuki Motor Corp., 203 Ga. App. 189 (416 SE2d 807).

Examination of the trial court’s comments in the transcript of the hearing on the motion for a directed verdict shows that the court found that Robert had failed to prove that Parker had violated the agreements. Of course, if supported by the evidence, the failure of a party to prove its case would be a proper basis for granting a motion for a directed verdict. Moore v. American Suzuki, supra; Collins v. Ralston & Ogletree, 186 Ga. App. 583, 585 (367 SE2d 861). In this instance, however, evidence was presented from which a jury might conclude that Parker violated the non-compete agreement. While we agree with the trial court that the non-compete agreement did not prohibit Parker from merely being employed by a competitor, that conclusion is not dispositive. The evidence also shows that, after leaving Robert, Parker sent a series of letters to former clients of Robert and offered further assistance to those clients. Thus, it becomes a question of fact whether these letters constituted solicitation of these former clients of Robert and thus whether Parker violated his non-compete agreement. Although the trial court’s comments in ruling on the motion suggest that the court found that these letters were not efforts to solicit business, such a factual determination was not a matter within the court’s authority. Moore v. American Suzuki, supra; Barber v. Atlas, supra. While the evidence presented might have authorized a verdict in favor of Parker, that would not authorize the grant of a directed verdict; to authorize a grant of directed verdict, “there must be no evidence of any kind supporting [Robert’s] position.” (Citation and punctuation omitted.) Moore v. American Suzuki, supra at 190.

2. Although Parker contends that we should affirm the grant of the directed verdict under the right for any reason rule (see, e.g., Farmer v. Argenta, 174 Ga. App. 682 (331 SE2d 60)) and in other circumstances application of that rule might be warranted, in the posture of this case it is not appropriate for us to do so. In effect, the trial court’s grant of the directed verdict pretermitted the issues concerning enforceability of the agreements and decided the case based upon Robert’s failure to prove that Parker had violated the agreements. Thus, the trial court made no rulings on the enforceability of the agreements or on the question of liquidated damages, both of which are issues to be decided by the trial court in the first instance. See W. R. Grace & Co. v. Mouyal, 262 Ga. 464 (422 SE2d 529); Liberty Life Ins. Co. v. Thomas B. Hartley Constr. Co, 258 Ga. 808, 809 (375 SE2d 222). In these circumstances, we decline to address these issues before the trial court has done so.

Decided September 20, 1994

Reconsideration denied November 22, 1994

Smith, White, Sharma & Halpern, Furman Smith, Jr., for appellant.

Greenfield, Bost & Kliros, William L. Bost, Jr., for appellee.

Accordingly, as the evidence did not demand a verdict for Parker, the trial court erred by granting a directed verdict. OCGA § 9-11-50 (a). Therefore the judgment of the trial court must be reversed.

Judgment reversed.

Blackburn and Ruffin, JJ., concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A94A2407.
    ELLERBEE v. THE STATE.
    (450 SE2d 443)
   Birdsong, Presiding Judge.

Roy Anthony Ellerbee appeals his judgment of conviction of theft by shoplifting. Appellant was tried for shoplifting and his first trial resulted in a mistrial; appellant was retried and convicted. Appellant enumerates seven errors. Held:

1. Assuming without deciding that the issue of denial of motion for directed verdict in appellant’s first trial was not rendered moot following the subsequent mistrial and his retrial (compare Rhyne v. State, 209 Ga. App. 548 (1) (434 SE2d 76) with Willis v. Maloof, 184 Ga. App. 349 (361 SE2d 512) and Phillips v. State, 133 Ga. App. 461 (211 SE2d 411)), in the interest of judicial economy we accept appellate jurisdiction over the issue in appellant’s first enumeration of error. OCGA § 5-6-34 (d).

The trial court did not err in denying appellant’s motion for directed verdict of acquittal. When an enumeration is based on the overruling of a motion for directed verdict of acquittal which was grounded on insufficiency of the evidence, the proper appellate test is the “beyond a reasonable doubt test” expressed in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). On appeal a reviewing court may consider all the evidence in the case and must view the evidence in the light most favorable to the verdict. Riden v. State, 213 Ga. App. 17, 18 (1) (443 SE2d 865). Review of the transcript of the first trial reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the theft by shoplifting offense for which he was brought to trial. Jackson v. Virginia, supra.

2. Appellant’s second enumeration of error is crafted so unartfully as to fail to state any specific assignment of error with adequate specificity. To the extent the enumeration may be interpreted as asserting the trial court erred in granting appellant’s motion for mistrial during the first trial, it is without merit. The record establishes that the judge had an ex parte communication with a holdout juror at the latter’s request; the holdout juror who was visibly upset in essence requested to be removed from the jury, as it was hopelessly deadlocked 11-1, and she apparently perceived she was being subjected to undue pressure. The court subsequently reported these events whereupon appellant’s counsel moved for mistrial, opposing vigorously any suggested corrective alternatives. The trial court granted appellant’s mistrial motion. It is well settled that on appeal a party cannot complain of a judgment, ruling, or order that his own trial procedure, legal strategy, or conduct procured or aided in causing. See generally Williams v. State, 205 Ga. App. 445, 446 (2) (422 SE2d 309). Also, the trial court must exercise discretion in determining whether to grant or deny a mistrial motion. See Grier v. State, 209 Ga. App. 283, 284 (1) (433 SE2d 685). Appellant has failed to show the trial court abused its discretion by granting appellant’s mistrial motion.

3. Appellant’s third enumeration of error appears to assert that reversible error occurred in the first trial when an alternate juror was placed in the jury room with the other 12 jurors after the complaining juror had been excused from jury duty and without the alternate being properly selected as a replacement juror. The granting of appellant’s motion for mistrial renders this particular enumeration moot. Assuming arguendo any other claim of error also is contained within this single enumeration, such procedure would violate OCGA § 5-6-40; this Code section requires that each enumeration shall set out separately each error relied upon. In the exercise of our appellate discretion, we elect to review no other error asserted within enumeration of error no. 3. Robinson v. State, 200 Ga. App. 515, 518 (2) (408 SE2d 820).

4. Appellant’s assertion of error due to denial of his double jeopardy claim will be addressed in Division 5 below. Appellant requested a certificate of immediate review of the rulings of the trial court on appellant’s double jeopardy claim, motion to renew and motion for acquittal notwithstanding a mistrial. Appellant’s counsel argued that, as to the double jeopardy claim, the certificate could not be denied unless the court found appellant’s position was frivolous and was taken to delay the court. The trial court denied the request after setting forth a detailed chronology of events and ruling that “the plea [in bar] was not filed sufficiently in advance of trial, that, in fact, is a delaying device at this point.” However, the record affirmatively establishes that previously the trial court had conducted a hearing, had considered appellant’s double jeopardy claim on the merits and had denied that claim. Appellant’s contention that its double jeopardy claim was summarily denied prior to trial is without merit. Moreover, any error is rendered moot by this court’s consideration of appellant’s double jeopardy claim in Division 5 below.

5. Appellant’s fifth enumeration of error appears to assert two errors rather than one separate claim of error, and thus violates OCGA § 5-6-40. In our appellate discretion (Robinson, supra), we will address the claims that the trial court erred in failing to grant appellant’s double jeopardy claim and that error occurred by not allowing appellant to appeal the denial of his double jeopardy claim before the State was allowed to try him again.

(a) Assuming arguendo that error had occurred in denying appellant an opportunity to appeal immediately the trial court’s ruling as to appellant’s double jeopardy claim, we find that by our consideration of this claim on its merits, any such error is rendered harmless. OCGA § 9-11-61.

(b) “Jeopardy attached in this case. Once the jury has been impaneled and sworn, jeopardy attaches.” Dotson v. State, 213 Ga. App. 7, 8 (1) (443 SE2d 650). “Where the trial is terminated over the objection of the defendant, the classical test for lifting the double jeopardy bar to a second trial is the ‘manifest necessity’ standard. . . . But in the case of a mistrial declared at the behest of the defendant [as occurred in the case at bar], quite different principles come into play. Here the defendant himself has elected to terminate the proceedings against him, and the ‘manifest necessity’ standard has no place in the application of the Double Jeopardy Clause.” Oregon v. Kennedy, 456 U. S. 667, 672 (102 SC 2083, 72 LE2d 416). Rather, the general rule is that where a mistrial is granted at the behest of the defendant, a retrial is not barred by principles of double jeopardy unless the governmental conduct in question (from whomever derived) is intended to “goad” the defendant into moving for a mistrial. Mobley v. State, 262 Ga. 808, 809-810 (1) (426 SE2d 150). In this instance, during the course of deliberation, the holdout juror obtained an ex parte conference with the trial judge and asked to be released from jury duty. The trial court subsequently made a complete disclosure of these events. Appellant does not contend that the conduct of the trial court was intended to provoke appellant into requesting a mistrial. In fact, appellant conceded during the hearing of his double jeopardy claim that he did not “mean to imply that [the trial judge] did [communicate with the juror] unwittingly or that [the trial judge] did it with malice either. [Appellant] only meant to say that it was not something that was intended to create the result that occurred.” The record further reveals that appellant at the first trial was given at least one option other than mistrial but opposed continuing the trial using the alternate juror. The fact that appellant made a strategic choice that backfired and placed him in a “particular dilemma” does not justify a further expansion of the narrow exception announced in Oregon v. Kennedy, supra, and recognized in Mobley v. State, supra. Appellant’s contention that the trial court erred in denying his claim of double jeopardy is without merit.

6. Appellant’s sixth enumeration is that the trial court erred in finding a prima facie case of discriminatory peremptory strikes when the defense struck 12 white jurors; appellant is black. The principles of Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) apply equally to the defense as to the prosecution. State v. Carr, 262 Ga. 893 (427 SE2d 273); see State v. McCollum, 262 Ga. 554 (422 SE2d 866). “ ‘[W]here (, as here,) a [defense counsel] has disproportionately struck members of one race in the exercise of his peremptories, it is not sufficient rebuttal to rely on the composition of the jury as selected.’ ” Smith v. State, 263 Ga. 224, 226 (4) (430 SE2d 579); see also Colquitt v. State, 213 Ga. App. 789 (1) (446 SE2d 247); cf. Congdon v. State, 261 Ga. 398 (405 SE2d 677) (State uses peremptory challenges to challenge four black veniremen during trial of white defendant). It thus appears that the trial court did not err in concluding that a prima facie showing under Batson had been made.

Additionally, the record discloses that appellant offered to provide a racially-neutral explanation for his peremptory challenges even before the trial court determined affirmatively on the record that a prima facie case had been made. Once the party exercising peremptory challenges “ ‘has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant has made a prima facie showing becomes moot.’ ” Lewis v. State, 262 Ga. 679, 680 (2) (424 SE2d 626); accord Asbury v. Ga. World Congress Center, 212 Ga. App. 628, 629 (1) (442 SE2d 822) (since trial court required appellee to explain its strikes, the issue of a prima facie showing of discrimination is moot). Appellant’s sixth enumeration as crafted is without merit.

7. Appellant’s seventh enumeration of error is that the trial court erred in finding that a race-neutral explanation was not given by appellant regarding juror no. 70 and, as a result, seating juror no. 70.

Appellant explained that he struck juror no. 70 because she had been the victim of the crime of car theft and had worked for Delta for 27 years. However, the record reveals that there were a number of jurors (both black and white) who had been crime victims and that juror no. 54, a black juror, was a crime victim and was not struck from the jury. The record also reveals that a black juror, no. 78, worked for Delta for 27 years also and her husband worked for Delta for 31 years, yet she was not struck from the jury.

After the trial court’s determination that a race-neutral reason was not given for the strike of juror no. 70, the parties were ordered to restrike the jury; appellant again exercised a peremptory challenge against juror no. 70. The trial court, having concluded that juror no. 70 had been excluded for other than a racially-neutral reason, seated the juror. Although appellant objected to this procedure, no additional reason was offered for his exercise of peremptory challenge against juror no. 70.

(a) As a general rule, where multiple racially-neutral reasons are given for the peremptory strike of potential jurors, a Batson violation does not exist simply because one or more of those racially-neutral reasons was not used by the prosecutor to strike potential jurors of a different race. Smith v. State, 264 Ga. 449, 452 (3) (448 SE2d 179). However, the trial court’s finding of purposeful discrimination is a finding of fact which ordinarily must be given great deference by an appellate court, since it largely will turn on evaluation of credibility. Moreover, the trial court can visually and auditorially observe the demeanor of both prospective jurors and counsel. Thus, we may only reverse the trial judge’s determination that appellant’s peremptory challenge was motivated by intentional discrimination if that determination is clearly erroneous. Compare Asbury, supra at 630 (1) and Thomas v. State, 208 Ga. App. 367, 368 (1) (430 SE2d 768). Here, in addition to considerations of demeanor, credibility and the failure to strike black jurors who were crime victims or worked for Delta, appellant struck 12 white jurors notwithstanding the reasons therefor. Thus, several factors existed both in support of and in opposition to the trial court’s ruling. There exists some evidence to support the trial court’s ruling; it is not clearly erroneous. This case is distinguishable from Smith v. State, supra, where it was held that the trial court’s findings that there was no racial motivation for the prosecutor’s exercise of peremptory strikes was not clearly erroneous.

(b) In view of our holding in Division 7 (a) above, we find that the trial court did not err in ordering juror no. 70 to be seated. Both the State and a criminal defendant have the constitutional right to have a jury whose members are selected pursuant to nondiscriminatory criteria (compare Lewis, supra at 680 (2) with Carr, supra); “and an individual juror has the right not to be excluded from a jury on account of race.” (Emphasis supplied.) Lewis, supra at 680 (2). The trial court has constitutional authority to exercise such power as necessary in aid of its jurisdiction and to protect its judgments (Ga. Const. 1983, Art. VI, Sec. I, Par. IV); accordingly, the trial court had the constitutional power to seat an individual juror determined to have been challenged in violation of Batson.

Decided November 7, 1994

Reconsideration denied November 22, 1994

James J. Dalton II, for appellant.

Robert E. Keller, District Attorney, Mary D. Hanks, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


text:
    A94A2451.
    PARDO v. THE STATE.
    (450 SE2d 440)
   Birdsong, Presiding Judge.

Orlando Pardo appeals his judgment of conviction of aggravated assault and armed robbery. He enumerates 12 errors. Held:

1. Mary Case, a bookkeeper for a local Winn-Dixie store, made an in-court identification and a pretrial photographic line-up identification of appellant as the person who pointed a pistol at her and robbed her of between $1,000 and $3,000 of Winn-Dixie money. Greg Long, a Winn-Dixie assistant manager, made an in-court identification of appellant as the person whom he followed out of the store and who pointed a .357 magnum pistol at him, cocked the hammer, and shot at him. Police officers testified as to the circumstances surrounding appellant’s arrest when he attempted a few hours later to run to and enter a motor vehicle parked in the vicinity of the crime scene. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of aggravated assault and armed robbery of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Assuming without deciding that the testimony of the officer regarding whether he would first put on larger or smaller britches if he were to put on both pair together was speculative, and the door to such inquiry had not been opened by appellant; nevertheless, any resulting error would be harmless as it would be highly probable that such error would not have contributed to the jury’s verdict in view of the overwhelming evidence of appellant’s guilt. Alexander v. State, 263 Ga. 474, 476 (2) (c) (435 SE2d 187).

3. By affirmatively expressing no objections to the trial court’s closing charge to the jury and by failing to reserve his right to object on motion for new trial or on appeal, appellant waived any claim of charging error on appellate review. Accordingly, the error asserted in appellant’s fifth enumeration is not before us on appeal. Leavitt v. State, 264 Ga. 178 (3) (442 SE2d 457).

4. Admissibility of evidence is a matter which rests largely within the sound discretion of the trial court. Santone v. State, 187 Ga. App. 789, 792 (371 SE2d 428). Appellant’s ninth enumeration is without merit; appellant has failed to show the trial court abused its discretion, under the attendant circumstances, by excluding appellant’s testimony as to what a third party told him regarding what mechanical problem existed with appellant’s rental car. In this regard, appellant subsequently was allowed to testify that the third party “pointed to me to clean the pole of the batteries.” Moreover, appellant’s counsel acquiesced in the ruling of the trial court and failed to express any affirmative reason on the record for his attempt to introduce the third party’s statements. Additionally, even assuming error had occurred as contended, it would have been harmless. Alexander, supra.

5. Appellant testified and denied that he committed the offenses. The State cross-examined appellant, over objection, as to why he had failed to subpoena any of the people whom he testified had witnessed him swimming earlier and who had invited him to join their party, and why he had failed to have any of them appear in court in his behalf. This was not error. The State was entitled to a thorough and sifting cross-examination of appellant (OCGA § 24-9-64) as to why these persons were not present in court to testify in his behalf; the State is permitted to bring such relevant evidence to the attention of the jury from which it can permissibly draw such reasonable inferences as it deems appropriate, regarding the defendant’s failure to produce a witness whom he has directly or indirectly claimed could support in whole or in part the theory of his defense. Pritchard v. State, 160 Ga. App. 105, 107 (4) (286 SE2d 338); Workman v. State, 137 Ga. App. 746, 747 (3) (224 SE2d 757); see Johnson v. State, 202 Ga. App. 590 (1) (415 SE2d 189) (dictum); see also Shirley v. State, 245 Ga. 616, 617 (1) (266 SE2d 218). Sokolic v. State, 228 Ga. 788 (187 SE2d 822), a case wherein the appellant did not testify, is distinguishable.

6. Appellant filed a motion for new trial arguing, inter alia, that the two attorneys who represented him at varying stages prior to his conviction were both inadequate. The trial court conducted a hearing as to this claim and ultimately denied the motion for new trial. As to the inadequacy of counsel claim, the trial court held: “A reasonable probability does not exist that the result of the proceeding, or verdict, would have been different, even if the court did find that counsel’s performance was deficient.” “ ‘Georgia has adopted the two part test for effectiveness set forth in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674). . . . [Defendants seeking to show that their counsel was ineffective must show: 1) their counsel’s performance was deficient and 2) that the deficient performance prejudiced the defense.’ [Cits.] The failure to establish either element of the test will result in the denial of defendant’s claim of ineffective counsel.” Scapin v. State, 204 Ga. App. 725 (420 SE2d 385). Moreover, an appellant must overcome “the strong presumption that the representation was effective.” Mason v. State, 199 Ga. App. 691, 693 (2) (405 SE2d 747). The facts of this case are distinguishable from those in Cochran v. State, 262 Ga. 106, 108 (2) (b) (414 SE2d 211) where there existed a “total failure of trial preparation.” Pretermitting whether the performances of appellant’s counsels were deficient, within the meaning of Strickland, supra, is whether such performances prejudiced appellant’s defense by creating a reasonable probability that, but for counsels’ unprofessional errors, the result of the proceedings would have been different. Hand v. State, 205 Ga. App. 467, 469 (2) (422 SE2d 316). The trial court concluded that this second prong of the Strickland test had not been met. Appellant has failed to establish that this finding by the trial court was clearly erroneous. “ ‘A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous.’ ” Scapin, supra at 725; accord Hand, supra at 470. Appellant’s fourth enumeration of error is without merit.

7. Appellant’s contention that the trial court erred by allowing and accepting prosecution’s incorrect argument that appellant was guilty of the crime of burglary is without merit. First, appellant failed to object timely to the descriptive statement of appellant’s arrest and conviction given by the State. This issue is not preserved for appellate review as appellant failed to pose a timely objection on these specific grounds at trial. See generally Mundy v. State, 259 Ga. 634 (5) (385 SE2d 666). Secondly, review of the record in its entirety, including the State’s sentencing documents, reveals that the trial court was not misled as to the nature of appellant’s prior criminal record. “The trial judge is presumed to know the law and to be capable of separating admissible grains of evidence from inadmissible chaff.” Rowe v. Rowe, 195 Ga. App. 493 (2) (393 SE2d 750). Likewise, a trial judge is capable of separating the established facts from an apparent slip of the tongue of counsel. For each of these separate reasons, appellant’s sixth enumeration is without merit.

8. In view of our above holdings, we find the trial court did not err in denying appellant’s motion for directed verdict. Evidence sufficiency met the standards of Jackson v. Virginia, supra, and no reversible errors of law exist. See generally Wilburn v. State, 199 Ga. App. 667 (1) (405 SE2d 889). Likewise, the trial court did not err in denying appellant’s motion for new trial. Id.; Daras v. State, 201 Ga. App. 512 (1) (411 SE2d 367); see Karvonen v. State, 205 Ga. App. 852 (2) (424 SE2d 47); cf. Cauley v. State, 134 Ga. App. 310, 312 (2) (214 SE2d 402) (no error in denying extraordinary new trial motion where alleged newly discovered evidence seemed to be cumulative and impeaching in character). Further, appellant concedes in his appellate brief that his enumeration eleven is cumulative of enumerations one through ten; we have determined enumerations one through ten to be without merit.

9. Appellant contends the trial court erred by erroneously refusing to recuse himself at the motion for new trial hearing. We decline, as urged by the State on appeal, to apply strictly the provisions of Uniform Superior Court Rule 25.1 in this instance. The remarks of the trial court on which the oral recusal motion was based occurred during the hearing; the remarks were duly transcribed, as was the trial court’s ruling thereon; and the oral motion to recuse was made immediately following the remarks. Also, the State posed no objection at the hearing to the recusal motion on grounds of non-compliance with Rule 25.1. Good cause existed for the procedure used by appellant, and the trial court ruled on the merits of the recusal motion and denied it.

The extended remarks of the trial court included his statement that the State had presented overwhelming evidence of appellant’s guilt, and emphasized the two-prong Strickland test for inadequacy of counsel; however, the trial court emphasized affirmatively that he would keep an open mind and reserve ruling on the motion for new trial until he had an opportunity to hear all the evidence to be presented. While the remarks of the trial court conveyed the opinion of the trial judge as to the quality of the evidence presented to the jury and as to the manner in which a portion of the trial had been conducted, the remarks revealed no prejudice on the part of the trial court against appellant. While the trial judge’s remarks “may not have constituted exemplary courtroom decorum, they did not provide a legal basis for disqualification.” Chambliss v. Roberson, 164 Ga. App. 579, 581 (1) (298 SE2d 550). Moreover, the remarks of the trial judge “did not raise a reasonable question of the judge’s impartiality,” within the meaning of Canon 3 (C) (1) of the Code of Judicial Conduct. Von Hoff v. Carmichael, 204 Ga. App. 760, 762 (3) (420 SE2d 643).

Each of appellant’s enumerations of error is without merit.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.

Decided November 7, 1994

Reconsideration denied November 22, 1994

Gordon E. Billheimer, Jr., for appellant.

Thomas J. Charron, District Attorney, W. Thomas Weathers III, Amy H. McHesney, Assistant District Attorneys, for appellee.


author: Ruffin, Judge.

text:
    A94A1524.
    BRUMBELOW et al. v. CITY OF ROME.
    (450 SE2d 345)
   Ruffin, Judge.

Plaintiffs, Lura and Wallace Brumbelow, appeal from the trial court’s grant of summary judgment to defendant City of Rome, Georgia.

Lura Brumbelow was walking across a grass strip separating the street from the sidewalk when she unexpectedly stepped into a hole. As a result of the accident, Brumbelow injured her leg and foot. It is undisputed the grass strip is part of a right-of-way maintained by the city.

According to the Brumbelows, the hole was five to ten inches in diameter, three to four feet deep and was completely obscured by the grass surrounding it. Although the Brumbelows and their witnesses had no knowledge of the hole before the incident, in their affidavits they state that “the hole appeared to have been there for a significant period of time.”

The director of the city’s street department stated in his affidavit the city continuously inspects its rights-of-way and maintains records of complaints and repairs. He further stated that a review of those records revealed no complaints or repairs on the right-of-way in question.

The Brumbelows assert as error the trial court’s grant of summary judgment to the city, contending a question of fact remains as to whether the city had constructive notice of the hole.

“A municipality is relieved of any and all liability resulting from or occasioned by defects in the public roads of its municipal street system when it has not been negligent in constructing or maintaining the same or when it has no actual notice thereof or when such defect has not existed for a sufficient length of time for notice thereof to be inferred.” OCGA § 32-4-93 (a).

While the Brumbelows do not contend the city had actual notice of the hole, they presented affidavits stating “the hole appeared to have been there for a significant period of time” in support of their assertion that a factual question as to constructive notice has been raised. The affiants based this conclusion on their observations that the grass surrounding the hole had grown to the point it obscured the location of the hole. However, the Brumbelows presented no evidence showing any actual knowledge of how long the hole had been in existence. “An inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility. [Cit.]” Green v. Sams, 209 Ga. App. 491, 498 (1) (433 SE2d 678) (1993). (Punctuation omitted.) In considering “ ‘affidavits in support of or in opposition to motions for summary judgment[ ] the facts contained therein, and not the conclusions stated, determine whether a genuine issue of fact exists.’ [Cit.]” Chandler v. Gately, 119 Ga. App. 513, 517 (1b) (167 SE2d 697) (1969).

Decided November 22, 1994.

Mundy & Gammage, John S. Husser, for appellants.

Brinson, Askew, Berry, Seigler, Richardson & Davis, Robert M. Brinson, I. Stewart Duggan, for appellee.

In this case the trial court properly excluded the affiants’ conclusions concerning the apparent age of the hole. The remaining evidence concerning the presence of grass obscuring the location of the hole is likewise insufficient to raise the inference required here. Since the Brumbelows failed to put forth evidence creating issues for trial, we find no error in the trial court’s grant of summary judgment. See Carter v. Ga. Power Co., 204 Ga. App. 77, 78 (1) (418 SE2d 379) (1992).

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


author: Pope, Chief Judge.

text:
    A94A1578.
    DEPARTMENT OF HUMAN RESOURCES v. JONES.
    (450 SE2d 339)
   Pope, Chief Judge.

We granted this discretionary appeal to reemphasize the requirement that changed circumstances must be shown before an existing child support award may be modified. The trial court in this case ruled that: (a) its prior order in a legitimation proceeding validly decreased the existing child support obligation of Jones (the father) from $615 a month to $500 a month, and (b) the mother had to repay the father $1,955 (the difference between the two figures over seventeen months). We do not agree that the trial court’s prior order validly decreased the father’s child support obligation and therefore reverse.

The Georgia Department of Human Resources filed a petition in Douglas County for the recovery of child support from Jones, and a consent order was subsequently entered in which Jones agreed to pay $615 in child support. Eight months later, Jones filed a complaint in Haralson County for legitimation and custody of the child. In August 1992, after hearing testimony from Jones “limited to the issue of legitimation,” the Haralson trial court recognized the child as Jones’ legitimate son and ordered Jones to pay only $500 a month. The DHR was not informed of this proceeding and the mother was without counsel. When the DHR did learn of the Haralson proceeding, it contested the validity of the decrease in child support and moved to intervene. The trial court never ruled on the motion to intervene. However, it entered a second order in July 1993 in which it specifically recognized the existence of the Douglas County order (the August 1992 order did not) and stated that its own order superseded that one. In January 1994, in response to Jones’ request for mandamus or a legal modification of child support, the trial court ruled that its August 1992 order validly modified Jones’ child support obligation and that the extra $115 a month that had been deducted from his paycheck had to be returned by the mother. It is from this last, January 1994 order that the DHR appeals.

1. Jones contends the DHR is not a proper party to this appeal because the mother and child are no longer receiving public assistance. However, the DHR’s statutory duty to enforce child support payments continues after public assistance ceases. See OCGA § 19-11-6 (b). This is logical, since it will usually be the payment of child support which is keeping the mother and child from needing public assistance. And the continuing role of the DHR is particularly crucial in cases such as this one, where the mother is unrepresented and no guardian ad litem has been appointed for the child.

2. The exclusive means for modifying an award of child support is set forth in OCGA § 19-6-19 (a): either former spouse may petition for a modification by “showing a change in the income and financial status of either former spouse or in the needs of the child.” See Conley v. Conley, 259 Ga. 68 (4) (377 SE2d 663) (1989). Jones argues that a modification can occur in conjunction with a legitimation proceeding brought under OCGA § 19-7-22, and that such a modification happened here. While it is possible that a petition for modification could be brought in the context of a legitimation proceeding under some circumstances, that did not happen in this case because there was no showing of changed circumstances. Jones suggests we should presume there was evidence of changed circumstances because the DHR has failed to provide a transcript of the August 1992 hearing. However, the August 1992 order specifically states that it was based on Jones’ testimony on the legitimation issue only, and a review of all three of the Haralson court’s orders reveals no indication that the court even realized that changed circumstances were required. Where no transcript is provided we presume the evidence supported the trial court’s factual findings, but this rule does not apply where the trial court’s determination is based on an erroneous view of the law. See State of Ga. v. Chase, 195 Ga. App. 806 (1) (395 SE2d 284) (1990). Accordingly, the original Douglas County child support award was not validly modified, and the Haralson County trial court erred in concluding otherwise.

Decided November 22, 1994.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Assistant Attorney General, Kunz & Associates, Jo L. Parmer, for appellant.

Randall M. Kessler, for appellee.

Judgment reversed.

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

       As the DHR points out, it was unable to have that hearing transcribed because Jones failed to notify the DHR that the hearing was scheduled.


text:
    A94A1640.
    RALEY v. TERMINIX INTERNATIONAL COMPANY, L.P.
    (450 SE2d 343)
   Ruffin, Judge.

David Raley appeals from the dismissal of his complaint for failure to file an expert affidavit pursuant to OCGA § 9-11-9.1.

Raley brought the instant action against Terminix International Company, L.P. (“Terminix”) for personal injuries which resulted from his exposure to pesticides with which his residence was treated by employees of Terminix. Raley alleged that the employees of Terminix advised him that the pesticides would dry in one day; that he was provided with rolls of polyurethane and instructed to lay the material in the crawl space as soon as possible; that he waited for two days to lay the polyurethane as instructed; and that he became violently ill after laying the polyurethane due to his exposure to pesticides and required hospitalization. Raley asserted causes of action for negligence, based on Terminix’s failure to warn, negligent misrepresentation, and inadequate training of its employees; breach of contract, in failing to perform in a safe and commercially reasonable manner; and strict liability. In its answer, Terminix asserted various defenses including Raley’s failure to file a malpractice affidavit as required by OCGA § 9-11-9.1. Terminix then moved to dismiss the complaint on that basis.

Decided November 22, 1994.

Raley does not dispute the requirement of filing an expert affidavit with a professional malpractice complaint against a pest control company (see Colston v. Fred’s Pest Control, 210 Ga. App. 362 (436 SE2d 23) (1993); Orkin Exterm. Co. v. Carder, 215 Ga. App. 257 (450 SE2d 217) (1994)) but contends the court erred in dismissing his complaint because the complaint alleged simple negligence which is capable of proof without expert testimony.

“OCGA § 9-11-9.1 ‘applies to any action for professional malpractice by negligent act or omission, sounding in tort or by breach of contract for failure to perform professional services in accordance with the professional obligation of care.’ [Cit.]” Housing Auth. of Savannah v. Greene, 259 Ga. 435, 436 (1) (383 SE2d 867) (1989). “The determinative factor as to whether a suit in negligence is or is not a malpractice action within the ambit of OCGA § 9-11-9.1 is the existence or absence of allegations that the defendant-professional has rendered negligent professional services. In the case wherein such allegations are made, resolution of the issue of the defendant’s compliance with or deviation from the applicable standard of professional conduct calls for ‘highly specialized expert knowledge with respect to which a layman can have no knowledge at all, and the court and jury must be dependent on expert evidence.’ [Cit.] Accordingly, any plaintiff, regardless of privity, who brings suit against a professional and seeks to recover for the alleged negligent performance of professional services is required by OCGA § 9-11-9.1 to file an expert’s affidavit setting forth at least one specific negligent act or omission and the factual basis for such a claim.” Jordan, Jones &c. v. Wilson, 197 Ga. App. 354, 355-356 (1) (398 SE2d 385) (1990).

Contrary to Raley’s contention, the complaint alleges that Terminix was negligent and breached its contract in the performance of professional services as the allegations call into question Terminix’s conduct as a professional in its area of expertise rather than alleging negligence in the performance of administrative, clerical or routine acts which require no special expertise. See Lutz v. Foran, 262 Ga. 819, 820 (2) (427 SE2d 248) (1993). Accordingly, its conduct must be measured by the “ ‘degree of skill and care ordinarily employed by . .. respective professions under similar conditions and like surroundings.’ [Cit.]” Roebuck v. Smith, 204 Ga. App. 20, 21 (418 SE2d 165) (1992). Since Raley did not file an expert affidavit, the trial court did not err in dismissing the complaint.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.

Torn C. Moore, for appellant.

Ogletree, Deakins, Nash, Smoak & Stewart, Jay M. Barber, Devin M. Ehrlich, for appellee.


author: Smith, Judge.

text:
    A94A1695.
    In the Interest of E. B., a child.
    (450 SE2d 341)
   Smith, Judge.

This is an appeal by a father from an order of the juvenile court terminating his parental rights. The order also terminated the mother’s parental rights, but she does not join in this appeal. Appellant contends the trial court, based on the evidence presented, could not have made a finding of “present parental misconduct” sufficient to support a termination of his parental rights.

Before considering whether to enter an order terminating parental rights, the court must first determine whether there exists “clear and convincing evidence of parental misconduct or inability. . . .” OCGA § 15-11-81 (a). To reach this determination, the court must find the child is deprived within the meaning of OCGA § 15-11-2 (8) due to a lack of proper parental care or control by the parent in question, that this state of affairs is likely to continue or is not likely to be remedied, and that such deprivation will or is likely to cause the child serious physical, mental, emotional, or moral harm. OCGA § 15-11-81 (b) (4) (A). If the court makes this preliminary determination based on clear and convincing evidence, termination of parental rights is authorized if the court likewise finds such action will best serve the child’s interest and needs, “including the need for a secure and stable home.” OCGA § 15-11-81 (a). As an alternative, the court may conclude that the child’s interest and needs will be best served by disposition under OCGA § 15-11-34. OCGA § 15-11-81 (c).

The appellant and the child’s mother were both arrested on burglary charges in April 1991, when the child was one year of age. Upon a finding that the child was deprived, she was placed in the temporary legal custody of the local Department of Family & Children Services (DFCS). In support of that action, the juvenile court found, among other things, that at the time her parents were arrested “[t]he residence appeared to be unkept [sic] and dirty with food and piles of clothes in various places”; that “[t]he child was unclean and found sleeping on a thin mattress on the floor in a room with piles of clothes and trash scattered about”; that the child had no shoes to wear; and that the child had “not received necessary immunization shots.”

In July 1991, appellant and his wife were convicted on the burglary charge. Appellant was sentenced to serve 20 years in prison. Appellant subsequently pled guilty to one felony count and eleven misdemeanor counts of criminal issuance of a bad check and received various sentences to run concurrently with his twenty-year burglary sentence.

No meaningful case plan was established to reunify appellant with the child during his incarceration, and appellant otherwise made little contact with E. B. of his own volition during that time. The child was placed with appellant’s sister for several months during his incarceration. Appellant sometimes called his sister from prison, and on such occasions she offered to put the child on the phone. However, appellant explained that he did not always respond positively to that suggestion because “[a] lot of times I couldn’t hear [the child] because we was living in a prison dormitory. It was very loud and was like a waste of money for me to try to talk to her because I couldn’t understand a word. If she did talk on the phone, [my sister] would have to repeat what she said. All I could ever hear her say was ‘Daddy, Daddy, Daddy.’ That was all I could hear.”

Appellant was released from prison on parole in April 1993, two years after he was originally taken into custody. He did not visit his child, however, until the end of the following month. The court found that all contacts with the child were incidental to scheduled court hearings and case reviews. Appellant testified during the petition hearing that he never “had a way to go” — that he “just never had any money.”

Appellant was again arrested after his release from prison in June 1993, and charged with DUI, although he represented to the court that the charge (which was still pending at the time of the termination hearing) had been reduced to unlawful possession of alcohol on federal government property. The court also noted appellant’s extensive previous criminal history, which included “no less than 7 felonies in various Florida and Georgia counties” since 1978, and also noted he had been imprisoned “approximately 13 of the last 15 years.” The court found the child deprived due to parental misconduct, concluding that appellant’s “long felony record and resulting imprisonment for all but four months of the child’s life have had a demonstrable negative effect on the quality of his relationship with [his child],” and again noting his lack of significant contact following his most recent release from prison and the subsequent violation of the law while on parole. The court also concluded that the deprivation was likely to continue and “to cause serious physical, mental, emotional, or moral harm.” We find this evidence sufficient under OCGA § 15-11-81 and the applicable case law to authorize a rational trier of fact to consider whether termination of appellant’s parental rights was in the child’s best interest. See generally Blackburn v. Blackburn, 249 Ga. 689 (292 SE2d 821) (1982). The termination order reflects that the court did not merely act on its authority to consider termination under the facts, but also found that termination of appellant’s parental rights was in the best interest of the child. We therefore find no error.

Decided November 22, 1994.

Kinney, Kemp, Pickett, Sponcler & Joiner, Tracey S. Witt, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Teresa E. Lazzaroni, Assistant Attorney General, David T. Blackburn, for appellee.

In support of his position, appellant argues that no realistic unification plan was ever created or adopted by DFCS and that DFCS never had any intention of reunifying appellant and his child. However, no evidence upon which the trial court relied in making its determination can properly be attributed to any alleged failings of DFCS. Except, perhaps, to the extent DFCS might be said to have affirmatively interfered with appellant’s ability to maintain a relationship with his child, it is solely the judgment of the juvenile court, and not the actions of DFCS, that are under review here.

Appellant also argues that, contrary to the court’s findings of fact, he visited with the child on two occasions not incidental to case reviews or court hearings. However, appellant does not suggest the court’s conclusion might have differed had it duly noted those two visits, and it does not alter our view of the sufficiency of the evidence as a whole to authorize the judgment.

Appellant also argues that his situation is no different from that presented in In re N. F. R., 179 Ga. App. 346 (346 SE2d 121) (1986). We disagree. As in the present case, the mother of N. F. R. had a long criminal history to overcome. That case, however, is otherwise distinguishable on its facts. Specifically, the undisputed evidence as a whole strongly suggested that the mother was determined to break with her criminal past and to become reunited with and properly raise her child. A long criminal history alone could not be convincingly relied upon to predict the mother’s future behavior in such a case.

While appellant here has made overtures suggesting a willingness to make the changes necessary to raise his child, the evidence also indicates that since his release he has threatened caseworkers, that his encounters with the law have continued, and that his efforts to maintain contact and reunite with E. B. have been decidedly minimal. Accordingly, this case is readily distinguishable from N. F. R., supra. Compare In the Interest of S. B., 188 Ga. App. 364 (373 SE2d 46) (1988).

Judgment affirmed.

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


author: Blackburn, Judge.

text:
    A94A2191.
    INGRAM v. STAR TOUCH COMMUNICATIONS, INC.
    (450 SE2d 334)
   Blackburn, Judge.

We granted appellant Denise Ann Ingram’s application to appeal the trial court’s order awarding attorney fees and expenses of litigation pursuant to OCGA § 9-15-14 (b).

During the course of the litigation, appellee scheduled three out-of-state depositions of its witnesses located in Kentucky. On April 1, 1993, after Ingram’s counsel had refused to agree to telephonic depositions, Star Touch Communications, Inc. (Star Touch), provided Ingram with notice pursuant to OCGA § 9-11-30 (b) (1) that such depositions would be taken in Kentucky on April 9, 1993. Thereafter, Ingram moved for a protective order which was subsequently denied by the trial court on April 9, 1993. In this regard, Ingram argued, in part, that scheduling three separate depositions in separate cities on the same day was unreasonable.

On April 23, 1993, a new notice was given which provided that such depositions would be taken in Kentucky on April 29 and April 30, 1993. Counsel for Star Touch traveled to Kentucky and took the depositions in the two-day period in which they were scheduled. Neither Ingram nor her counsel attended, nor gave notice that they would not attend.

Subsequently, the case was settled without the formal release of any claim by appellee and Ingram dismissed her complaint with prejudice. Thereafter, defendant filed a motion for attorney fees and expenses contending plaintiff, without substantial justification, expanded the proceedings by refusing to agree to telephonic depositions. The trial court granted the motion and this appeal followed.

1. Ingram contends that the settlement and dismissal of this action extinguishes any right to attorney fees in Star Touch, citing this court’s holding in Hunter v. Schroeder, 186 Ga. App. 799, 800 (368 SE2d 561) (1988). Alternatively, Ingram argues that Star Touch should be estopped in equity from asserting a claim for attorney fees and expenses due to its failure to give notice of such intention at the time of settlement.

In Hunter, we reversed an award of attorney fees and expenses under the provisions of OCGA § 9-15-14 on the ground that the legislature could not have intended to authorize a party to move for attorney fees and expenses within 45 days of final disposition of a case in circumstances in which the moving party had achieved a dismissal with prejudice of the other party’s claims, actions or defenses by a mutual dismissal and express release of all claims or counterclaims which were then pending. Id.

Decided November 22, 1994.

Calabro & Jennette, Michael M. Calabro, for appellant.

It is undisputed that Star Touch induced dismissal with prejudice by settlement. Further, while Star Touch settled without giving an express release of its claims, settlement is, in and of itself, generally construed to be a final disposition of any claim against a party to settlement by a party to the settlement arising out of the subject incident, unless remaining claims are specifically reserved by any of the parties. See Coleman v. State Farm Mut. Auto. Ins. Co., 104 Ga. App. 328, 330 (121 SE2d 833) (1961). While, here, unlike Hunter, there was no express release of all claims or counterclaims and there was no mutual dismissal, there was likewise, no counterclaim filed or pending at the time of the settlement and a different result would obtain if there had been, as a failure to provide for a dismissal of such counterclaim would indicate that the parties intended that it survive the settlement of the other issues.

Furthermore, the party not taking the depositions, Ingram, had no statutory duty to attend the depositions, OCGA § 9-11-30 (g), and in not doing so, merely waived the right to confront and cross-examine the deponent. Absent extraordinary circumstances, not here present, the failure of a party to agree to telephonic depositions cannot form the basis of an award of attorney fees and expenses under OCGA § 9-15-14. Such a decision is a matter of tactics, strategy and advocacy based upon factors which may change during the course of the litigation. Any sanctions in connection with a refusal to consent to telephonic depositions must be based upon evidence of the inappropriateness of the refusal at the time thereof. It is not enough to show only that the expenses of the movant were increased by respondent’s failure to consent. The record in the subject case contains no such evidence. The better practice in these circumstances would be to move the trial court to authorize the telephone depositions during the litigation, rather than to seek relief under OCGA § 9-15-14 at the conclusion thereof. The trial court erred in awarding attorney fees and expenses herein. Further, attorney fees and expenses for non-attendance are available only in the instance of the failure of the party taking the deposition to appear. OCGA § 9-11-30 (g). Id.

2. In light of the foregoing, we do not reach Ingram’s remaining assignments of error.

Judgment reversed.

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

Baker, Pacious & Hamilton, Kathleen M. Pacious, for appellee.


text:
    A94A2368.
    CINCINNATI INSURANCE COMPANY v. MULLINAX et al.
    (450 SE2d 336)
   Blackburn, Judge.

The Cincinnati Insurance Company (Cincinnati) appeals the trial court’s grant of defendants’ motion for summary judgment and the denial of its own motion for summary judgment. In the underlying declaratory judgment action, Cincinnati sought a determination of the rights and obligations conferred in the automobile insurance contract issued by Cincinnati to defendants Randy J. Mullinax and Shawn A. Mullinax.

Randy and Shawn Mullinax are listed as the named insureds on the automobile insurance contract issued by Cincinnati. While using their car, without their permission, the Mullinax’s 15-year-old daughter, Meagan Ann Mullinax, was involved in an automobile accident with Patricia Ferguson. Jaime Anderson, a 15-year-old friend of Meagan’s, was in the car with Meagan.

The Andersons filed a complaint against the Mullinaxes to recover damages for Jaime Anderson’s injuries resulting from the accident. Thereafter, the Mullinaxes refused to sign Cincinnati’s non-waiver agreement, and Cincinnati sent Randy and Shawn Mullinax a reservation of rights letter which explained Cincinnati’s potential defense to the Andersons’ claims and Cincinnati’s intention to file the present action. Three days later, Cincinnati filed the present action.

Subsequently, Patricia Ferguson filed suit against the Mullinaxes to recover damages for injuries sustained in the accident, and Cincinnati sent a reservation of rights letter to the Mullinaxes with regard to this suit.

1. The first issue which must be determined is whether Cincinnati’s reservation of rights letters were sufficient. Appellees contend that the reservation of rights letters were insufficient as to any claims asserted against Meagan Mullinax because the letters were directed to Meagan’s parents and did not reference Meagan.

“Upon learning of facts reasonably putting [the insurance company] on notice that there may be grounds for noncoverage and where the insured refuses to consent to a defense under a reservation of rights, the insurer must thereupon (a) give the insured proper unilateral notice of its reservation of rights, (b) take necessary steps to prevent the main case from going into default or to prevent the insured from being otherwise prejudiced, and (c) seek immediate declaratory relief including a stay of the main case pending final resolution of the declaratory judgment action.” Richmond v. Ga. Farm Bureau Mut. Ins. Co., 140 Ga. App. 215, 219 (231 SE2d 245) (1976).

Meagan Mullinax is not defined as an insured or an additional insured by the insurance contract. Her status under the liability coverage portion of the contract is that of a family member. A family member is defined by the contract as a person related to the named insured by blood who is a resident of the named insured’s household. The reservation of rights letters were sent to Meagan’s parents, the named insureds, at the named insured’s address. Therefore, Cincinnati complied with the Richmond requirements.

Furthermore, “[t]he rule enunciated in Richmond is based on principles of fairness, and, in determining whether an insurer has met the requirements thereof, the crucial inquiry is whether the rights of the insured have been adequately protected.” Kelly v. Lloyd’s of London, 255 Ga. 291, 293-294 (336 SE2d 772) (1985). In Kelly, the Supreme Court addressed whether an insurance company’s failure to follow the Richmond requirements by delaying its filing of the declaratory judgment action created a waiver of the insurance company’s contract defenses. 255 Ga. at 293. The Court focused on whether the insureds demonstrated any prejudice caused by the delay in filing the declaratory judgment action, and finding none; the Court determined that the delay was reasonable. 255 Ga. at 294.

In Caldwell v. State Farm Fire &c. Ins. Co., 192 Ga. App. 419, 420 (1) (385 SE2d 97) (1989), we determined that the insureds’ recorded statements combined with a non-waiver of rights form signed by one insured, and the prompt filing of a declaratory judgment action put the insureds on notice of the coverage questions and adequately protected the insureds’ rights. Additionally, in Southern Gen. Ins. Co. v. Buck, 202 Ga. App. 103 (2) (413 SE2d 481) (1991), we recognized that the insurance company had not met the immediacy requirement of Richmond by failing to file a declaratory judgment action for 14 months. However, due to the absence of a showing of prejudice by the insureds as movants for summary judgment, we found that the insurance company did not waive its right to obtain a judicial determination of the coverage issues. Id. at 105.

In the present case, the insureds’ rights were adequately protected. Cincinnati obtained separate counsel for its insureds and their covered family member, Meagan. The insureds were promptly notified of Cincinnati’s defenses, and Cincinnati promptly filed this declaratory judgment action. In the absence of any prejudice shown by appellees, we find that the requirements of Richmond were met.

2. Cincinnati’s payment of personal injury protection benefits to Meagan and property damage benefits to its insureds did not waive its right to rely on an exclusion of liability coverage regarding the same accident. See Washington v. Hartford Accident &c. Co., 161 Ga. App. 431 (288 SE2d 343) (1982). “ ‘Neither waiver nor estoppel can be used to create a liability not created by the contract and never assumed by the insurer under the terms of the policy.’ [Cits.]” Id. at 432.

Appellees assert that our decision in Sargent v. Allstate Ins. Co., 165 Ga. App. 863 (303 SE2d 43) (1983), supports their contention that Cincinnati’s payment of PIP and property damage benefits created a waiver of Cincinnati’s right to rely on an exclusion of liability coverage. We find that Sargent is distinguishable from the present case.

In Sargent, a family member of the insured was afforded property damage coverage despite the fact that she did not live with the insured. Id. at 864. Thereafter, the insurance company sought to rely on the family member’s nonresidency in order to avoid liability coverage, despite its previous payment of property damage claim. Id. at 865. We stated that “an insurer may waive any provision in an insurance policy inserted for its benefit, and may waive any condition or limitation in the policy upon which it could otherwise rely.” (Citations and punctuation omitted.) Id. However, we found that the insurance company’s waiver of the residency condition did not result in an expansion of coverage that included a risk not assumed by it, and that once the insurer waived the policy condition, it could not be reclaimed. Id. at 866-867.

In the present case, Cincinnati’s payment of PIP benefits did not waive any conditions of insurance and had no effect on the exclusions found in the liability section of the insurance contract. “The law favors the settlement of claims without litigation, and courts should not favor rules which would penalize and punish, and place a premium on the action of an insurance company in settling a claim under a policy.” (Citation and punctuation omitted.) Jacore Systems v. Central Mut. Ins. Co., 194 Ga. App. 512, 515 (390 SE2d 876) (1990).

3. We have previously interpreted the liability exclusion upon which Cincinnati seeks to rely and found that it unambiguously excludes liability coverage upon substantially similar facts. See Cincinnati Ins. Co. v. Plummer, 213 Ga. App. 265 (444 SE2d 378) (1994). Therefore, the trial court erred in failing to grant Cincinnati’s motion for summary judgment.

Judgment reversed.

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

Decided November 22, 1994.

Webb, Carlock, Copeland, Sender & Stair, Dennis J. Webb, Daniel J. Huff, Berlon & Timmel, Michael R. Berlon, for appellant.

Crecelius & Crecelius, Bill W. Crecelius, Jr., C. Lawrence Jewett, Jr., Harper, Waldon & Craig, Thomas D. Harper, Sharon Ware & Associates, Donna 0. Darroch, Theodore P. Bianco, for appellees.

       The defendants in the underlying action and appellees herein are Randy J. Mullinax and Shawn A. Mullinax, individually and as parents and guardians of Meagan Ann Mullinax, Meagan Ann Mullinax, Kathleen Anderson and William Anderson, individually and as parents and guardians of Jaime Anderson, Jaime Anderson, Patricia S. Ferguson, and State Farm Mutual Automobile Insurance Company.


text:
    A94A2667.
    DEPARTMENT OF PUBLIC SAFETY v. RAMEY.
    (450 SE2d 332)
   Blackburn, Judge.

The appellee, Robert Allen Ramey, was arrested on January 9, 1994, for driving a motor vehicle while under the influence. When Ramey refused to submit to a state-administered chemical test as required under Georgia’s Implied Consent Law, the arresting officer, on behalf of the Department of Public Safety (the Department), issued to Ramey official written notice of the suspension of his driver’s license. See OCGA § 40-5-67.1. This notice provided that Ramey had a right to an administrative hearing before the Department and that such a hearing must be requested in writing and postmarked within five calendar days from the receipt of notice of the suspension or the right to a hearing would be waived. Ramey signed the lower portion of the form, acknowledging his receipt of notice of the suspension of his driver’s license.

In an undated letter, Ramey’s counsel requested an administrative appeal before the Department. The letter was postmarked on January 15, 1994, and there was no evidence submitted to the Department that the letter was mailed on an earlier date. Presumably based upon the date that the letter was postmarked, the Department denied Ramey’s request for an appeal, and Ramey petitioned the superior court for judicial review of the Department’s decision pursuant to OCGA § 40-5-67.1.

Following a hearing, the trial court found as fact that the request for an appeal was mailed on January 14, 1994, the fifth day after Ramey received notice of the suspension, and that the date that the request was mailed was controlling. The trial court’s factual findings were impliedly based upon affidavits that Ramey attached to his petition for judicial review and his response to the Department’s motion to dismiss. The trial court denied the Department’s request to dismiss the petition and directed the Department to hold a hearing on the suspension of Ramey’s license since his request for an appeal was timely filed. The superior court denied the Department’s motion for reconsideration, and we subsequently granted the Department’s application for interlocutory review.

OCGA § 50-13-19 (g) specifically limits a superior court’s review of a decision of a state agency to matters of record unless there is an irregularity in a procedure before the board. It is improper for a superior court to consider any evidence tendered after a final administrative decision. Quarterman v. Edwards, 169 Ga. App. 300 (1) (312 SE2d 643) (1983). In the present case, the trial court rendered its decision based upon affidavits prepared and submitted to the superior court after the Department issued its final decision denying Ramey’s request for an administrative hearing. The record does not show that Ramey made an application to the superior court for the presentation of additional evidence, and Ramey has not shown any irregularities in the agency’s procedure warranting the submission of additional evidence to the superior court without an application. OCGA § 50-13-19 (f), (g). Therefore, the superior court erred in considering this evidence.

An appellate court’s authority to reverse a decision of a state agency is governed by OCGA § 50-13-19 (h). Under this statute, an appellate court is authorized to reverse a decision of an agency if the agency’s decision prejudiced the aggrieved party’s rights because it was “[c]learly erroneous in view of the reliable, probative, and substantial evidence on the whole record.” OCGA § 50-13-19 (h) (5).

In this case, the record before the Department showed that Ramey’s hearing request was postmarked on January 15, 1994, outside of the five-day time period provided in OCGA § 40-5-67.1 (g) and there was no evidence submitted to the Department on the date that the letter was mailed before this date. OCGA § 40-5-67.1 (g) is ambiguous as to whether the date that a hearing request is postmarked or the date that it is mailed is controlling, and it is well settled that where the terms of a statute are ambiguous, it is necessary to consider other related statutes in order to ascertain the legislative intent in reference to the whole systems of laws of which the ambiguous statute is a part. DeKalb County v. J & A Pipeline Co., 263 Ga. 645 (2) (437 SE2d 327) (1993). Accordingly, we must look to the Administrative Procedure Act for guidance.

OCGA § 50-13-23, which became effective on July 1, 1994, provides that notwithstanding any provision of law to the contrary, any document required to be received or filed with any agency shall be deemed to be filed on the earlier of the date that such document is actually received by such agency or the official postmark date that such document was mailed, properly addressed with postage prepaid by registered or certified mail. While the legislature could have indicated in OCGA § 40-5-67.1 that the date that the appeal is postmarked rather than the date that the appeal is mailed is determinative of its timeliness, this subsequently enacted statute evidences the legislature’s intent to provide a standard by which state agencies can examine the timeliness of documentation filed with the agency. As evidenced by its language, the date on which the document is mailed in the absence of an official postal marking is insufficient to satisfy the requirements of OCGA § 50-13-23 and should likewise be insufficient to commence an appeal of an agency’s decision.

Decided November 22, 1994.

Michael J. Bowers, Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Matthew P. Stone, Assistant Attorney General, for appellant.

Bruce & Hentz, Kenneth D. Bruce, for appellee.

In light of our interpretation of OCGA § 40-5-67.1 (g), we conclude that the trial court erred in determining that the date on which the letter was mailed is controlling. There being competent evidence to sustain the Department’s decision that Ramey’s appeal was untimely, the trial court erred in reversing the decision of the Department of Public Safety. See Hicks v. Harden, 133 Ga. App. 789 (213 SE2d 49) (1975).

Ramey erroneously asserts that OCGA § 9-11-26 of the Civil Practice Act is applicable to proceedings before administrative agencies. In Hewes v. Cooler, 169 Ga. App. 762 (315 SE2d 276) (1984), this court held that the Civil Practice Act is not applicable to judicial review of administrative decisions. There is no compelling reason to apply the Act to administrative procedures which are otherwise governed by statute, specifically OCGA § 40-5-67.1 (g).

Judgment reversed.

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


text:
    A94A1187.
    EDWARDS v. WAL-MART STORES, INC.
    (449 SE2d 613)
   Ruffin, Judge.

Appellant, Mary Edwards, brought this personal injury action against appellee, Wal-Mart, for injuries she allegedly sustained when she slipped and fell on a plastic hanger while shopping. Edwards claimed Wal-Mart was negligent in allowing hangers to remain on the floor which created a hazardous situation. The trial court granted Wal-Mart’s motion for summary judgment and Edwards appealed.

Reviewing the evidence in favor of Edwards, as the nonmovant on summary judgment, the record shows that Edwards was shopping at Wal-Mart and was walking towards the dressing room to try on clothes. On the way, she slipped and fell to the floor. As she was helped up by a Wal-Mart employee named Reba, she noticed coat hangers on the floor and determined she had slipped on a white plastic hanger.

In support of its motion for summary judgment, Wal-Mart filed the affidavit of another employee, Maureen Camp. Ms. Camp averred that she “inspected the exact location where Plaintiff allegedly slipped and fell” and that her inspection “occurred less than five minutes prior to Plaintiff’s alleged slip and fall.” Ms. Camp also averred that at the time of the inspection, there were no hangers or other debris on the floor.

“In order to recover in a slip and fall case of this nature, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance. [Cit.]” Smith v. Wal-Mart Stores, 199 Ga. App. 808, 809 (406 SE2d 234) (1991). See also Sain v. K-Mart, 190 Ga. App. 751, 752 (380 SE2d 299) (1989). Here, the inquiry under the first prong is limited to whether Wal-Mart had constructive knowledge of the hangers since there is no evidence it had actual knowledge of them.

“ ‘Constructive knowledge may be inferred where there is evidence that an employee of the owner was in the immediate vicinity of the dangerous condition and could easily have noticed and removed the hazard. (Cit.)’ ” Food Giant v. Cooke, 186 Ga. App. 253, 254 (1) (366 SE2d 781) (1988). Although it is undisputed that a Wal-Mart employee named Reba was in the immediate vicinity where Ms. Edwards fell, there is no statement by Reba and the evidence is otherwise inconclusive as to whether she could easily have seen the hangers.

“ ‘Liability based on constructive knowledge may also be established by showing that the owner failed to exercise reasonable care in inspecting the premises, but recovery under that approach requires proof of the length of time the dangerous condition was allowed to exist. (Cits.)’ [Cit.]” Id. Although employee Camp’s affidavit stated she inspected the area five minutes before Edwards fell, this number was arrived at by another employee who then entered it on an incident report. Camp’s affidavit was based on that incident report which had been drafted two years earlier. In addition, it is undisputed there were a number of hangers on the floor where Edwards fell as well as in the adjacent aisle which Camp says she also inspected. Because we cannot exclude the possibility that the hanger Edwards slipped on had been on the floor for an unreasonable amount of time, we conclude that a jury issue existed as to Wal-Mart’s constructive knowledge of the hanger. See Smith v. Wal-Mart, supra at 809.

Because a factual issue exists with respect to whether Wal-Mart had constructive knowledge of the hangers, we therefore turn to the second inquiry, whether for some reason attributable to the defendant, Edwards was prevented from discovering the hangers on her own. “This part of the test demands that a person exercise ordinary care for her own safety.” Id. at 810. Edwards established in her deposition that had she been looking at the floor before she fell, she would have had no trouble seeing the hanger. We addressed almost identical testimony in Smith and held “[t]here was no duty to warn [plaintiff] of a condition of which she had knowledge at least equal to that of defendants.” (Citations and punctuation omitted.) Id. Because Edwards did not exercise due care for her own safety we hold, as we did in Smith, that “[t]his is a plain, palpable, and indisputable case not calling for resolution by a jury.” (Citations and punctuation omitted.) Id. See also Foodmax v. Terry, 210 Ga. App. 511, 513 (2) (436 SE2d 725) (1993) (denial of summary judgment for defendant reversed where plaintiff could have seen hazardous condition had she looked).

Decided November 23, 1994.

Jack F. Witcher, Sherrod & Bernard, John W. Sherrod, for appellant.

McLain & Merritt, Howard M. Lessinger, for appellee.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A1449.
    STOWERS v. THE STATE.
    (449 SE2d 690)
   Ruffin, Judge.

Ricky Stowers was convicted of two counts of rape, two counts of aggravated child molestation, two counts of aggravated sodomy, and three counts of child molestation as the result of acts committed against three of his daughters. He appeals from the entry of the judgment of conviction and sentence.

1. Stowers enumerates as error the trial court’s denial of his motion for funds for psychological examinations, including a penile plethysmograph. In its order, the trial court indicated that while evidence of such is not reflected in the record, Stowers represented to the court that a penile plethysmograph would be used to measure his physical responses to sexual stimuli. Relying on Knight v. State, 206 Ga. App. 529 (426 SE2d 1) (1992) and Jennette v. State, 197 Ga. App. 580 (3) (398 SE2d 734) (1990), the court concluded that since that test and the psychological testing sought by Stowers would ultimately be intended to show whether it was likely that Stowers committed the alleged offenses, the motion should be denied as such evidence would be inadmissible at trial. The court also concluded that without further information, it could not determine whether the penile plethysmograph has reached a scientific state of verifiable certainty.

Stowers argues, contrary to our decisions in Knight, supra, and Jennette, supra, that the results of such testing should nonetheless have been admissible as expert opinion evidence concerning his psychological traits relative to the issue of his propensity to commit the crimes charged. However, the record contains no evidence demonstrating that the psychological tests will produce evidence which is beyond the ken of the average juror and therefore admissible as expert testimony. Collar v. State, 206 Ga. App. 448 (2) (426 SE2d 43) (1992). Nor is there evidence of the scientific validity of the tests. Id. at 449. Accordingly, this enumeration is without merit.

2. Stowers also contends the trial court erred in denying his motion to sever for trial two counts of aggravated assault against two of his daughters, charges of which he was acquitted by the jury. Stowers argues that the aggravated assault charges and the sex crimes were not of the same or similar character and were not shown to be a part of a scheme or plan or series of acts connected together. Stowers maintains that although he was acquitted of the offenses, he was nonetheless harmed by the court’s failure to sever because the acquittals could have been the product of compromise.

Separate offenses may be joined in a single indictment “where they ‘ “(a) are of the same or similar character, even if not part of a single scheme or plan; or (b) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.’” [Cit.]” Thompson v. State, 181 Ga. App. 163, 165 (351 SE2d 483) (1986). In denying Stowers’ motion to sever, the trial court found that the alleged assaults occurred in the same time frame as the sex crimes and thus could have been related in that they may have shown an attempt to intimidate the victims into submitting to sexual abuse or to prevent them from reporting it. We agree.

The record shows that between December 1989 and November 1992, Stowers engaged in numerous sexual acts with his four daughters. After molesting two of the girls, Stowers angrily warned them not to tell anyone. He threatened one of the girls that he would kill her if she told. On one occasion, during this same period of time, Stowers tied the girls up with rope in his parents’ basement, gagged their mouths with duct tape, held a gun to their heads, and threatened to kill them if they told anyone. The two aggravated assault charges were based on the alleged acts involving the gun. The act of tying up these victims and threatening them at gunpoint was part and parcel of the abuse heaped on the victims during the limited time span alleged in the indictment, much of which occurred in Stowers’ parents’ home. In addition, the evidence supports the trial court’s conclusion that Stowers’ threats may have had the effect of intimidating the victims into submitting to further abuse or preventing the victims from reporting the incidents. Thus, we find no error in the joinder of the two aggravated assault counts. Compare Thompson, supra at 165-166.

Decided November 23, 1994.

Neil A. Smith, for appellant.

Lydia J. Sartain, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A2417.
    CHAPMAN v. THE STATE.
    (449 SE2d 903)
   Blackburn, Judge.

Denward Chapman appeals his conviction by a jury of driving under the influence, less safe driver. On appeal, Chapman contends the trial court erred in excluding evidence of Officer Goosman’s professional misconduct.

It is undisputed that at the time of trial, Officer Goosman had resigned from the Hall County Sheriff’s Department, under threat of being fired. During his employment with the Sheriff’s Department, he had been under investigation for sexual misconduct and for an accident in which a pedestrian was struck by his patrol car. The sexual misconduct investigation occurred prior to the actions charged in the indictment, and the other incident occurred afterwards. At trial, Chapman sought to introduce evidence of these investigations against Officer Goosman. The trial court granted the State’s motion in limine to exclude any evidence regarding the investigations.

In the present case, Officer Goosman arrived at the scene of an accident wherein Chapman’s car hit a tractor trailer while the driver of the tractor trailer was attempting to enter the cab of the vehicle. Officer Goosman interviewed Chapman and conducted field sobriety tests. Other officers conducted an investigation of the scene. At trial, Officer Goosman testified as to the results of the field sobriety tests conducted on Chapman.

The trial court determined that evidence of the investigations into Officer Goosman’s conduct was irrelevant in that it was unrelated to the investigation of the charges pending against Chapman. “Generally speaking, questions of relevance are within the domain of the trial court, and, absent a manifest abuse of discretion, a court’s refusal to admit evidence on grounds of lack of relevance will not be disturbed on appeal. The rule is usually stated that the judge may exercise his discretion in excluding relevant evidence if he finds that its probative value is substantially outweighed by the risk that its admission will create substantial danger of undue prejudice or of misleading the jury.” (Punctuation omitted.) Friedman v. Friedman, 259 Ga. 530, 532 (384 SE2d 641) (1989). See also Datz v. State, 210 Ga. App. 517 (7) (436 SE2d 506) (1993).

Decided November 23, 1994.

H. Bradford Morris, Jr., for appellant.

Jerry Rylee, Solicitor, Brett P. Turner, Assistant Solicitor, for appellee.

In the present case, the trial court did not abuse its discretion in limiting Chapman’s cross-examination of Officer Goosman.

Judgment affirmed.

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


author: Johnson, Judge. Beasley, Presiding Judge,

text:
    A94A2544.
    FREEMAN v. THE STATE.
    (450 SE2d 346)
   Johnson, Judge.

A jury found Joseph Anthony Freeman guilty of driving with open containers of alcohol in his vehicle, driving with defective equipment, and driving while his license was suspended. He appeals from his convictions, challenging only the sufficiency of the state’s evidence.

Although the trial was not transcribed, Freeman attempted to perfect the record by preparing a stipulation of the case in accordance with OCGA § 5-6-41 (i). The stipulation was signed by the trial judge in accordance with the statute, but it was not filed in the trial court so that it could be included in the record transmitted to this court. Freeman instead attached the stipulation, along with other exhibits purportedly introduced at trial, to his appellate brief. “There is no authority for counsel to file such a stipulation in this court, and the effort of counsel for the appellant to file such stipulation in this court is a nullity.” Martin v. Dept. of Public Safety, 226 Ga. 723 (2) (177 SE2d 243) (1970). We cannot consider either the stipulation or the additional exhibits which are not part of the official record on appeal. See Dickens v. Calhoun First Nat. Bank, 208 Ga. App. 489, 490 (1) (431 SE2d 121) (1993). Where there is no transcript, an appellate court is bound to assume that the trial court’s findings are supported by sufficient competent evidence. Nalley v. State, 147 Ga. App. 634, 635 (249 SE2d 685) (1978). Accordingly, Freeman’s convictions must be affirmed.

Decided November 23, 1994.

Lee Sexton & Associates, Donna R. Sims, for appellant.

Keith C. Martin, Solicitor, Michael P. Baird, Assistant Solicitor, for appellee.

Judgment affirmed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Andrews, Blackburn, Smith and Ruffin, JJ., concur. Beasley, P. J., dissents.

Beasley, Presiding Judge,

dissenting.

I respectfully dissent. Martin v. Dept. of Public Safety, 226 Ga. 723 (2) (177 SE2d 243) (1970), merely holds that the attempted filing of the stipulation in the appellate court is a nullity. The rules of appellate procedure require that the stipulation be filed with the clerk and sent up in lieu of a transcript. OCGA § 5-6-41 (i).

It would be a simple matter to return appellant’s brief, to which is attached the original stipulation of facts signed by the trial judge and both parties as well as the original exhibits, with an order that the stipulation and exhibits be filed in the trial court and transmitted by the clerk as a supplemental record. If this were done, we could reach the merits of the appeal, as we are required to do by OCGA § 5-6-30. We are expressly authorized to take such action. OCGA § 5-6-48 (d).

This is not a case in which something is missing which bars our review. That was the omission in Dickens v. Calhoun First Nat. Bank, 208 Ga. App. 489, 490 (1) (431 SE2d 121) (1993), rev’d on other grounds, Calhoun First Nat. Bank v. Dickens, 264 Ga. 285 (443 SE2d 837) (1994). Nor is it a case in which the absence of a transcript or substitute precludes review of the error enumerated. That was the deficiency in Nalley v. State, 147 Ga. App. 634 (249 SE2d 685) (1978). In this case, there are documents, carefully prepared, which comprise the record needed for consideration of the errors claimed; they simply were misrouted.


author: McMurray, Presiding Judge.

text:
    A94A1198.
    HOWARD v. THE STATE.
    (450 SE2d 824)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of forgery in the first degree. This appeal followed the denial of his motion for new trial. Held:

1. Defendant contends the evidence is insufficient to support the jury’s verdict. We do not agree.

Teresa Lynn Coker testified that at 1:00 in the afternoon on February 17, 1993, while working as a teller at a NationsBank office in Athens, Georgia, Blendora Brooks (a/k/a Blendnora Brooks) presented her with a $1,800 check drawn on the account of a local law firm, “Scott and Quarterman.” Ms. Coker testified that she did not have authority to honor such a large check without approval so she took the check to her supervisor, Lenelle Mauldin. Ms. Mauldin testified that she did not recognize the signature on the check; that she contacted personnel at the law firm of “Scott and Quarterman” and that she then discovered that the $1,800 check was no good. Ms. Mauldin testified that she advised the bank’s manager and that the manager contacted the police. Ms. Coker testified that while Ms. Mauldin was verifying the check, Brooks told her “that she had someone illegally parked outside and that she would be back in just a moment, she had to go get them to tell them it was taking longer than what she thought.”

Bicycle Patrol Officer Jim Schultz of the Athens-Clarke County Police Department testified that he and his partner, Bicycle Patrol Officer Chris Myllo, responded to the reported crime; that Brooks was standing outside the bank when he and Officer Myllo arrived on the scene and that “she stated that she was waiting for her ride out there.” Officer Schultz testified that Brooks then pointed to a passing car and stated, “‘That’s my ride right there.’” Officer Schultz explained that the suspect vehicle was not responsive to his hand and voice signals, but that the vehicle stopped (upon a second pass by the bank) when Patrol Officer David Painter of the Athens-Clarke County Police Department signaled for the vehicle to stop.

Officer Painter testified that Brooks informed him that a man in the suspect vehicle (defendant) instructed her to present the forged check for payment; that defendant had more blank checks in the suspect vehicle and that he then observed a man (Everton Chambers) in the driver’s seat of the suspect vehicle and defendant in the rear seat of the vehicle. Officer Schultz testified that, as he approached the suspect vehicle, he noticed defendant’s hand tucked in the “crease” where the “long [rear] bench type seat” cushions join. Officer Painter testified that he instructed defendant to remove his hand from the seat and that he then lifted the cushion of the rear seat and found three blank checks under the seat (directly under the area where defendant was seated) with the inscription, “HOWARD TATE SCOTT RENTAL ACCOUNT.” Attorney Howard Scott testified that these blank checks as well as the $1,800 check presented by Brooks were taken from his law office (“Scott and Quarterman”) during a burglary the night before Brooks presented the $1,800 for payment. Attorney Scott testified that his signature had been forged on the check. This testimony and testimony of Blendora Brooks that she and defendant jointly planned and executed the crime charged is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of being a party to the crime of forgery in the first degree. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); McGowan v. State, 173 Ga. App. 438, 439 (5), 440 (326 SE2d 805).

Decided October 7, 1994.

William R. Softer, for appellant.

Hack Howard, pro se.

Harry N. Gordon, District Attorney, Richard L. Dickson, Assistant District Attorney, for appellee.

2. Defendant also enumerates error with regard to the trial court ruling allowing the State to present evidence of his participation in two prior similar acts of forgery in the first degree.

Pretermitting the substance of defendant’s claims in this enumeration, “ ‘an erroneous admission of “other transaction” evidence may be harmless.’ (Emphasis omitted.) Faison v. State, 199 Ga. App. 447, 449 (1) (405 SE2d 277) (1991). See also Stephens v. State, [261 Ga. 467, 468 (6), 469 (405 SE2d 483)]; Little v. State, [202 Ga. App. 7 (1), 8 (413 SE2d 496). In the case sub judice,] evidence of [defendant’s] guilt was overwhelming and ‘error, if any, in the admission of [his] prior [participation in similar acts of forgery in the first degree] would “not mandate a reversal because it is highly probable that that error did not contribute to the guilty verdict. (Cit.)” (Cit.)’ Johnson v. State, 204 Ga. App. 246 (4) (419 SE2d 107) (1992). Compare Beasley v. State, [204 Ga. App. 214, 217 (3) (419 SE2d 92)].” Wheat v. State, 205 Ga. App. 388 (2), 389 (422 SE2d 559).

Judgment affirmed.

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