text:
    A92A1058.
    DEARING & DEARING ENTERPRISES, INC. et al. v. A. R. III, INC.
    (422 SE2d 284)
   Carley, Presiding Judge.

Appellee-plaintiff brought suit, seeking to recover the unpaid principal balance due on a promissory note, pre-judgment interest and attorney’s fees. Appellant-defendants answered and counterclaimed, seeking to recover for fraud. The case was tried before a jury and a verdict in favor of appellee was returned on both the main action and the counterclaim. Appellants’ motion for a new trial was denied, but the trial court, finding that the jury had miscalculated the amount of recoverable pre-judgment interest, ordered a write-off of a portion of the verdict as to that element of damages. The judgment was amended to reflect the partial write-off of pre-judgment interest and appellants appeal from that amended judgment.

1. Having found that the verdict as to pre-judgment interest was excessive, the trial court was not required to grant appellants’ motion for new trial. A trial court is authorized to order a write-off as to that portion of a verdict which it finds to be illegal. See Kimble v. Kimble, 240 Ga. 100, 101 (2) (239 SE2d 676) (1977); Plaza Pontiac v. Shaw, 158 Ga. App. 799, 802 (6) (282 SE2d 383) (1981). Appellants contend, however, that the trial court erred in its recalculation of the amount of recoverable pre-judgment interest and that the partial write-off as to that element of damages should actually be greater than that which was ordered by the trial court.

Decided September 8, 1992.

Adele P. Grubbs, W. Allen Separk, for appellants.

Freisem, Swann & Malone, John A. Swann, for appellee.

The promissory note provided for the payment of monthly installments of principal and interest based upon an annual rate of 10 percent interest and appellee sought to recover pre-judgment interest at that annual rate. It appears that the jury’s award was based upon a 12 percent rather than 10 percent rate of interest and that the trial court recalculated the amount of recoverable pre-judgment interest based upon a compound, rather than simple, annual interest rate of 10 percent. In entering the judgment which had the effect of writing off unauthorized interest, the trial court did not err. “A transaction which calls for the payment of the principal at a certain time and payment of interest at certain fixed times during the period that the principal is to run is a valid transaction. The interest may be paid annually, semi-annually, quarterly, or monthly, or in even lesser periods, if the parties see fit so to contract; and the failure to pay any interest which is past due under such stipulation would render such past due indebtedness a liquidated demand, which would itself bear interest. [Cits.]” (Emphasis supplied.) Union Savings Bank &c. Co. v. Dottenheim, 107 Ga. 606, 614 (1) (34 SE 217) (1899). See also Byrd v. Prudential Ins. Co., 185 Ga. 625, 627 (5) (196 SE 72) (1938); Ashford v. Traylor, 43 Ga. App. 507 (2) (159 SE 777) (1931).

2. The promissory note provided for attorney’s fees of “fifteen percent (15%) of the principal and interest. . . .” (Emphasis supplied.) The jury’s verdict for attorney’s fees was based upon 15 percent of the principal and the excessive pre-judgment interest that it had awarded to appellee. Although the trial court correctly ordered a write-off of the excessive portion of the jury’s award of pre-judgment interest, it did not recalculate the amount of recoverable attorney’s fees based upon 15 percent of the principal and the reduced award of pre-judgment interest. Accordingly, the trial court is directed to do so, whereupon it will then order a write-off of that portion of the jury’s award of attorney’s fees which is excessive and enter an amended judgment to reflect that partial write-off of attorney’s fees.

3. Appellant’s remaining enumerations of error have been considered and none has been found to warrant reversal.

Judgment affirmed with direction.

Pope and Johnson, JJ., concur.


source: Caselaw Access Project

author: Carley, Presiding Judge.

license: Public Domain

text:
    A92A1103, A92A1104.
    WHEAT v. THE STATE (two cases).
    (422 SE2d 559)
   Carley, Presiding Judge.

Appellants Annie and Anthony Wheat, who are mother and son, were tried jointly before a jury and found guilty of possession of cocaine. Separate notices of appeal were filed from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts of guilt. The two cases are hereby consolidated for appellate disposition in this single opinion.

1. Annie Wheat enumerates the general grounds.

The evidence, when construed most strongly to support the verdict, shows the following: During the execution of a search warrant, an officer discovered Annie Wheat alone in her bed. She appeared to be emptying something under the covers. When she arose, she had an empty bottle in her hand. Cocaine was found under the covers of the bed. Anthony Wheat’s testimony at trial was inculpatory of his mother. His pre-trial statements were inculpatory of himself, but not exculpatory of his mother. In those pre-trial statements, he merely claimed that the cocaine was his and not his mother’s. However, it was possession of the cocaine, not ownership, that was at issue. Annie Wheat did not testify in her own defense and deny under oath that, at the time of the execution of the search warrant, she had not been in actual possession of the cocaine.

The evidence was more than sufficient to authorize any rational trior of fact to find proof of Annie Wheat’s guilt of possession of cocaine beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Both appellants had previous convictions. Citing Stephens v. State, 261 Ga. 467, 469 (6) (405 SE2d 483) (1991) and Williams v. State, 261 Ga. 640, 642-643 (2c, d) (409 SE2d 649) (1991), they enumerate as error the admission of evidence of those prior convictions.

As to Anthony Wheat, the record shows that the issue of whether the admission of his prior convictions was erroneous under Stephens and Williams was not preserved for appellate review. McGaha v. State, 204 Ga. App. 248 (418 SE2d 802) (1992); Randolph v. State, 203 Ga. App. 115 (1) (416 SE2d 117) (1991); Hunter v. State, 202 Ga. App. 195, 196 (3) (413 SE2d 526) (1991).

As to Annie Wheat, there was a sufficient objection to the showing of the similarity of her prior convictions for possession of marijuana with intent to distribute and for possession of cocaine. The State urges that there was no error in admitting only a certified copy of her indictment and guilty plea as to those crimes, since the face of the indictment shows that those crimes were also for possession of drugs and that they had been committed in the same county within the previous three years. See Moore v. State, 202 Ga. App. 476, 479 (2b) (414 SE2d 705) (1992); Banks v. State, 201 Ga. App. 266, 268 (1) (410 SE2d 818) (1991). Compare Beasley v. State, 204 Ga. App. 214, 217 (3) (419 SE2d 92) (1992); Little v. State, 202 Ga. App. 7 (1) (413 SE2d 496) (1991).

Decided September 8, 1992.

Grantham & Peterson, Elizabeth W. McBride, for appellant (case no. A92A1103).

Robert L. Wadkins, for appellant (case no. A92A1104).

Douglas C. Pullen, District Attorney, Edward F. Berry, Assistant District Attorney, for appellee.

However, we need not decide whether the face of the indictment was sufficient to demonstrate the similarity between Annie Wheat’s alleged instant possession of cocaine and her prior convictions for possession of drugs. Even assuming that it was error to admit the certified copy of the indictment without any additional showing of similarity, it is clear that “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, supra at 469 (6); Little v. State, supra at 8 (1). As noted in Division 1, the evidence of Annie Wheat’s guilt of possessing cocaine was uncontroverted and any dispute as to ownership of the cocaine would be immaterial. The evidence of her guilt was overwhelming and “error, if any, in the admission of [her] prior convictionfs] 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, supra at 217 (3).

3. Pursuant to appellants’ motion under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), the trial court required the State to explain its use of peremptory strikes. The State cited the unemployment of two prospective jurors as its explanation for striking them. Contrary to appellants’ assertions on appeal, the trial court was authorized to find this to be a sufficiently neutral, legitimate and nondiscriminatory explanation. Evans v. State, 183 Ga. App. 436, 440 (3) (359 SE2d 174) (1987). See also Hillman v. State, 184 Ga. App. 712, 713 (1) (362 SE2d 417) (1987). “ ‘The trial court’s findings are, of course, entitled to “great deference,” (cit.), and will be affirmed unless clearly erroneous.’ [Cit.]” Bess v. State, 187 Ga. App. 185, 186 (1) (369 SE2d 784) (1988). Accordingly, there was no error in the trial court’s disposition of appellants’ Batson motion.

Judgments affirmed.

Pope and Johnson, JJ., concur.


author: Johnson, Judge.

text:
    A92A1106, A92A1107, A92A1108.
    TAYLOR v. McCLENDON (three cases).
    (422 SE2d 440)
   Johnson, Judge.

Betty Jo Taylor brought suit against John S. McClendon, Jr., individually and on behalf of her two minor children, Michael Taylor and Kimberly Taylor in separate actions for damages sustained as a result of a rear-end automobile collision. The three cases were consolidated by consent and a jury returned a verdict in favor of McClendon in all three actions. Motions for a new trial were denied. Taylor appeals.

Case No. A92A1106

1. Having reviewed the entire record in this case, we find that the evidence supports the judgment, that no reversible error of law appears, and an opinion would have no precedential value. Therefore, the judgment is affirmed in accordance with Court of Appeals Rule 36.

Case Nos. A92A1107 and A92A1108

The enumerations of error and argument asserted in these two cases are identical. Therefore they will be treated together.

2. Taylor asserts on behalf of both of her minor children that the trial court erred in refusing to grant their motions for directed verdict on the issue of liability. It is argued that since no negligence can be imputed to a child passenger, the children were entitled to a directed verdict on the issue of liability. Taylor relies on Fallaw v. Hobbs, 113 Ga. App. 181 (147 SE2d 517) (1966) which held “[T]he negligence of a parent in driving an automobile in which the child is riding cannot be imputed to the child. (Cits.)” Id. at 182. It does not follow, as Taylor argues, that McClendon was liable simply because Michael or Kimberly were not negligent. If the defendant was shown to be negligent it might be possible to assert that the mother-driver’s comparative negligence should not reduce an award to either of the children, but that is not the argument here on appeal. Taylor’s argument overlooks the principle that liability in tort does not arise unless there is present both negligence and proximate cause. While the mother’s negligence could not be imputed to her children as guest passengers for contributory negligence purposes, the jury could well conclude from the evidence in this case that her negligence was the sole proximate cause of the children’s injuries, thereby precluding their recovery against McClendon. “Questions of negligence, diligence, contributory negligence and proximate cause are peculiarly matters for the jury, and a court should not take the place of the jury in solving them, except in plain and indisputable cases. (Cit.)” Showalter v. Villa Prado Assoc., 182 Ga. App. 705 (356 SE2d 895) (1987). In Atlanta Coca-Cola Bottling v. Jones, 236 Ga. 448 (224 SE2d 25) (1976) the Supreme Court held: “In rear-end collision cases the liability, degree of liability, or lack of liability on the part of any involved driver depends upon a factual resolution of the issues of diligence, negligence and proximate cause. The history of the decisions of the Court of Appeals in this type of case since 1965 convinces us that these issues should be resolved ... by the jury and not by trial and appellate judges.” Id. at 451. The trial court properly denied the motions for a directed verdict and allowed the issue of McClendon’s liability to go to the jury.

Decided September 8, 1992.

Jack F. Witcher, Maryellen S. Mitchell, for appellant.

Downey, Cleveland, Parker & Williams, G. Lee Welborn, for appellee.

3. Taylor asserts that it was error to charge the jury on the theories of avoidance and negligence in connection with either of the children’s claims. A careful review of the record reveals that the trial court took special care to instruct the jury with regard to avoidance that “[N]o duty devolves. upon a guest passenger who has no right or duty to control the operation of the automobile ...” and further, “[njegligence of Mrs. Taylor which bars her recovery under this rule (comparative negligence) does not bar recovery of guests in her car, provided they are otherwise entitled to recover.” Therefore we find that the trial court correctly and distinctly charged the jury with respect to the children’s claims.

Judgments affirmed.

Carley, P. J., and Pope, J., concur.


author: Pope, Judge.

text:
    A92A1111.
    VANZANT v. THE STATE.
    (422 SE2d 283)
   Pope, Judge.

Defendant Dimitri Tyron Vanzant was convicted following a jury trial of selling cocaine in violation of the Georgia Controlled Substances Act. We affirm.

Both of defendant’s enumerations of error challenge the trial court’s ruling allowing the State to present evidence of his in-custody statement. The record shows that after he was arrested defendant made the following statement to police: “I have sold crack cocaine in the past but only a few times. The cocaine I did sell belonged to Black (Tommy Welch). I got a little bit of money for selling it . . . for him, I used that money for my kids, I was out of work. Black came to me and asked me to sell crack cocaine for him.” On appeal defendant argues the portion of his statement concerning prior cocaine sales constituted evidence of similar transactions and that the trial court erred in allowing the State to present this evidence because the State failed to give him notice of its intent to introduce evidence of other crimes as required by Uniform Superior Court Rule (USCR) 31.3. Defendant also urges that the trial court’s failure to hold a hearing to determine the admissibility of the evidence in accordance with USCR 31.3 and Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991) constitutes reversible error. Under the facts of this case we find no merit to these contentions.

It is clear that defendant’s reference to past cocaine sales was designed to explain his involvement in the crime charged and was an integral part of his statement to police. “[T]he statements complained of were an integral part of a criminal confession, and such statements are not rendered inadmissible because the language used therein indicates that the accused had committed another and separate offense. [Cits.]” Dampier v. State, 245 Ga. 427, 434 (10) (265 SE2d 565) (1980). “In these circumstances, it is no valid ground of objection to the admission in evidence of an incriminatory statement or confession made by the accused in a criminal case that the language indicated that the accused had committed also another and separate offense. (Cits.) Ingram v. State, 253 Ga. 622, 638 (323 SE2d 801) (1984).” (Punctuation omitted.) Frazier v. State, 257 Ga. 690, 697 (14) (362 SE2d 351) (1987). Accord Burke v. State, 248 Ga. 124, 126 (3) (281 SE2d 607) (1981); Shavers v. State, 200 Ga. App. 76, 77 (2) (406 SE2d 803) (1991); Williams v. State, 192 Ga. App. 317 (384 SE2d 877) (1989); Thomas v. State, 158 Ga. App. 668 (2b) (281 SE2d 646) (1981). Consequently, defendant’s statement that he had sold cocaine on other occasions was admissible “regardless of whether or not the separate crimes to which [the defendant] confessed would otherwise be admissible as exceptions to the ‘other transactions’ rule. [Cit.]” Bradford v. State, 166 Ga. App. 584, 586 (4) (305 SE2d 32) (1983). Cf. Robinson v. State, 192 Ga. App. 32, 33-34 (383 SE2d 593) (1989) (in which the defendant’s statements concerning prior independent crimes “did not constitute an integral part of [the] criminal confession” and was not “an inseparable part of the total oral statement made to [police]”). Defendant’s arguments to this court on appeal are therefore without merit.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.

Decided September 8, 1992.

Vinson, Osborne, Talley & Richardson, James R. Osborne, for appellant.

William A. Foster III, District Attorney, Jeffrey L. Ballew, Assistant District Attorney, for appellee.


author: Cooper, Judge.

text:
    A92A1139.
    ALL SOUTH MINI STORAGE #2, LTD. et al. v. WOODCON CONSTRUCTION SERVICES, INC. et al.
    (422 SE2d 282)
   Cooper, Judge.

Appellees filed an action against appellants for breach of contract, alleging that appellants failed to pay for construction services performed by appellees. Appellants filed an answer and counterclaim against appellees, contending that appellees failed to perform the work in a workmanlike manner. On November 27, 1990, the trial court entered an order directing all parties to appear at a pretrial conference on January 28, 1991. When appellants failed to appear at the scheduled pretrial conference, the trial court entered an order striking appellants’ answer, entering a default judgment against appellants for $17,950 plus interest and attorney fees and dismissing appellants’ counterclaim with prejudice. Appellants appeal from that order, asserting that the trial court abused its discretion in entering a default judgment for appellees and in dismissing appellants’ counterclaim with prejudice.

We first address appellants’ argument that the trial court erred in dismissing their counterclaim with prejudice. “ ‘The authority of the trial court to dismiss [a] plaintiff’s complaint for failure to appear at a pretrial hearing is clearly established by OCGA § 9-11-41 (b) and Weeks v. Weeks, 243 Ga. 416 (254 SE2d 366).’ [Cit.] ‘An order of dismissal for failure to appear is discretionary with the trial court and is not subject to review by this court in the absence of an abuse of that discretion.’ [Cit.]” Peachtree Winfrey Assoc. v. Gwinnett County Bd. of Tax Assessors, 197 Ga. App. 226 (398 SE2d 253) (1990). However, a dismissal for failure to prosecute does not operate as an adjudication on the merits. OCGA § 9-11-41 (b) (1). Therefore, a dismissal for failure to prosecute must be without prejudice, and the trial court abused its discretion in dismissing with prejudice appellants’ counterclaim. Leach v. Aetna Cas. &c. Co., 172 Ga. App. 785 (324 SE2d 494) (1984).

We next address appellants’ argument that the trial court erred in striking their answer and entering a default judgment in favor of appellees. Appellants contend that this sanction was unduly harsh. We agree. In Ambler v. Archer, 230 Ga. 281 (196 SE2d 858) (1973), the Supreme Court of Georgia discussed the issue of the appropriate sanctions for failure to comply with a pretrial order. The Supreme Court stated: “[T]he real question presented is what sanctions should attach to disobedience of the order of the court directing the parties to agree on a pre-trial order, or upon the failure of counsel to attend a pre-trial conference previously set by order of the court, and participate in the making of the pre-trial order which was finally entered. It, undoubtedly, must lie within the power of the court to impose appropriate sanctions to make effective its pre-trial orders. . . . ‘Contempt may at times be proper; and in an extreme case the plaintiff’s action may be dismissed or the defendant precluded from introducing evidence relating to his defense, but these remedies are too drastic if less harsh sanctions are appropriate. [Cit.]’ ” (Indention omitted.) Id. at 288-289. It is undisputed that appellants were aware of the order requiring their appearance at the pre-trial conference and participation in the formulation of a pretrial order. However, it appears that “sanctions [were] available which [could have been] used to curb such behavior without preventing a resolution of the case on the merits. The contempt power of the court and the provisions of OCGA § 9-15-14 are illustrative of the array of sanctions available which stop short of foreclosing the presentation of the merits of one side of a controversy.” Carder v. Racine Enterprises, 261 Ga. 142, 144 (401 SE2d 688) (1991). We conclude as in Ambler and Carder that the sanction imposed for appellants’ failure to appear at a pretrial conference was too harsh.

Decided September 8, 1992.

Dana A. Azar, for appellants.

Cornelison & Associates, Rex P. Cornelison III, for appellees.

Judgment reversed.

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

       We also note that appellees moved for an order directing the parties to appear at a pretrial conference after they were notified of appellants’ counsel’s intent to withdraw from the case and that the order allowing appellants’ counsel to withdraw was entered one day before the order directing the parties to appear at a pretrial conference.


text:
    A92A1212.
    DAWSON v. THE STATE.
    (422 SE2d 280)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of possession of cocaine with intent to distribute. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict.

1. The general grounds are without merit. The evidence was sufficient to authorize any rational trior of fact to find proof of appellant’s guilt beyond a reasonablé doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Over objection, an officer was allowed to testify as to the circumstances which eventually culminated in his arrest of appellant. According to the officer, he received information from an unidentified informant that “there was a subject” at a specified location who was wearing “a yellow and black jacket” and “was selling drugs. . . .” Based upon that information, the officer went to the location and observed appellant, who was wearing a yellow and black jacket. When the officer saw appellant abandon a plastic bag, the officer retrieved the bag and discovered that it contained 82 individual packages of cocaine. As the result of that discovery, the officer arrested appellant. At the time of his arrest, appellant had $85 on his person.

Appellant urges that the officer’s testimony regarding the information that had been supplied to him by the unidentified informant was inadmissible under Momon v. State, 249 Ga. 865 (294 SE2d 482) (1982). The State contends that the testimony was admissible to explain the officer’s conduct immediately prior to the arrest. “The facts and circumstances surrounding the arrest of a defendant have been held to be relevant and admissible during the trial of a criminal case. [Cit.] [If] the statement explained the circumstances of the arrest it would meet the original evidence requirements of OCGA § 24-3-2 ([cit.]).” Ivester v. State, 252 Ga. 333, 335 (2) (313 SE2d 674) (1984). See also Anderson v. State, 247 Ga. 397 (1) (276 SE2d 603) (1981); Matthews v. State, 194 Ga. App. 386, 387 (2a) (390 SE2d 873) (1990); Warren v. State, 179 Ga. App. 890 (1) (348 SE2d 88) (1986); Rhine v. State, 176 Ga. App. 171, 172 (1) (335 SE2d 422) (1985). Compare Assad v. State, 195 Ga. App. 692, 693 (2) (394 SE2d 617) (1990); Osborne v. State, 193 Ga. App. 276, 277 (3) (387 SE2d 383) (1989); and Hart v. State, 174 Ga. App. 134 (1) (329 SE2d 178) (1985) (wherein the testimony did not relate to the officer’s immediate pre-arrest conduct). But see Black v. State, 190 Ga. App. 137 (1) (378 SE2d 342) (1989).

However, we need not decide whether, in the instant case, the officer’s testimony was inadmissible under Momon or admissible under Ivester. Even assuming that the testimony should have been excluded, its admission was nevertheless clearly harmless. “[I]n light of the [officer’s] testimony that [he] saw appellant in sole possession of the plastic bag containing cocaine, it is ‘more than highly probable that its admission did not contribute to the verdict. (Cit.)’ [Cit.]” Black v. State, supra at 137-138 (1).

Decided September 8, 1992.

J. Douglas Willix, for appellant.

Lewis R. Slaton, District Attorney, A. Thomas Jones, Penny A. Penn, Assistant District Attorneys, for appellee.

Citing Anderson v. State, 252 Ga. 103 (312 SE2d 113) (1984), appellant urges that, even if the testimony was admissible to explain the officer’s conduct in arresting him for possession of cocaine, it was inadmissible insofar as it placed his character for selling cocaine into evidence. “The general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.” (Emphasis supplied.) OCGA § 24-2-2. Unlike Anderson, the officer’s testimony arguably did not relate to any other irrelevant transaction, but to the immediate relevant circumstances surrounding appellant’s arrest for the instant crime of possessing cocaine with intent to distribute. “Where evidence may incidentally put character in issue or be prejudicial it may be admitted if otherwise relevant. [Cits.]” Ivester v. State, supra at 336 (2).

However, we likewise need not decide whether, in the instant case, the officer’s testimony was inadmissible under Anderson or admissible under Ivester. Even assuming that the testimony should have been excluded, its admission was nevertheless clearly harmless. Considering the amount of cocaine that was found in the plastic bag and the manner in which it was packaged, the only reasonable inference was that whoever possessed that plastic bag had been engaged in the sale of cocaine. Accordingly, the officer’s hearsay testimony regarding the information which had prompted him to begin his observation of appellant is no more indicative of appellant’s intent to sell cocaine than the officer’s direct testimony regarding his observation of appellant’s possession of the plastic bag containing 82 individual packages of cocaine. Evidence that the officer merely had been told that an otherwise unidentified individual wearing a yellow and black jacket was selling drugs at a designated location could not have contributed to the jury’s conclusion that it was appellant who possessed the plastic bag containing 82 individual packages of cocaine. See Black v. State, supra at 137-138 (1).

Judgment affirmed.

Pope and Johnson, JJ., concur.


text:
    A92A1252, A92A1253, A92A1254.
    WILLIAMS v. THE STATE (three cases).
    (422 SE2d 438)
   Pope, Judge.

Defendant Darrell Williams was convicted of four criminal offenses pursuant to three separate trials. He appeals each conviction and we have consolidated the appeals for purposes of this opinion.

Case No. A92A1252

In this case, defendant was convicted of the burglary of a residence in Bulloch County. The evidence presented at trial shows the burglary occurred on August 23, 1988. On August 25, while police conducted a search of the house in which defendant lived, for reasons unrelated to the burglary, they discovered in defendant’s bedroom several items of jewelry which were taken in the burglary. After being duly informed of his rights, defendant denied committing the burglary and explained he received the jewelry from some boys in the street. Several weeks later he voluntarily stated to the investigating officer that he had been at the house at the time of the burglary but he did not go into the house.

1. Defendant argues the evidence was insufficient to sustain his conviction and the trial court erred in denying his motion for directed verdict. “ ‘The rule has been long established in this state that where a theft, whether by simple larceny, burglary, or robbery, is proven, that recent unexplained possession of the stolen goods by the defendant creates an inference or presumption of fact sufficient to convict.’ . . . [W]hether or not a defendant’s explanation of his possession of the stolen property was satisfactory or reasonable is a question for the jury. [Cit.]” Brown v. State, 157 Ga. App. 473, 474 (1) (278 SE2d 31) (1981). “ ‘Mere presence at the scene of a crime is insufficient to convict one of being a party to the crime, but presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.’ [Cit.]” Lunz v. State, 174 Ga. App. 893, 895 (1) (332 SE2d 37) (1985). Here, the defendant’s admission of presence at the scene of the burglary in conjunction with his possession of recently stolen goods, which the jury could find was unsatisfactorily explained, was sufficient to support the conviction as a party to the crime.

2. Because of our holding above, we reject defendant’s argument that the trial court erred in charging the jury on the law of conviction as a party to a crime.

Case No. A92A1253

3. In this case, defendant was convicted of aggravated assault and possession of a firearm by a convicted felon arising out of a shooting incident which occurred on March 4, 1990, in Statesboro. Both the victim who was assaulted and an eyewitness testified that defendant shot at the victim several times with a .22 calibre weapon. We reject defendant’s argument that the testimony concerning the particular weapon used by the defendant creates an inconsistency which makes the evidence insufficient to support his conviction. The direct testimony of the witnesses is ample evidence to support the verdict.

4. Defendant argues the trial court committed reversible error in its charge to the jury concerning the difference between the offense of aggravated assault and the lesser included offense of reckless conduct. The charge correctly stated the law and we reject defendant’s argument that the charge unduly stressed the felony with which he was charged over the lesser included offense.

When the jury requested clarification of the difference between aggravated assault and reckless conduct, the trial court indicated in its instruction that aggravated assault is a felony and reckless conduct is a misdemeanor, “which is a less serious crime than a felony.” Defendant argues this improperly injected punishment as an issue in the case. The charge, however, did not inform the jury of the possible punishments for either offense. “Although the characterization should not have been made, the court’s instructions to the jury must be considered as a whole to determine whether there was reversible error. . . . [S]imple battery was being charged here as a ‘lesser included’ offense of aggravated assault, and the jury was so informed without objection. Thus the relative severity of punishment was already clearly implied, as a matter of common sense. To reverse because the judge labeled one crime a ‘misdemeanor’ when the jury knew that it was a ‘lesser offense’ and that it was ‘simple’ as opposed to ‘aggravated’ would be to ignore the obvious.” Cater v. State, 176 Ga. App. 388, 389 (336 SE2d 314) (1985).

Case No. A92A1254

5. In this case defendant was convicted of escape from the county jail where he was lawfully confined after conviction of theft by receiving stolen property. The evidence presented at trial shows when the jailer came to serve a meal to the inmates, he was informed that one of the inmates had been accidentally locked into a smaller cell, contained within the large community cell where meals were served, and needed to be let out to eat. The jailer handed defendant the key and asked him to unlock the cell where the inmate was trapped. In addition to carrying out this task, the defendant surreptitiously unlocked the door to a catwalk from which he escaped the next day. Incredibly, defendant claims he was entitled to directed verdict because his testimony that he did not have the idea to escape until he was handed the key established the unrebutted defense of entrapment. He also argues the trial court erred in refusing to charge the jury on the defense of entrapment.

Decided September 8, 1992.

Michael J. Classens, for appellant.

R. Joseph Martin III, District Attorney, Richard A. Mallard, Assistant District Attorney, for appellee.

By statutory definition, entrapment involves conduct which was “induced or solicited by a government officer or employee, or agent of either, for the purpose of obtaining evidence to be used in prosecuting the person for commission of the crime. Entrapment exists where the idea and intention of the commission of the crime originated with a government officer or employee, or agent of either . . . .” OCGA § 16-3-25. The unrebutted testimony of the jailer was that his intention in giving defendant the key was to release the trapped inmate from the accidentally locked cell and that he had no reason to believe the defendant would escape. However unwise the jailer’s act, no evidence was presented to support the defense of entrapment and the trial court did not err in denying defendant’s motion for directed verdict or in refusing to give the jury instructions requested by defendant on his sole defense of entrapment. See Johnson v. State, 246 Ga. 126 (II) (269 SE2d 18) (1980).

6. We also reject defendant’s argument that the trial court erred in admitting into evidence certified copies of defendant’s conviction and sentence for two counts of theft by receiving stolen property, battery and a previous conviction for escape. The indictment in this case charged defendant with escape “after having been convicted of the offense of theft by receiving stolen property (two counts) and escape . . . .” It is not error to admit evidence of prior convictions in a trial for the offense of escape since proof of lawful confinement, and in this case, proof of the specific facts alleged in the indictment, is a necessary element of proving the crime. See Ingram v. State, 237 Ga. 613 (2) (229 SE2d 416) (1976). That defendant stipulated that he was confined as a result of a revocation of his parole did not make it unnecessary to prove the facts of the specific convictions because the indictment alleged not simply that defendant escaped from lawful confinement but that he had been confined as a result of these specific convictions.

Judgments affirmed.

Johnson, J., concurs. Carley, P. J., concurs in Divisions 1, 2, 3, 4, 5 and in judgment.


text:
    A92A1262.
    BRIDGES v. RELIANCE TRUST COMPANY.
    (422 SE2d 277)
   Pope, Judge.

Defendant Leon G. Bridges (hereafter “borrower”), jointly with another defendant who is not a party to this appeal, obtained two construction loans from plaintiff Reliance Trust Company (hereafter “lender”). Each loan was in the amount of $175,000 and was for the purpose of constructing one of two 5,000 square foot commercial buildings on land in Cobb County. The loans documents stipulated that the construction was to be made in accordance with the plans and specifications submitted to the lender. After the loans were executed and certain improvements had been made to the land in anticipation of construction of the buildings, the borrower learned that the county would not grant building permits for the planned 5,000 square foot buildings. Instead, development of the land would require the construction of buildings approximately twice as large and twice as costly as those originally planned and specified in the loan agreements. Consequently, few if any requests for advances were made against the loans during the first year and five months after the loans were executed.

When these circumstances were explained to the officer handling the loans for the lender, the borrower claims the officer nevertheless agreed to make advances on the loans without regard to the original plans and specifications so that the borrower could commence construction of the larger buildings. He claims he explained that he could not construct the larger buildings without additional loan funds and that the officer assured him “something will be worked out.” Advances were then made to the full amount of the loans and the buildings were partially constructed but no additional funds were offered to the borrower.

The borrower defaulted on the loans, and the lender filed this action to recover the amounts due under the loans. The borrower answered and filed a counterclaim alleging the lender breached its agreement to extend the additional loan. The trial court granted summary judgment to the lender on its claim and on the borrower’s counterclaim. The borrower appeals.

1. First, we address the borrower’s argument that the trial court erred in granting summary judgment to the lender on its complaint for default of the two loans. According to the borrower, issues remain to be tried on his defenses of estoppel, fraud, mistake, setoff, impossibility, illegality and novation. First, we note that the defenses of fraud and illegality are affirmative defenses which, pursuant to Section 8 (c) of the Civil Practice Act, must be expressly pleaded. The borrower waived these defenses because they were not pleaded in his answer. The borrower did plead the affirmative defenses of estoppel and setoff.

As will be discussed in Division 2, we hold that the trial court properly granted summary judgment on the defense of setoff. Summary judgment was also correctly granted to the lender on the borrower’s remaining defenses. “A lender’s refusal to make a second loan, or even misrepresentations that it would make a second loan, does not bar the lender from recovery of the amount owed under the first loan.” Rizk v. Jones, 148 Ga. App. 473, 474 (251 SE2d 360) (1978), aff’d, 243 Ga. 545 (255 SE2d 19) (1979). Accord Hartrampf v. C & S Realty Investors, 157 Ga. App. 879 (278 SE2d 750) (1981); Bonner v. Wachovia Mtg. Co., 142 Ga. App. 748 (1) (236 SE2d 877) (1977).

We note, however, that part of the amount claimed as due under each loan was a renewal fee. The record does not support the grant of judgment to the lender for this amount because, although both loans were renewed several times before they were declared in default, each renewal document recited that it was the first renewal of the loan and stated that any subsequent renewal would be subject to a renewal fee. Since the lender waived its right to the renewal fees it could have collected by reciting and acknowledging that the fee would be due only for subsequent renewals, it is not entitled to judgment for any renewal fees. Thus, we affirm the award of summary judgment to the lender except for the amount awarded as renewal fees.

2. Finally, we address the borrower’s argument that the trial court erred in granting summary judgment to the lender on the borrower’s counterclaim for breach of the alleged oral agreement to extend an additional loan to complete the construction of the expanded buildings. We agree with the trial court that enforcement of the alleged oral agreement to make an additional loan is barred by the Statute of Frauds. Pursuant to OCGA § 13-5-30 (7), effective July 1, 1988, any commitment to lend money must be in writing. The borrower argues that a jury issue is created concerning whether the alleged oral agreement was made before or after the effective date of the amendment to the Statute of Frauds. Both the borrower and one of his employees testified, however, that they believed the meeting between the borrower and the lender’s officer, at which the alleged oral agreement was made, occurred in July of 1988. The borrower’s co-defendant also testified that the meeting occurred after building permits were obtained on July 7, 1988.

Moreover, even if a factual issue remains concerning the applicability of the Statute of Frauds to the agreement, the borrower would not be able to prevail on his counterclaim because the alleged oral agreement is unenforceable. By the borrower’s own admission, no definite terms of such a proposed loan were discussed or agreed upon. The facts of this case are similar to those in Hartrampf, supra, in which the lender sued to recover the unpaid balance owing on a note after a foreclosure sale, and the borrower defended the claim and filed a counterclaim based on the allegation that the lender wrongly refused to honor its agreement to extend a second loan. In that case we held: “The purported second loan ‘commitment’ is no more than [the lender’s] agreement to agree in the future. ‘Unless an agreement is reached as to all terms and conditions and nothing is left to future negotiations, a contract to enter into a contract in the future is of no effect.’ ” Hartrampf, 157 Ga. App. at 881. Accord Sierra Assoc. v. Continental Ill. Nat. Bank &c., 169 Ga. App. 784 (1) (315 SE2d 250) (1984). We reject the borrower’s argument that his testimony concerning his assumptions about the terms of the proposed loan creates an issue of fact for the jury. His assumption that the new loan would contain the same terms as the renewals of the existing loans is not only speculative, and therefore incompetent evidence, but is also invalid since the proposed loan was to be a new and different loan and not merely a renewal of the existing loans.

Citing OCGA § 13-5-31 (2) and (3), the borrower argues that even if the amendment to the Statute of Frauds was in effect at the time the alleged agreement was made, it is not applicable to the proposed loan because his performance under the alleged agreement was accepted by the lender and because the lender committed fraud in permitting the borrower to commence construction of two buildings which were not contemplated in the original loan and then refusing to abide by the agreement to lend additional sums to finish the buildings. The performance argument fails because the lender’s decision to make advances under the written loans for construction of buildings not contemplated under the loans does not establish the lender’s intent to waive the requirements of the written loan and proceed under a different oral agreement. Each loan specifies that at the option of the lender, advances may be made even in the event the borrower acts adversely to the terms of the loan without waiving the lender’s right to demand payment or any other provision or obligation of the loan.

The fraud argument also fails because the alleged oral agreement was unenforceably vague. “A parol contract sought to be enforced as within some exception of the Statute of Frauds . . . must be certain and definite in all essential particulars, and if part performance is relied upon to make (it) enforceable, the part performance must be part performance of an essential element of the contract sought to be proved, and of a character which would render it a fraud on the [performing party] if the [other party] refused to comply.” (Punctuation and citations omitted.) Norris v. Downtown LaGrange Dev. Auth., 151 Ga. App. 343, 344 (259 SE2d 729) (1979). This does not mean, however, that the borrower may bootstrap his argument that the Statute of Frauds does not apply to this case on his allegation of fraud because an unenforceably vague promise will not support an action for fraud. “ ‘Although fraud can be predicated on a misrepresentation as to a future event where the defendant knows that the future event will not take place (cits.), fraud cannot be predicated on a promise which is unenforceable at the time it is made (cits.). A promise to make a loan with no specification of the interest rate or maturity date is not enforceable and will not support an action for fraud.’ [Cits.] A promise to make ‘construction loans’ without further particularity does not set forth an enforceable contract.” Reuben v. First Nat. Bank, 146 Ga. App. 864, 866 (247 SE2d 504) (1978). “A promise to make a loan with no specification of the interest rate or maturity date is not enforceable and will not support an action for fraud. [Cits.]” Beasley v. Ponder, 143 Ga. App. 810 (240 SE2d 111) (1977). Neither does the doctrine of promissory estoppel apply to this case because “estoppel applies to representations of past or present facts and not to promises concerning the future, especially where those promises concern unenforceably vague future acts.” Reuben, 146 Ga. App. at 866. Consequently, the trial court did not err in granting summary judgment to the lender on the borrower’s counterclaim to enforce the alleged oral agreement to extend an additional loan.

Decided September 8, 1992.

Peterson, Dillard, Young, Self & Asselin, Louise B. Matte, for appellant.

Parker, Johnson, Cook & Dunleuie, R. Wayne Bond, Christopher W. Derrick, for appellee.

The judgment of the trial court is affirmed with the exception that the trial court is directed to delete from the award that amount awarded as renewal fees, pursuant to our holding in Division 1.

Judgment affirmed with direction.

Carley, P. J., and Johnson, J., concur.


text:
    A92A1310.
    STEPHENS v. THE STATE.
    (422 SE2d 275)
   Pope, Judge.

Appellant/defendant Michael Stephens appeals his conviction for three counts of child molestation, two counts of aggravated child molestation, and two counts of aggravated sodomy. The jury was authorized to find from the evidence presented at trial that defendant’s nine-year-old nephew spent the night with defendant in September 1990. Defendant first showed his nephew magazines containing nude or partially nude women. Defendant then coaxed his nephew into engaging in acts of oral sex and anal sex with him.

Each enumeration of error concerns the State’s introduction of evidence of a similar transaction. The State was allowed to present the testimony of Jimmy Jackson who testified that when he was approximately eight years old and defendant was either thirteen or fourteen years old, defendant attempted to coax Jackson into engaging in an act of oral sex by offering to give Jackson the keys to his motorcycle if he would give him a “blow job.” Jackson refused. That incident occurred approximately ten years before the incident giving rise to defendant’s conviction.

1. Defendant argues there was insufficient similarity between the prior incident and the crime charged. Defendant contends that the span of ten years and his youth at the time of the previous transaction renders the incident with Jackson dissimilar to the crimes charged. As our Supreme Court recently stated in Gilstrap v. State, 261 Ga. 798, 799 (410 SE2d 423) (1991), “Where ‘similar transaction’ evidence has been admissible otherwise, lapses of time of 11 years (Rich v. State, 254 Ga. 11, 14 (1) (325 SE2d 761) (1985)) and of 19 years (Cooper v. State, 173 Ga. App. 254, 255 (325 SE2d 877) (1985)) have not demanded that the evidence was inadmissible.” Accordingly, a lapse of ten years in this case does not render the evidence inadmissible.

We agree, however, that defendant’s youth at the time of the similar transaction should be considered when deciding if the testimony should be admitted to show lustful dispostion and inclination, i.e., bent of mind. Defendant was at least 13 years old at the time he requested Jackson to give him a “blow job.” Defendant obviously realized he was not making a common request of his friend, because he offered Jackson his motorcycle in exchange for a “blow job.” Given defendant’s age and his obvious understanding of the request he made of Jackson, his request was not the faultless act of an innocent child. Accordingly, we hold that neither the defendant’s age at the time of the similar transaction nor the time span between the incidents renders the testimony inadmissible.

2. Defendant posits that the trial court’s findings of sufficient similarity were not supported by the evidence proffered or presented. After careful review of the record, we find this enumeration to be without merit.

3. Defendant argues the trial court erred in admitting the testimony of Jackson because the trial court’s decision was predicated on evidence proffered but not proved at trial. At the hearing held pursuant to Uniform Superior Court Rule 31.3 (B), the prosecutor stated she expected the evidence to show that approximately ten years ago defendant solicited Jackson to engage in an act of sodomy and that defendant later solicited sodomy from Jackson on at least two other occasions. Jackson testified that defendant only solicited him to engage in acts of sodomy on one occasion, although he requested that Jackson give him a “blow job” several times during the attempted solicitation. We do not find that the difference between the proffer of evidence by the prosecutor and the evidence presented at trial constitutes reversible error. The evidence shows defendant only requested his nephew to engage in acts of sodomy on one occasion. The similarities on which the trial court based its ruling are present regardless of the number of occasions that defendant attempted to solicit Jackson to engage in acts of sodomy.

Decided September 8, 1992.

Cook & Palmour, Bobby Lee Cook, Hurley & Hurley, Lynn Q. Hurley, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Mary J. Palumbo, Assistant District Attorney, for appellee.

4. Defendant also argues the trial court erred by failing to make a determination on the record that defendant committed the independent offense concerning Jackson. While we are cognizant that our Supreme Court’s decision in Williams v. State, 261 Ga. 640 (2b) (409 SE2d 649) (1991) contemplates that the trial court will make a determination concerning identity, we hold that the trial court’s failure to do so under the facts of this case is not reversible error. Both Jackson and defendant’s nephew knew him well; therefore, there was no dispute concerning defendant’s identity in the prior similar transaction or in the incident giving rise to this case.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


text:
    A92A1321.
    MADARIS v. PIGGLY WIGGLY SOUTHERN, INC.
    (422 SE2d 273)
   Carley, Presiding Judge.

Appellant-plaintiff brought suit, seeking to recover for injuries sustained when he slipped and fell while walking along a concrete sidewalk on appellee-defendant’s business premises. The case was brought to trial before a jury, but, at the close of appellant’s evidence, the trial court granted appellee’s motion for a directed verdict. Appellant appeals from the judgment entered on the directed verdict.

1. Appellant sought to introduce testimony to the effect that, when applied to concrete sidewalks, “a very simple item like [safety tape] at a very low cost can help insure against falls.” The trial court sustained appellee’s objection to the introduction of this testimony and appellant enumerates this evidentiary ruling as error.

Appellee is not an insurer against the possiblility that its invitees will suffer a fall while on its business premises. “A storekeeper is not liable as an insurer of the safety of persons whom he has invited to enter his premises. He owes them a duty of ordinary care, to have his premises in a reasonably safe condition, not to lead them into a dangerous trap, or to expose them to unreasonable risk, but to give them adequate and timely notice and warning of latent or concealed perils. [Cit.]” Hill v. Davison-Paxon Co., 80 Ga. App. 840, 842 (57 SE2d 680) (1950) Accordingly, it is immaterial that it was possible for appellee to have made its business premises safer for invitees. What is material is whether or not appellee had exercised ordinary care to maintain its business premises in a reasonably safe condition for invitees. “ ‘What the law requires is not warranty of the safety of everybody from everything, but such diligence toward making the store safe as a good business man is in such matters accustomed to use.’ [Cits.]” Alterman Foods v. Ligon, 246 Ga. 620, 624 (272 SE2d 327) (1980).

It follows that the trial court correctly sustained appellee’s objection. The proffered testimony did not demonstrate that, at the time of the fall, appellee’s business premises were not in a reasonably safe condition due to the absence of safety tape on the concrete sidewalk. It merely demonstrated that, through application of safety tape to the concrete sidewalk, appellee could have reduced the risk of an invitee suffering a fall on its business premises. If appellee’s sidewalk was constructed “of a material commonly accepted in the building industry,” the standard of ordinary care had been met. Gibson v. Consolidated Credit Corp., 110 Ga. App. 170 (1) (138 SE2d 77) (1964). The testimony proffered by appellant did not show that, in the building industry, it was the commonly accepted practice to construct concrete sidewalks with safety tape, rather than concrete sidewalks without safety tape.

2. Urging that the issue of appellee’s liability for his fall should have been submitted to the jury, appellant enumerates as error the grant of the motion for a directed verdict.

Although it was raining when appellant fell, the evidence would authorize a finding that he slipped in a greasy substance and not merely on the rain-slick concrete. However, there was no evidence that appellee had any actual knowledge of the presence of the greasy substance on the sidewalk. There was mere speculation, but no evidence, that appellee’s employees were somehow responsible for the actual placement of the greasy substance on the sidewalk. Compare Lam Amusement Co. v. Waddell, 105 Ga. App. 1 (4) (123 SE2d 310) (1961); Colonial Stores v. Scholz, 73 Ga. App. 268 (36 SE2d 189) (1945).

Insofar as appellee’s constructive knowledge is concerned, there was no evidence that there was any employee of appellee in the immediate vicinity who could easily have noticed and removed the greasy substance from the sidewalk. “ ‘ “Thus, (the appellant’s) sole avenue of possible recovery is one in which constructive knowledge on the part of (the appellee) is premised upon (the appellee’s) failure to exercise reasonable care in inspecting and keeping the premises in (a) safe condition. [Cit.]” ’ [Cit.]” Boss v. Food Giant, 193 Ga. App. 434, 436 (388 SE2d 37) (1989). However, “ ‘recovery under that approach requires proof of the length of time the dangerous condition was allowed to exist. [Cits.]’ [Cit.]” Food Giant v. Cooke, 186 Ga. App. 253, 254 (1) (366 SE2d 781) (1988). On motion for summary judgment, the burden would be on appellee to prove the length of time the greasy substance had been present on its sidewalk. See Boss v. Food Giant, supra; Food Giant v. Cooke, supra. At the instant trial, however, the burden as to that issue was upon appellant. A review of the record clearly shows that that burden was not met. It follows that the trial court correctly granted appellee’s motion for a directed verdict.

Decided September 8, 1992.

Beauchamp & Associates, William Eckhardt, for appellant.

Hodges, Erwin, Hedrick & Kraselsky, Kenneth B. Hodges, Jr., David W. Orlowski, Edmund A. Landau III, for appellee.

Judgment affirmed.

Pope and Johnson, JJ., concur.


text:
    A92A1332.
    RODDY v. THE STATE.
    (422 SE2d 271)
   Pope, Judge.

Defendant Charles Roddy was convicted of possession of marijuana with intent to distribute and conspiracy to commit the same crime. He was sentenced only on the conviction on the count charging him with possession with intent to distribute and he appeals.

1. Defendant was arrested at a residence in Cherokee County and detained while one of the arresting officers obtained a search warrant for the premises. In response to defendant’s motion to suppress evidence, the trial judge ruled that defendant’s arrest prior to the discovery of incriminating evidence obtained as a result of the search was without probable cause. Nevertheless, the judge ruled that no evidence was obtained as a result of the illegal arrest and no information gleaned from the arrest was used in obtaining the valid search warrant. Because all evidence in the case was obtained as a result of the valid search warrant and was not obtained incident to the arrest, the motion to suppress was denied. The trial judge noted, however, that any evidence that might have been obtained between the time of the arrest and the time the search warrant was obtained, “such as any statements,” would be suppressed as a result of the illegal arrest.

Decided September 8, 1992.

Howard & Delaney, Stephen A. Delaney, for appellant.

Garry T. Moss, District Attorney, Gregory A. Hicks, Assistant District Attorney, for appellee.

Defendant contends the trial court erred in failing to exclude the identity of the defendant, which, he argues, was made as a result of the illegal arrest and not the search. Defendant testified and admitted he was at the residence at the time the police arrived and thus evidence of his identity need not be suppressed.

2. Citing DiSanti v. State, 190 Ga. App. 331 (378 SE2d 729) (1989), defendant argues the trial court erred in denying his motion to suppress evidence obtained by executing the search warrant because defendant was illegally detained while the warrant was obtained. In DiSanti, however, the illegality of the arrest tainted the subsequent search because the warrant to search the suspect’s automobile could not have been executed had he not been illegally detained while the warrant was being obtained. In this case, however, the trial court properly ruled that no information obtained as a result of the illegal arrest was used by the officers to obtain the search warrant. Instead, the warrant was obtained on the basis of information gathered as a result of surveillance of the premises and information obtained from an informant. Even though the trial court ruled the initial arrest was improper, “that would not require the suppression of drugs found during the search incident to the warrant, since the probable cause for the warrant contained no information from the [arrest] and the evidence sought to be suppressed was seized pursuant to the warrant.” Anderson v. State, 193 Ga. App. 6, 8 (387 SE2d 148) (1989). See also Mack v. State, 189 Ga. App. 261 (2) (375 SE2d 458) (1988).

3. We reject the argument that the conviction must be reversed because defendant may not be convicted both of the conspiracy to commit a criminal act and the commission of the act. The trial court sentenced the defendant only on the conviction of that count of the indictment charging defendant with possession with intent to distribute, not on the count charging him with conspiracy, and thus the sentence is not in error. See Ray v. State, 165 Ga. App. 89 (3) (299 SE2d 584) (1983). Consequently, we also reject the argument that the trial court committed reversible error in failing to instruct the jury that defendant could not be convicted of both counts of the indictment. Moreover, the record shows defendant did not request such a charge and indicated he had no objection to the charges as given.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


author: Beasley, Judge.

text:
    A92A1337.
    A92A1338.
    FREEMAN v. BENTLEY. BENTLEY v. BENTLEY.
    (422 SE2d 435)
   Beasley, Judge.

Pursuant to OCGA § 44-14-230 et seq., Catherine Bentley instituted this action against her former husband, Verney Bentley, and Jimmy Freeman to foreclose a security interest in a 1930 Cord Phaeton automobile. All three parties are aficionados of antique or classic cars.

The Bentleys were divorced in 1986 in Cherokee County. Their divorce decree, which incorporated a settlement agreement, gave Mrs. Bentley a first lien on the automobile as security for Mr. Bentley’s periodic payment of lump-sum alimony. The divorce decree required Mr. Bentley to remove any existing debts against the car and execute any documents deemed necessary by Mrs. Bentley to perfect her security interest. Mrs. Bentley never took steps to perfect her security interest, even though she was told by Mr. Bentley after the divorce that he would make sure she never got the car.

In 1987, Mr. Bentley sold this car to Jefco Leasing Company, through its owner Mr. Freeman, for $15,000. Freeman, who lives in Acworth, testified that he has known Mr. Bentley, who lives in Woodstock, since the late 1970s, which was around the time the Woodstock Road Club was formed. Freeman also had a business dealing with Bentley in Bentley’s capacity as a leasing agent for real property. He had also seen Bentley at Woodstock Rotary Club meetings, but Freeman was not a member. He testified that he and Bentley are casual acquaintances and not social friends, and he was not aware of the Bentleys’ divorce.

Freeman further testified that Bentley offered to sell him the car for $35,000; but the car was disassembled, as it was in the process of being restored, and the engine would not run on all cylinders. They settled on a price of $15,000. Shortly after selling the car to Freeman, Bentley declared bankruptcy. The trustee in bankruptcy obtained from Freeman a copy of the check which he had given to Bentley and the bill of sale. Bentley testified that he sold the car to Freeman for $15,000 because he was destitute, and that was all he could get for it.

Mrs. Bentley testified that the car was a rare and exceptional car, and that it was her and her former husband’s pride and joy. They purchased it from another car enthusiast in 1967 for $5,000, although it was worth more. They drove it for years in its original condition and then began to restore it. In the late 1970s, they were offered $125,000 for it. In her opinion, the car was worth $150,000 to $175,000.

Donald Peterson testified that in 1986 he was employed by Mr. Bentley to appraise the car while it was undergoing restoration. He appraised it at $65,000, but he had been told that the engine needed an overhaul and did not test it. He testified that the fact that a car is disassembled because it is being restored will not appreciably affect its value, so long as it is in good running order and its component parts are available.

Freeman testified that Bentley was supposed to have the car in such condition that it could be moved shortly after the sale, but it remained in Bentley’s possession for over a year. During that time, Bentley continued the restoration. Freeman paid him additional compensation for this, and he has paid a total of $12,000 for restoration since he bought it. In late 1988, Freeman moved the car to Carrollton and from there to a builidng which he owns in Cobb County. An individual hired by Mrs. Bentley and posing as a prospective buyer went to this location and talked to Mr. Bentley there. Bentley stated that the car was his.

Due to its age, the car has never had a certificate of title.

“A title certificate is not required for a pre-1963 automobile; however, the only way to perfect a security interest in any automobile since the enactment of the Uniform Commercial Code is by filing under the Motor Vehicle Certificate of Title Act. [Cits.]” Harper v. Auco Fin. Svcs., 124 Ga. App. 6, 7 (183 SE2d 89) (1971). See OCGA §§ 40-3-4 (17); 11-9-302 (4); 40-3-50. Mrs. Bentley did not follow this procedure, so she had only an unsecured interest.

A failure to perfect a security interest in a motor vehicle pursuant to the certificate of title act does not nullify the security interest, although the unsecured party may lose priority where the rights of third parties are concerned. See Hallman v. State, 141 Ga. App. 527 (1) (233 SE2d 839) (1977); see also Richardson v. Park Ave. Bank, 173 Ga. App. 43 (325 SE2d 455) (1984). When an individual buys goods not in the ordinary course of business, an unperfected security interest is subordinate to the rights of the buyer to the extent that the buyer gives value and receives delivery without knowledge of the security interest and before it is perfected. See OCGA §§ 11-9-301 (1) (c); 11-1-201 (9). “Knowledge of a fact is defined in the Uniform Commerical Code as actual knowledge.” Hopkins v. Kemp Motor Sales, 139 Ga. App. 471, 473 (228 SE2d 607) (1976). OCGA § 11-1-201 (25) (a). Reason to know, a type of notice described in OCGA § 11-1-201 (25) (c), is not enough. See Clarke v. Ingram, 107 Ga. 565, 569 (1) (33 SE 802) (1899).

The trial court, after a bench trial, granted Mrs. Bentley’s request for a writ of possession on the basis of a superior interest but made no finding of any specific amount due on the alimony. As to her interest being superior to Freeman’s, the court found that Mr. Bentley and Freeman were more than casual acquaintances, that Freeman was aware of the recent divorce, that he “more than likely knew” Mrs. Bentley was awarded the interest in the car, that he never searched court records for the divorce decree, that the price paid by Freeman for the car was significantly below its attested value, and that the evidence was sufficient to show that he was not a bona fide purchaser. In the court’s view, the evidence showed circumstantially that Freeman had actual knowledge of Mrs. Bentley’s interest.

After the notice of appeal was filed but before the case was docketed in this Court, Mrs. Bentley sought a supersedeas bond, on grounds that OCGA § 44-14-237 requires a.bond to be posted before property can be moved and Freeman had moved the car outside Cobb County during the pendency of this case. At the hearing on the motion, the court found the car to be valued between $60,000 and $68,000 and set the supersedeas bond at $40,000, stating that this was to ensure that the car would be maintained and not lose its value.

In Case No. A92A1337, Freeman and Jefco have filed an appeal. In Case No. A92A1338, Mr. Bentley has filed an appeal pro se.

1. There is no direct evidence, and insufficient circumstantial evidence for an inference that Freeman had actual knowledge of Mrs. Bentley’s unrecorded and unperfected security interest. See generally OCGA § 24-4-9. Mrs. Bentley failed to record her security interest, and she did not carry her burden of proving that Freeman had actual knowledge of her interest, which was documented only in the divorce decree’s incorporated agreement. Even assuming knowledge of the divorce, the leap from this knowledge to knowledge of the security interest is too great to be accomplished on the strength of tenuous inference.

As to the exchange of value, although the car may have been worth considerably more than Freeman paid for it, he did give value. See OCGA § 11-1-201 (44) (d); Lee v. Palmer, 75 Ga. App. 752, 754 (1) (44 SE2d 516) (1947).

2. OCGA § 5-6-46 (a), not OCGA § 44-14-237, applies to the bond sought after notice of appeal was filed in this case. It generally provides that although the notice of appeal serves as a supersedeas in civil cases, upon motion by the appellee the trial court may require that a supersedeas bond be given. However, the issue is moot and will not be ruled on. Salim v. Salim, 244 Ga. 513, 514 (1) (260 SE2d-894) (1979).

3. Mr. Bentley’s appeal is dismissed pursuant to Rule 14 (a), because he did not comply with the order of this court to file a brief in compliance with Rule 15 (c) (3).

Judgment in Case No. A92A1337 reversed. Appeal in Case No. A92A1338 dismissed.

Decided September 8, 1992.

H. Darrell Greene & Associates, H. Darrell Greene, Paul Shimek III, for appellant.

Verney E. Bentley, Jr., pro se.

Harry W. Krumenauer, for appellee.

Birdsong, P. J., and Andrews, J., concur.


text:
    A92A1346.
    GREEN v. THE STATE.
    (422 SE2d 288)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of selling cocaine. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

Appellant’s sole enumeration of error relates to instances wherein the State allegedly introduced his character into issue.

The undercover officer who made the purchase of cocaine testified as to the events which culminated in that transaction. According to the officer, he was driving through an area known for drug activity when he observed appellant. The officer was then asked: “Based on what you knew about the mode of operation [in] the area and what you observed from [appellant], was he a suspect at this time?” Clearly, there was no error in overruling appellant’s objection to this question. It did not elicit a response concerning appellant’s activities on any occasion other than that under investigation. The question merely asked the officer whether, based upon his own prior experience and personal observations, appellant had been suspected of engaging in drug activity on this occasion. Thus, the question elicited a non-hearsay response which was relevant to the res gestae of the very crime for which appellant was being tried.

In two other instances, the trial court sustained a hearsay objection before the officer could complete his answer. No objections based upon the introduction of appellant’s character were ever made. In any event, the officer never completed his answers and no character evidence was, therefore, ever introduced.

In another instance, the officer referred to the existence, in police files, of “a prior case. . . .” Before the officer could identify that “prior case” as one which involved appellant, the trial court sustained an objection and instructed the jury to disregard the reference. Moreover, the record demonstrates that appellant’s prior conviction for selling cocaine was admitted as substantive similar crimes evidence. The admission of that prior conviction is not enumerated as error. Accordingly, the officer’s reference to an otherwise unidentified “prior case” could scarcely have harmed appellant.

Decided September 8, 1992.

Edwards & McLeod, Jennifer McLeod, for appellant.

Thomas J. Charron, District Attorney, Thomas E. Cauthorn III, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope and Johnson, JJ., concur.


text:
    A92A1356.
    MILLS v. BARTON.
    (422 SE2d 269)
   Pope, Judge.

Plaintiff Regina Barton was the common-law wife of Charles E. Barton, Sr., now deceased, and the stepmother of defendant Linda •Barton Mills, Mr. Barton’s daughter. On March 1, 1991 plaintiff filed a complaint claiming defendant owed her $10,117.48 for money lent to the defendant on March 5, 1985. Following a bench trial, the trial court awarded judgment to plaintiff and defendant appeals.

Plaintiff presented evidence that in 1985, before her husband died, he told her that defendant wanted to borrow money from plaintiff so that she could avoid foreclosure of her house. Defendant did not communicate directly with plaintiff because they had a strained relationship. Plaintiff signed over to her husband a check in the amount, of $10,117.48 to be loaned to defendant. Plaintiff testified she expected the loan to be paid back when defendant was able to repay it. Defendant testified that her father, who had given her financial assistance previously, merely told her he was taking care of her foreclosure problem. She denied any knowledge that the plaintiff extended any loan to her and denied she agreed to accept a loan. Plaintiff, however, testified defendant had acknowledged to her on numerous occasions that she owed plaintiff money, had thanked her and told her she had plans to repay the money. Plaintiff also presented other witnesses who testified they heard defendant acknowledge the loan and the duty to repay plaintiff.

1. Defendant first argues plaintiff’s complaint is barred by the applicable statute of limitation, OCGA § 9-3-25, which provides: “All actions upon open account, or for the breach of any contract not under the hand of the party sought to be charged . . . shall be brought within four years after the right of action accrues.” Citing Teasley v. Bradley, 110 Ga. 497 (35 SE 782) (1900), defendant argues that when money is loaned with no agreement as to time of repayment, the amount loaned is due immediately and thus the period of limitation commences to run at once. Since plaintiff claims the loan was made in 1985, defendant argues the complaint filed in 1991 is barred by the statute of limitation. The facts of this case, however, are similar to those in McRae v. Smith, 159 Ga. App. 19, 20 (282 SE2d 676) (1981), in which the debtor was to repay the loan “ ‘when (he) could do so and within a reasonable time.’ ” When, as here, the facts show that “the parties intended, either expressly or impliedly, that demand for repayment would not be made until some future time,” then the statute of limitation does not commence to run until the date of demand for repayment. Id. Plaintiff testified that she first made demand for repayment “four or five months” after defendant’s father died in February 1988. Thus, the complaint was filed within four years of the date on which demand for repayment was made and the trial court did not err in denying defendant’s motion for judgment on the ground that the complaint was barred by the statute of limitation.

2. Defendant also argues plaintiff is barred from recovering because of the Statute of Frauds, OCGA § 13-5-30 (2) and (5). Subsection (2) of said statute, requiring a promise to assume the debt of another to be in writing, is inapplicable in this case because even if the loan in question was made to defendant’s father and not to defendant, no evidence was presented that the defendant promised to assume the debt of her father. Subsection (5) of the statute, requiring an agreement that is not to be performed within one year to be in writing is also inapplicable. The only evidence on the issue of when the loan was to be repaid was plaintiff’s testimony that defendant was to repay her when she was financially able. No evidence was presented from which it could be concluded that the loan could not have been paid back within one year. In fact, plaintiff testified that defendant had discussed with her the possibility of obtaining a loan from a finance company to pay plaintiff back.

3. Finally, we reject the remainder of defendant’s enumerations of error in which she argues no contract existed because the parties did not reach an enforceable agreement. Construing the evidence in the light most favorable to the judgment, as we are required to do, the evidence showed the defendant, through her father as her agent, accepted the money from the plaintiff in exchange for the understanding that she would repay the plaintiff when she was financially able. Even when the terms of an agreement are too indefinite to be enforceable, it may later become enforceable “ ‘by virtue of the subsequent acts, words, or conduct of the parties. . . .’ [Cit.]” Pine Valley Apts. &c. v. First State Bank, 143 Ga. App. 242, 245 (237 SE2d 716) (1977). Even if the facts of the case would have authorized a different finding by the trial judge, where, as here, the judgment is authorized by the evidence, it will not be set aside on appeal. See Gill v. Catrett, 153 Ga. App. 726 (266 SE2d 362) (1980).

Decided September 8, 1992.

Mark L. Wilhelmi, for appellant.

Michael C. Garrett, for appellee.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur in Divisions 1, 3, and in judgment.


text:
    A92A1369.
    CARIBBEAN LUMBER COMPANY, INC. et al. v. ANDERSON.
    (422 SE2d 267)
   Pope, Judge.

Defendants/appellants Caribbean Lumber Company, Inc. and Hawthorne Export Lumber Company, Inc. (the “owners”) appeal the trial court’s grant of summary judgment to plaintiff/appellee M. C. Anderson d/b/a M. C. Anderson Construction Company (the “contractor”) and the denial of their motion for summary judgment.

The record shows the owners and the contractor entered into a contract in which the contractor agreed to grade, pave and to install sewer, storm drainage, mechanical, electrical, and water systems on an undeveloped industrial lot in Pooler, Georgia owned by the owners (the “project”). The grading portion of the contract stated the contractor would be responsible for removing unsuitable material (certain types of soil) and replacing it with suitable soil. The contract was drafted by the engineering firm of Hussey, Gay, Bell & DeYoung, and Benjamin Gay was the engineer for the project (the “engineer”).

The bidding documents made available to the potential contractors for the project stated that the estimated amount of unsuitable material located on the project site was 10,000 cubic yards. In his successful bid, the contractor bid $9.90 per cubic yard to remove and replace the unsuitable material with suitable soil. It is undisputed that there were unusually wet conditions on the project site while the grading work was performed. By letter dated January 5, 1990, the contractor informed the engineer they were rapidly approaching the estimated quantity of unsuitable material on the project site and stated that the actual quantity removed would probably be at least double the original 10,000 cubic yard estimate. The engineer testified in January 1990 he informed the owners’ representative for the project, Waymon Shuman, that there was going to be an overrun but he was unsure if the overrun would be serious. Shuman submitted an affidavit in support of the owners’ motion for summary judgment in which he averred that he was not informed by the engineer, the contractor or their representatives that the amount of excavated material exceeded 10,000 cubic yards or that there had been a cost overrun.

On March 7, 1990, the engineer and contractor determined that 15,013 cubic yards of unsuitable material had been removed and replaced on the project. On April 6, 1990, the owners were informed of the amount of the overrun. The owners refused to pay the contractor for the additional 5,013 cubic yards of unsuitable material. The contractor filed a lien against the property in the amount of $73,883.70, based on 7,463 cubic yards of unsuitable material at $9.90 per cubic yard. The contractor also filed suit against the owners and sought the amount of the lien in his complaint. In his motion for summary judgment, however, the contractor sought only $49,628.70 for replacement of the additional 5,013 cubic yards of unsuitable material, which he claims was authorized by the engineer as the owners’ agent. This appeal arises from the trial court’s grant of plaintiff’s motion for summary judgment.

1. The trial court based its grant of summary judgment in favor of the contractor on the following language from the contract: “The Engineer shall in all cases determine the amount, quality, acceptability and fitness of the several kinds of work and materials which are to be paid for under this contract, shall determine all questions in relations to said work and decide every question of the fact which may arise relative to the fulfillment of this contract on the part of the Owner and on the part of the Contractor. His estimate and decisions shall be final and conclusive upon both parties of this contract.”

The owners contend the trial court erred in granting the contractor summary judgment based on this provision because it is void as against public policy. We have held that provisions in contracts which attempt to divest the courts of jurisdiction concerning a dispute arising from a contract or a provision that makes the decision of a certain person conclusive as to all disputes arising in connection with an agreement are void as against public policy. Sasser & Co. v. Griffin, 133 Ga. App. 83 (210 SE2d 34) (1974); Wright v. Cecil A. Mason Constr. Co., 115 Ga. App. 729 (155 SE2d 725) (1967); Gettys v. Mack Trucks, 107 Ga. App. 694 (131 SE2d 205) (1963). It is clear from reading the provision above in context with the other contractual provisions that it does not attempt to divest our courts of jurisdiction or make the decision of the engineer conclusive as to all disputes arising from this contract. Rather, the purpose of the provision is to give the engineer authority to make the decisions that must be made daily on a construction site without the constant need to consult with representatives of the owners and the contractors. Evidence of this provision’s limitations is the fact that the parties do not contend the trial court was without authority to resolve the dispute giving rise to this appeal.

2. It does not follow, however, that summary judgment was properly granted to the contractor in this case. It is axiomatic that the owners are only bound by the acts of the engineer which are within the scope of his actual or apparent authority. OCGA § 10-6-51. Finding that the engineer had authority pursuant to the contract provision set forth above to approve the overrun and that he had done so, the trial court held the contractor was entitled to judgment in his favor. In determining the authority of the engineer to approve the cost overrun in this case, however, the trial court failed to consider other pertinent provisions of the contract. “The construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part.” OCGA § 13-2-2 (4). Bemco Mattress Co. v. Southeast Bedding Co., 196 Ga. App. 509, 510 (1) (396 SE2d 238) (1990). The definition of unsuitable material in the general excavation, filling and grading portion of the contract specifically states that “[e]xcess water in material will not be a basis for establishing unsuitable material regardless of gradation.” Our review of the record reveals in the same section of the contract quoted in Division 1, supra, there is also a provision which states “[n]o oral statement of any person whomsoever in any manner or degree shall modify or otherwise affect the terms of this Contract.” In the section of the contract concerning measurement and payment, the paragraph dealing with removal of unsuitable subgrade material provides in pertinent part “ [unsuitable material will not . . . exceed the quantity of unsuitable material in the Bid Schedule [10,000 cubic feet] by more than 25 percent without a change order.”

It is undisputed a valid change order was not executed for the disputed work. Furthermore, in his affidavit in support of the owners’ motion for summary judgment and in opposition to the contractor’s motion for summary judgment, Shuman stated that the owners had never authorized the contractor to change the definition of “unsuitable material” in the contract or to waive any requirement in the contract that the engineer’s orders should be in writing or that change orders were needed as required by the contract.

When the contract is construed as a whole, along with Shuman’s affidavit, we hold that there remain issues of material fact concerning the scope of the engineer’s actual and/or apparent authority to waive or change certain contractual provisions and, if he had authority to waive or change certain contractual provisions, which ones were waived by him. Accordingly, the grant of the contractor’s motion for summary judgment was error.

Decided September 8, 1992.

Brennan, Harris & Rominger, Richard J. Harris, for appellants.

Oliver, Maner & Gray, James P. Gerard, for appellee.

Judgment reversed.

Carley, P. J., and Johnson, J., concur.

       Waiver of a written modification requirement in a contract may be established through the course of conduct between the parties. Biltmore Constr. Co. v. Tri-State Elec. Contractors, 137 Ga. App. 504, 506 (1) (224 SE2d 487) (1976).


text:
    A92A1372.
    ZAINO v. THE STATE.
    (422 SE2d 287)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of driving under the influence and several other traffic offenses. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts.

Appellant’s sole enumeration of error relates to the admission of evidence of his prior conviction in 1989 for driving under the influence. He urges that the facts underlying his prior conviction are not sufficiently similar to those underlying the instant prosecution.

There are dissimilarities between the prior and instant offenses. In the prior offense, appellant was shown to have driven in a reckless manner, but no collision occurred. In the instant offense, two vehicles were struck. Whereas appellant had previously agreed to take an intoximeter test, he had refused to do so in the instant case. However, there is no requirement that the previous and instant offenses be identical. See McGowan v. State, 198 Ga. App. 575, 577 (2) (402 SE2d 328) (1991). “The test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. Rather, such evidence ‘may be admitted if it “ ‘is substantially relevant for some purpose other than to show a probability that (the defendant) committed the crime on trial because he is a man of criminal character. . . [Cit.]” Maggard v. State, 259 Ga. 291, 293 (2) (380 SE2d 259) (1989). “In the case at bar, we find sufficient similarity between the charged crime and the prior offense, as on both occasions appellant was observed driving in an unsafe manner [in] late [afternoon or early evening] and was shown to be driving under the influence of alcohol. Accordingly, we find the evidence of the prior DUI was admissible to show course of conduct. [Cit.]” Blane v. State, 195 Ga. App. 504 (2) (393 SE2d 759) (1990).

Decided September 8, 1992.

Lenzer & Lenzer, Thomas P. Lenzer, Robert W. Lenzer, for appellant.

Gerald N. Blaney, Jr., Solicitor, Allison L. Thatcher, Assistant Solicitor, for appellee.

Judgments affirmed.

Pope and Johnson, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A92A1374.
    HENSON v. THE STATE.
    (422 SE2d 265)
   McMurray, Presiding Judge.

Defendant was convicted of being a habitual violator, driving under the influence of alcohol and failure to remain at the scene of an accident. He appeals. Held:

1. Defendant contends the State failed to prove that he was driving an automobile at the time in question. This contention is without merit. The State introduced evidence demonstrating that following an automobile collision, two men, defendant and Tommy Watkins, exited a Granada automobile and fled the scene; that no one else occupied the Granada; that, shortly thereafter, the men were apprehended and appeared to be heavily intoxicated; that Watkins denied driving the Granada; and that defendant was in possession of the keys to the Granada. The State also introduced evidence that investigating officers observed blood and a cracked windshield on the passenger side of the Granada and that, at the time he was apprehended, Watkins was bleeding from a cut on the head. Although this evidence was circumstantial, it justified a finding that defendant was the driver of the Granada at the time of the collision. See generally Jones v. State, 187 Ga. App. 132, 133 (369 SE2d 509).

2. Defendant contends the trial court erred in permitting the State to introduce certified copies of defendant’s prior habitual violator convictions over defendant’s objection that the State did not offer evidence showing the similarity of the prior convictions and the crimes charged. We agree.

“Since this case was tried, the Georgia Supreme Court in Stephens v. State, 261 Ga. 467 (405 SE2d 483) (1991) and Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991) set forth the procedure that must be followed before similar transaction evidence can be admitted. In Stephens, the Georgia Supreme Court held that the procedure followed in this case of presenting only a certified copy of a prior conviction is insufficient to meet the State’s burden of showing similarity between the crimes. Stephens, 261 Ga. at 468-469. Because we cannot say the erroneous admission of the prior conviction was harmless, defendant’s conviction must be reversed on this basis.” Ramirez v. State, 205 Ga. App. 217 (422 SE2d 3) (1992). Cf. Simon v. State, 182 Ga. App. 210 (1) (355 SE2d 120) in which the State introduced prior driving under the influence convictions and showed that both the prior offenses and the offenses charged occurred in the Atlanta area and that defendant was driving the same vehicle each time.

“The State argues that the decisions in Stephens and Williams should not be applied to those cases tried before those decisions were issued. The Georgia Supreme Court, however, made it clear in the opinions in those cases by reversing the convictions involved in those cases that the procedure outlined should be applied retroactively. We are constrained to follow their direction.” Ramirez v. State, 205 Ga. App. 217-218, supra.

3. In view of our ruling in Division 2, we need not address the remaining enumerations of error. We deem it prudent, however, to point out the following for guidance upon retrial:

(a) A defendant should be tried in accordance with the law in effect at the time the offense occurred. Aldridge v. State, 125 Ga. App. 691 (1) (188 SE2d 835).

(b) “ ‘Generally, accused may introduce evidence tending to show that another person committed the crime with which he is charged, if a proper foundation is laid, unless the probative value of the evidence is substantially outweighed by actual risk of undue delay, prejudice, or confusion.

‘However, the evidence to establish that someone else, and not accused, is the guilty party must be such evidence as is relevant on the trial of accused, and that the evidence offered by accused as to the commission of the crime by another person must be limited to such facts as are inconsistent with his own guilt, and. to such facts as raise a reasonable inference or presumption as to his own innocence.

‘The evidence, to be admissible, must be such proof as directly connects the other person with the corpus delicti, and tends clearly to point out someone besides accused as the guilty person. Evidence which can have no other effect than to cast a bare suspicion on another, or to raise a conjectural inference as to the commission of the crime by another, is not admissible. . . .

‘Although the fact that others have committed crimes of the same or similar nature is ordinarily irrelevant and inadmissible, accused may introduce evidence that another person recently committed a similar crime by similar methods, since such evidence tends to show that someone other than accused committed the particular crime.’ 22A CJS Criminal Law, § 729.” Bradford v. State, 204 Ga. App. 568, 569 (420 SE2d 4) (1992).

(c) A trial court should no longer instruct a jury that witnesses are presumed to speak the truth because such an instruction can be misleading. Noggle v. State, 256 Ga. 383, 385 (4), 386 (349 SE2d 175); Frost v. State, 200 Ga. App. 267, 271 (5) (407 SE2d 765).

Decided September 8, 1992.

Lenzer & Lenzer, Robert W. Lenzer, Thomas P. Lenzer, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Karen E. Reed, Assistant District Attorneys, for appellee.

Judgment reversed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A1378.
    ATLANTA CASUALTY COMPANY v. GOODWIN.
    (422 SE2d 76)
   Carley, Presiding Judge.

Appellant-plaintiff filed suit, seeking to recover a sum that it had paid appellee-defendant pursuant to an allegedly fraudulent no-fault insurance claim. Appellant attached to its complaint requests for admission by appellee. Included among appellant’s requests was an admission that appellee “is liable to [appellant] for $3,472.58, the total PIP benefits received by [her] from [appellant], as a result of the . . . fraudulent claim.” Appellee filed a timely pro se answer, but she failed to file either a timely response to the requests for admission or a request for an extension of time within which to respond. Appellant subsequently moved for summary judgment. The trial court denied appellant’s motion, but certified its order for immediate review. Appellant applied to this court for an interlocutory appeal and the instant case results from the grant of that application.

When the time for responding to requests for admission has “expired without answer or objection, then the requests are admitted subject only to the requestee’s opportunity under [OCGA § 9-11-36] (b) on motion to have his admissions ‘withdrawn’ if he shows that such action will aid in the presentation of the merits and if the other party fails to show that he will be prejudiced.” (Emphasis in original.) National Bank of Ga. v. Merritt, 130 Ga. App. 85, 87 (1) (202 SE2d 193) (1973). In the instant case, appellee did file a response to the requests for admission after appellant had moved for summary judgment. However, she did not do so pursuant to a motion under OCGA § 9-11-36 (b) to withdraw the admissions which had otherwise resulted from her previous failure to have filed a timely response. OCGA § 9-11-36 (b) “puts the burden on the one who has failed to answer ... to be bound by the ‘admissions,’ unless he takes the initiative and files a motion and succeeds in defeating such admissions. [Cits.] [Appellee] here failed to answer within the proper time and failed to file any motion to have the admissions withdrawn. [She is] therefore bound by the admissions and the trial court erred in allowing the [untimely] answers [to appellant’s requests for admission] into the record.” National Bank of Ga. v. Merritt, supra at 87 (1).

Decided September 8, 1992.

Simpson & Gray, Joseph I. Carter, for appellant.

Linnie C. Goodwin, pro se.

“If a party served with a request for admission does not serve an answer or objection and does not move for an extension of time or to withdraw the admissions resulting from a failure to answer, the matter stands admitted. [Cits.]” Albitus v. Farmers & Merchants Bank, 159 Ga. App. 406, 407 (1) (283 SE2d 632) (1981). Since appellee did not file a timely response or objections and did not move for an extension or withdrawal, she is deemed to have admitted that she “is liable to [appellant] for $3,472.58, the total PIP benefits received by [her] from [appellant], as a result of the . . . fraudulent claim.” It follows that the trial court erred in denying appellant’s motion for summary judgment. “ ‘[WJhere a party failed to answer a request for admissions within the requisite time and the admissions removed all issues of fact, the other party was entitled to a grant of its motion for summary judgment.’ [Cits.]” West v. Milner Enterprises, 162 Ga. App. 667 (292 SE2d 538) (1982).

Judgment reversed.

Pope and Johnson, JJ., concur.