text:
    75336.
    SIMPSON v. REED.
    (367 SE2d 563)
   Sognier, Judge.

Derrick Reed brought suit against Freda P. Simpson seeking damages for injuries he incurred when he was struck by the car driven by Simpson as he was crossing a rural highway on a riding lawnmower. The jury returned a verdict in favor of Reed and Simpson appeals from the judgment thereon.

1. Appellant contends the trial court erred by failing to give the jury appellant’s request to charge No. 20, setting forth verbatim OCGA § 40-6-184 in its entirety. However, there was no evidence which would have rendered a charge based on subsection (b) of OCGA § 40-6-184, regarding the establishment of a minimum speed limit, applicable to this case. Since a portion of the Code section in the request was inapt or inapplicable, the trial court did not err by denying the request. Slaughter v. Linder, 122 Ga. App. 144 (2b) (176 SE2d 450) (1970).

2. Appellant contends the trial court erred by failing to give her request to charge No. 13 that the law does not impose an absolute duty on a driver to be in such control of a vehicle so as to be able to stop the vehicle before injuring others. The trial court instead charged the jury that “there is no absolute duty on any driver to avoid a collision.” “If the substance of a properly requested and appropriate instruction is given in the jury charge as a whole, the court is under no obligation to employ the exact language requested. [Cit.]” Davis v. Glaze, 182 Ga. App. 18, 23 (12) (354 SE2d 845) (1987). This enumeration presents no reversible error.

3. We find no error in the trial court’s refusal to charge appellant’s request to charge No. 16 which stated principles of foreseeability contained in appellant’s requested charge No. 17, which was given in full by the trial court. Nor do we agree with appellant’s argument that the charge on foreseeability as given by the trial court was unfairly slanted in appellee’s favor simply because the trial court, rather than using the third person impersonal “one,” instead charged the jury that “it is not necessary that the Defendant should have been able to anticipate the particular consequences which ensued,” and “[i]t is sufficient if in ordinary prudence the Defendant might have foreseen some injury would result.” (Emphasis supplied.)

4. Appellant contends the trial court erred by charging the jury as to the doctrine of last clear chance. Although we agree with appellant that the last clear chance doctrine has no application unless the defendant knew of the plaintiff’s perilous situation and had opportunity to take evasive action to avoid injuring him, see Conner v. Mangum, 132 Ga. App. 100, 106 (207 SE2d 604) (1974), the evidence here indicates that appellant saw appellee while 25 yards distant and although she asserts he was travelling along the side of the road and pulled out suddenly in front of her, the jury was authorized to believe appellee’s testimony that he had not travelled along the side of the road but had entered the roadway solely to cross it on the diagonal when appellant struck him. Thus, the jury was authorized to find that appellant, though 25 yards distant and aware of appellee’s presence crossing the road on the diagonal, nevertheless failed to take advantage of the distance to avoid injuring appellee by taking evasive action. Accordingly, it was not error to so charge the jury. See Central of Ga. R. Co. v. Wooten, 163 Ga. App. 622, 623 (1) (295 SE2d 369) (1982); Vaughn v. American Freight System, 164 Ga. App. 786, 787 (4) (298 SE2d 284) (1982).

5. We find no error in the trial court’s instruction to the jury based on appellee’s request to charge No. 8 as to the provisions of OCGA § 40-8-70 (a), where there was evidence from which the jury could have concluded that appellant should have used her horn and that she failed to do so. Hurst v. J. P. Colley Contractors, 167 Ga. App. 56, 58 (4) (306 SE2d 54) (1983). Appellant argues that a conflict exists between the charge given on OCGA § 40-8-70 (a) and the charge given based on Aultman v. Spellmeyer, 111 Ga. App. 769 (143 SE2d 403) (1965); however, having held that the Code section charge was proper and in view of the fact that appellant specifically requested the Aultman charge, we find any error, assuming error exists, to present no ground for reversal. See generally Citizens &c. Bank v. Morgan, 142 Ga. App. 337, 340 (3) (235 SE2d 767) (1977).

6. Appellant has failed to demonstrate how a proper charge on the defendant’s burden to prove any affirmative defenses, see Stewart v. Mynatt, 135 Ga. 637, 639 (2) (70 SE 325) (1910), or the charge on foreseeability, cited in Division 3, infra, so confused or misled the jury as to constitute reversible error.

7. We find no error in the trial court’s charge that “the failure to comply with the provisions of a valid law which proximately results in an injury to another is negligence as a matter of law. And this is so even though the statute may be one which regulates highway traffic.” See generally Green v. Dillard, 176 Ga. App. 574, 575 (1) (337 SE2d 55) (1985), overruled on other grounds, Kres v. Winn-Dixie Stores, 183 Ga. App. 854, 857 (360 SE2d 415) (1987). The fact that the only injuries sued for in the case sub judice were allegedly proximately caused by appellant’s violation of valid traffic laws did not intimate that any alleged violation of traffic laws by appellee could not have constituted negligence as well. Nor do we find the trial court’s repetition of this principle of law, in view of the charge as a whole, to constitute error. See Wendlandt v. Shepherd Constr. Co., 178 Ga. App. 153, 155-156 (2) (342 SE2d 352) (1986).

8. In view of appellant’s testimony that she was attempting to pass appellee at the time of the accident, the trial court’s charges based on OCGA § 40-6-44 were not.error. See generally Dept. of Transp. v. 19.646 Acres of Land, 178 Ga. App. 287, 288 (2) (342 SE2d 760) (1986). We discern no merit in appellant’s argument that these charges were erroneously given simply because it was appellee who requested them on the basis of appellant’s testimony.

9. Nor do we find merit in appellant’s argument that the trial court erred by instructing the jury that appellee had no duty to yield the right-of-way if the jury found that appellee, after stopping and looking, could not see appellant’s automobile as he entered the roadway. The jury was authorized to find that appellant’s automobile was not visible to appellee as he entered the roadway and thus a charge indicating the possible inapplicability of OCGA § 40-6-73 under such circumstances was adjusted to the evidence. See generally Cale v. Jones, 176 Ga. App. 865, 868 (4) (338 SE2d 68) (1985).

10. We have carefully reviewed the instructions given by the trial court and find no merit in appellant’s enumeration contending error in the trial court’s presentation of the factual contentions of the parties. See Laken v. Gen. Seat &c. Mfg. Corp., 100 Ga. App. 839, 840-841 (1) (112 SE2d 301) (1959); see also McHone v. Williams, 111 Ga. App. 747 (1) (143 SE2d 63) (1965).

11. Appellant contends in her final enumeration that the trial court erred by entering judgment on the jury’s verdict of $100,000 in favor of appellee because the verdict was excessive and strongly against the weight of the evidence. The version of OCGA § 51-12-12 in effect at the time the jury verdict and judgment were rendered provided: “The question of damages is one for the jury; and the court should not interfere with the jury’s discretion unless the damages are either so small or so excessive as to justify the inference of gross mistake or undue bias.” The evidence adduced at trial, when construed in favor of upholding the verdict, see Citizens Jewelry Co. v. Walker, 178 Ga. App. 897, 898 (2) (345 SE2d 106) (1986), showed that appellee, while in the exercise of due care for his own safety, was struck by appellant’s automobile travelling an estimated 70 miles per hour when appellant, after observing appellee, momentarily took her eyes off of him, possibly to drink some iced tea she had with her in her vehicle. There was evidence that appellee was out of work for months after being released from the hospital for his injuries and that in addition to his other injuries, appellee received extensive facial injuries resulting in permanent scarring.

In support of her argument that the verdict was excessive, appellant cites McKinney & Co. v. Lawson, 257 Ga. 222 (357 SE2d 786) (1987), in which a divided Supreme Court found gross error in the verdict awarded by the jury based on the Supreme Court’s own estimate of the negligence of the plaintiff therein. We decline appellant’s invitation to interpret McKinney as authorizing the appellate courts of this State to enter the jury box in each case and interfere with the discretion granted the jury by statutory and case law. Rather, we deem McKinney limited to the specific facts therein and in view of the evidence in the case sub judice, we will not here ignore the “ ‘presumption that the verdict of a jury is based on a fair consideration of all matters presented to it.’ [Cit.]” Brown v. Svc. Coach Lines, 71 Ga. App. 437, 441 (31 SE2d 236) (1944); see also McKinney, supra at 227 (Smith, Justice, dissenting). Thus, “[i]n the absence of any showing of actual bias or mistake, we cannot say that the verdict returned by the jury in this case, and approved by the trial judge, is so excessive as a matter of law as to justify the inference of gross mistake or undue bias . . . .” Hill v. Rosser, 102 Ga. App. 776, 777 (4) (117 SE2d 889) (1960). See also Black & White Cab Co. v. Clark, 67 Ga. App. 170, 174 (8) (19 SE2d 570) (1942).

Judgment, affirmed.

McMurray, P. J., and Beasley, J., concur.

Decided February 22, 1988.

Rehearing denied March 11, 1988

Thomas S. Carlock, Daniel B. Simon III, for appellant.

William R. Waldrop, Hollé Weiss-Friedman, for appellee.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    75512.
    PENNSYLVANIA MILLERS MUTUAL INSURANCE COMPANY v. DAVIS et al.
    (367 SE2d 91)
   McMurray, Presiding Judge.

Plaintiffs, Mr. and Mrs. Davis, brought an action against defendant Pennsylvania Millers Mutual Insurance Company seeking to recover under their homeowner’s hazard insurance policy for the loss of their air conditioner, which was allegedly damaged after it was struck by lightning during an electrical storm. Plaintiffs further alleged that defendant’s refusal to pay according to the insurance policy was in bad faith and they sought statutory damages under OCGA § 33-4-6.

Defendant answered and admitted that it insured plaintiffs’ house and that it denied plaintiffs’ claim for the loss of their air conditioner. Defendant denied the remaining material allegations of plaintiffs’ complaint and alleged that plaintiffs’ loss was not covered under their policy of insurance.

The evidence adduced at trial, construed most favorably to support the verdict, showed that plaintiffs’ air conditioner malfunctioned immediately after lightning struck “four or five feet from [their] house . . .” during a “thunderstorm” on August 16, 1985. Plaintiffs paid $1,099.35 to repair the air conditioner which required that part of the air conditioning system be replaced. From this and other evidence adduced at trial, a special verdict was returned in plaintiffs’ favor which provided as follows: “The plaintiffs’ air conditioner was damaged by lightning? Yes (Yes or No) . . . The plaintiffs are entitled to recover from the defendant $1,099.35 damages [;] $ None penalties^] $1,825.00 attorney fees.” The trial court entered judgment on the verdict and this appeal followed. Held:

1. First, defendant contends the trial court erred in failing to grant its motion for directed verdict because plaintiffs failed to prove “the fair market value of the air conditioner at the time of the loss as required by the insurance policy.”.

An examination of the record and transcript shows that the insurance contract was never admitted into evidence. “The burden is upon the party alleging error to show it affirmatively by the record. Campbell v. Powell, 206 Ga. 768, 770 (3) (58 SE2d 829) (1950); Smith v. Forrester, 132 Ga. App. 426 (1) (208 SE2d 199) (1974).” Doster v. Central of Ga. R. Co., 177 Ga. App. 393, 400 (7) (339 SE2d 619). Since the insurance contract was not admitted into evidence in the case sub judice, we cannot determine whether plaintiffs complied with the terms of the insurance policy with regard to their proof of damages. In any event, plaintiffs’ evidence showing that it cost them $1,099.35 to repair their air conditioner, which required that part of the air conditioning system be replaced, was sufficient to authorize the jury’s verdict. This enumeration of error is without merit.

2. Next, defendant enumerates the general grounds as to the award of attorney fees pursuant to OCGA § 33-4-6.

“The burden was on [plaintiffs] to prove [defendant’s] bad faith. Compare OCGA § 33-34-6. See Binns v. MARTA, 250 Ga. 847 (301 SE2d 877) (1983). [Defendant’s] defense to liability, was, in essence, that the damage [to plaintiffs’ air conditioner] was not caused by the insured risk of [lightning] but by inadequate maintenance and wear and tear. The issue then is whether there was ‘any evidence’ ‘which would show that [defendant’s] reliance upon (this) defense was frivolous and unfounded and was asserted without reasonable and probable cause.’ Progressive Cas. Ins. Co. v. Avery, 165 Ga. App. 703, 707 (302 SE2d 605) (1983).” Canal Ins. Co. v. Bryant, 173 Ga. App. 173, 174 (2) (325 SE2d 839).

We have reviewed the entire trial transcript in the case sub judice and find that defendant refused to pay plaintiffs’ claim because of an expert’s exhaustive opinion that plaintiffs’ air conditioner was not damaged by lightning. On the other hand, plaintiffs’ expert did not testify as to the reason the air conditioner malfunctioned. He simply testified that when he examined plaintiffs’ air conditioner “the contacts were welded on the contacter and the compressor was noisy . . . [s]o I figured the valves and all were damaged due to an excess of running.” The only other evidence which indicated that plaintiffs’ air conditioner was damaged by lightning was plaintiff Mr. Davis’ testimony that the air conditioner began malfunctioning immediately after the lightning struck and that he “knew lightning hit it . . .” because of his experience in observing lightning “hit in the woods.” Under these circumstances, we find the award of attorney fees under OCGA § 33-4-6 cannot stand as plaintiffs failed to meet their initial burden of producing “any evidence” of defendant’s bad faith refusal to pay their claim. See Canal Ins. Co. v. Bryant, 173 Ga. App. 173, 174 (2), supra. Compare State Farm Fire &c. Co. v. Martin, 174 Ga. App. 308 (329 SE2d 577).

3. There being neither argument nor citation of authority offered in support of defendant’s third enumeration of error, it is deemed abandoned pursuant to Rule 15 (c) (2) of the Rules of the Court of Appeals of the State of Georgia. See Southern R. Co. v. Ga. Kraft Co., 183 Ga. App. 884, 886 (7) (360 SE2d 605).

Decided March 4, 1988

Rehearing denied March 11, 1988

William A. Zorn, for appellant.

James G. Johnson, Jr., for appellees.

Judgment affirmed in part and reversed in part.

Sognier and Beasley, JJ., concur.


author: Carley, Judge.

text:
    73948.
    THE STATE v. CHANDLER.
    (367 SE2d 887)
    Decided March 11, 1988.

      Harry N. Gordon, District Attorney, Richard J. Weaver, Assistant District Attorney, for appellant.

      John Martin, Timothy W. Floyd, Sara F. Miller, for appellee.
   Carley, Judge.

In State v. Chandler, 184 Ga. App. 1 (360 SE2d 727) (1987), this Court reversed the judgment of the trial court. After granting the writ of certiorari, the Supreme Court of Georgia reversed the judgment of this Court. Chandler v. State, 257 Ga. 775 (364 SE2d 273) (1988). Accordingly, this Court’s judgment in State v. Chandler, supra, is vacated and the judgment of the Supreme Court is made the judgment of this Court. It follows that the judgment of the trial court is affirmed.

Judgment affirmed.

Birdsong, C. J., Deen, P. J., McMurray, P. J., Banke, P. J., Sognier, Pope, Benham, and Beasley, JJ., concur.


author: Beasley, Judge.

text:
    75086.
    SMITH v. THE STATE.
    (367 SE2d 573)
   Beasley, Judge.

Smith was convicted as follows: Count 1 — violation of Georgia Controlled Substances Act (possession of more than an ounce of marijuana), OCGA § 16-13-30 (j) (1); Count 2 — terroristic threats (against Shirley Barkah), OCGA § 16-11-37; Count 3 — pointing a gun at another (Abdelhamid M. Barkah), OCGA § 16-11-102; Count 4 — criminal damage to property in the second degree (the car of Hamid Barkah), OCGA § 16-7-23; and Count 5 — simple battery (against his wife Donna M. Smith), OCGA § 16-5-23. He appeals pro se, with the assistance of the public defender.

Viewing the evidence favorable to the verdict, it establishes that on August 18, 1986, Smith moved to a Days Inn due to marital difficulties partly related to his marijuana dealings. He registered under the name J. R. Ross and was given room 101, then moved to room 103. He asked his wife to bring their daughter to visit late that evening, but she did not do so. She was staying with the Barkahs, having known Mrs. Barkah since childhood. Defendant called her again the next morning, and she visited him in room 103. He told her to get a divorce, that he did not care, and that all he could do for her financially was to give her marijuana, which he did. He put two-suitcases full in her car trunk.

Mrs. Smith returned to the Barkahs, where defendant visited her twice that day. The first time he slapped her; the second time he threw her against a wall and injured her arm and back. Defendant’s older son intervened, and Mrs. Smith took the child and left in her car, which still contained the suitcases. She left the car in a motel parking lot because she feared defendant would follow her and be able to spot the car. She called Mrs. Barkah, who came and took her and the child to a motel near the DeKalb police station. The police took her to the battered women’s shelter.

Defendant began calling Mr. Barkah, demanding his money and his property back and to know his wife’s whereabouts. Mrs. Barkah had sold marijuana in the past for defendant. She retrieved the two suitcases from Mrs. Smith’s car, put them in defendant’s car at her apartment, and took defendant’s keys to her husband, who delivered them to defendant. At some point that day, defendant retrieved these suitcases.

Later that evening, defendant called the Barkahs and threatened them, telling Mr. Barkah that he was going to cut Mrs. Barkah into little pieces, that he was coming to prove what he was saying, and that if he was arrested for any reason he would take the Barkahs and his wife with him. Portions of these calls were recorded, including a demand that they get “. . . his s— back for [him] or get [his wife] to get it back. ...” They believed this reference was to the marijuana.

Defendant then went to the apartment where he kicked and hit Mr. Barkah’s car with his fists and rammed it with his Blazer truck. (Mr. Barkah, who worked as a car salesman, testified it cost $2,200 to repair.) Defendant pulled a pistol and pointed it at Mr. Barkah during this exchange. The Barkahs called the police.

An officer on patrol found and arrested defendant in the early hours of August 20. He seized a .380 Colt which was on the console between the seats with a chambered bullet. Defendant was placed and remained in the DeKalb jail.

Mrs. Barkah called an Alabama officer after defendant was arrested to report that defendant had a quantity of marijuana at the Days Inn. She told him it would be in room 103 under the name of J. R. Ross.

He called Sgt. Edenfield in DeKalb on August 21 to verify that defendant had been arrested and to place a hold on him for an Alabama charge arising from a June incident and to convey the information about the marijuana. The sergeant talked to Mrs. Barkah, who told him she thought the marijuana was in room 103, which was registered to “J. R. Potts.” He called the manager at the Days Inn to see if any luggage had been found in room 103 and was told it had not.

In addition to defendant’s registering in room 103 under the name of Ross, he had also registered in room 437, using the name “A.T. Hunn.” Both rooms were paid for in cash for one night, August 19. It was the policy of the motel to place a “cuff’ on the door of any room if after check-out time the guest had not checked out and had not paid for the next day, so the guest would have to pay the bill before re-entering the room.

Room 437 was cuffed and on August 22, no one having returned and paid for it, the manager and the housekeeper followed normal procedure and went in. Upon entering, the manager saw on the dresser a large plastic grocery bag and its contents, marijuana. He opened two suitcases which were lying on the bed and found both full of marijuana.

He called Sgt. Edenfield, who he knew to be a narcotics officer. It did not occur to him that there was any connection with the subject of the earlier inquiry. Edenfield and a detective came to the motel room, were shown the marijuana, and seized it. The detective with Edenfield opened the suitcases. They both said they had been told by the manager that the suitcases contained marijuana and that they could see marijuana in the grocery bag in plain view. A motion to suppress all of this evidence was made and denied.

1. Defendant’s Enumeration 7 alleges ineffective assistance of counsel in numerous respects.

Counsel assisting defendant with his appeal was not his trial counsel. Trial counsel was retained and continued to represent defendant through his sentencing at the conclusion of the trial in March. Thereafter, defendant filed several pro se motions with the trial court. He filed no motion for new trial but rather filed a notice of appeal directly. He has vigorously pursued his appeal. While he has been assisted by the public defender on appeal, that attorney has not been appointed to represent him and appears at most only as co-counsel, although he has not filed a notice of appearance. See Ga. Const. 1983, Art. I, Sec. I, Par. XII.

Defendant argues that although there is no ruling by the trial court on the issue of effectiveness of counsel, we should nonetheless review it because the record already shows it as a matter of law.

In Smith v. State, 255 Ga. 654 (341 SE2d 5) (1986), the Georgia Supreme Court reiterated the rule that the issue of effectiveness of counsel is not to be addressed for the first time on appeal. Smith’s counsel had been retained after trial and the filing of the motion for new trial. He filed an amendment to the motion but did not raise this issue. The Supreme Court remanded the case for a finding on the issue, stating that “[i]t is a requisite of a sound system of criminal justice, serving alike the proper ends of defendants and of the public, that any contention concerning the violation of the constitutional right of counsel should be made at the earliest practicable moment. Thus we remand the case to the trial court for a hearing and appropriate findings concerning the issue of ineffective assistance of counsel.” Smith at 656.

Since the publication of Thompson v. State, 257 Ga. 386 (359 SE2d 664) (1987) last November 5, any claim of ineffective assistance of counsel which is not raised in a motion for new trial filed by new counsel is deemed waived.

We are unable to tell when the public defender began assisting defendant. What is clear, however, is that defendant, either alone or with the public defender’s assistance, has consciously chosen not to raise the issue of effectiveness of counsel below so that the trial judge could entertain evidence and make a ruling.

“Appellate courts review enumerations for correction of errors of law committed by the trial court — where motions or objections are properly presented for a ruling by the trial court. [Cit.] Enumerated errors which raise issues for the first time ... on appeal present nothing for review. [Cit.]” Fowler v. State, 155 Ga. App. 76 (2) (270 SE2d 297) (1980); see Pulliam v. State, 236 Ga. 460, 465 (224 SE2d 8) (1976) cert. denied, 428 U. S. 874, reh. denied, 429 U. S. 879.

Because defendant acting as his own counsel opted not to present this question to the trial court, saying it was not necessary, he has presented no ruling by it for us to review. He asks us to review errors of trial counsel, but our function is to review alleged legal errors of the trial court. True, trial counsel errors may be material to our consideration of a court ruling in regard to their showing ineffectiveness, but we do not originally decide their legality.

Had this case come to us after the publication of Thompson, the issue would be regarded as waived. However, since this case was filed and briefed before that opinion, we are constrained to remand this case for the trial court to determine the issue. Lloyd v. State, 257 Ga. 108 (3) (355 SE2d 423) (1987); Hambrick v. State, 256 Ga. 148, 151 (5) (344 SE2d 639) (1986); Smith v. State, 255 Ga. 654 (341 SE2d 5) (1986) ; Midura v. State, 183 Ga. App. 523, 524 (3) (359 SE2d 416) (1987).

2. Enumeration 1 claims error in the trial court’s denial of defendant’s motion to sever the marijuana charge from the others, contending that the former did not arise from the same transaction or occurrence and was not connected with the latter.

OCGA § 16-1-7 provides in sections (b) and (c) that all crimes arising from the same conduct, known to the prosecutor and within the jurisdiction of a single court, must be prosecuted in a single prosecution. If they are properly joined, the court in the interest of justice may order one or more of the charges tried separately.

Since the crimes joined here were not of a similar kind, the inquiry is whether, applying the standard adopted in Dingler v. State, 233 Ga. 462, 464 (211 SE2d 752) (1975), they are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan. “It is not an abuse of discretion in the interest of justice for the judge to refuse a motion for severance of the trial of multiple charges where the crimes alleged were part of a continuous transaction conducted over a relatively short time, and ‘. . . from the nature of the entire transaction, it would be almost impossible to present to a jury evidence of one of the crimes without also permitting evidence of the other . . .’ [Cit.]” Stewart v. State, 239 Ga. 588, 589 (3) (238 SE2d 540) (1977). The court should consider whether, in light of the number of offenses charged and the complexity of the evidence, the fact-trier will be able to distinguish the evidence and apply the law intelligently to each offense. Adams v. State, 178 Ga. App. 261 (1) (342 SE2d 747) (1986).

Although the indictment alleged possession on August 22 when the marijuana was discovered by the police, defendant had been in jail since the morning of August 20, and the evidence showed that he was in possession of the suitcases containing the marijuana on August 18 and 19. While the battery of his wife may have arisen from domestic problems, they stemmed at least in part from defendant’s marijuana dealings. Also, the marijuana was apparently offered to Mrs. Smith as a financial settlement of the domestic dispute and then defendant changed his mind, demanding its return from the Barkahs. The threats against the Barkahs demanded the return of defendant’s property and money. While defendant might explain that “property” did not encompass the marijuana, the trial judge’s conclusion that it included the marijuana was founded, and the denial of the severance motion was not an abuse of discretion.

Defendant relies on Thompson v. State, 181 Ga. App. 163 (351 SE2d 483) (1986). It involved counts of incest with one stepdaughter and sexual molestation of another over a period of years, plus two counts of aggravated assault against his wife and one against a stepdaughter. The assaults all occurred over a three-day period. The State’s theory was that by demonstrating defendant’s violent disposition, the shooting incidents tended to support the children’s testimony that their failure to report the sexual abuse was due to fear. The court rejected this rationale because the shootings occurred only two months before the children did report the abuse, which had been going on for years. The court noted that no other relevant connection was offered.

Here, the purpose of joinder was not to bolster any witness’ credibility, as in Thompson. Instead there was a rational connection, shown by the evidence, between the battery, terroristic threats, and damage to property on the one hand and defendant’s possession of marijuana on the other. Eady v. State, 182 Ga. App. 293, 296 (4) (355 SE2d 778) (1987); Adams v. State, 178 Ga. App. 261 (1) (342 SE2d 747) (1986); see Spradlin v. State, 174 Ga. App. 658 (1) (331 SE2d 50) (1985).

3. Enumeration 2 claims error in the trial court’s denial of the motion to suppress the marijuana and the test report on it.

The argument discusses the prescription pill bottle removed from the small shoulder bag by the officers, but that is not enumerated as error. We have “ ‘no jurisdiction to consider grounds which, though argued are not enumerated according to [OCGA § 5-6-40].’ [Cit.]” Slaughter v. Linder, 122 Ga. App. 144, 148 (2c) (176 SE2d 450) (1970); Meeks v. State, 178 Ga. App. 9, 14 (4) (341 SE2d 880) (1986).

Although the order denying the motion refers to a hearing and evidence received, there is no transcript or narrative in the record. We therefore examine the trial evidence and defendant’s affidavit submitted in support of the motion. Sanders v. State, 235 Ga. 425, 431 (II) (219 SE2d 768) (1975); Johnson v. State, 143 Ga. App. 826 (237 SE2d 229) (1977).

Defendant argues vigorously that he had not abandoned the room and luggage and that the only reason that he had not paid the rent was that he was in jail. He overlooks several pertinent facts: the room in which the marijuana was found was not registered in his name but in the apparently fictitious name of “Hunn.” The room was “cuffed” by the motel, which would have accepted rent if someone had come to pay it and retrieve the luggage. When the manager searched the room pursuant to motel normal procedure, he deemed the property abandoned. Devoid of evidentiary support is defendant’s argument that Detective Edenfield knew room 437 was really defendant’s and that the search by the manager was conducted as Eden-field’s agent. The manager testified that he made no connection between Edenfield’s request, for him to check room 103, and his own entry into room 437.

In his motion before the trial court, defendant asserted his rights under the federal Fourth Amendment and under Ga. Const., Art. I, Sec. I, Par. XIII. Here, however, he argues only his rights under the federal Fourth Amendment, so the other is considered abandoned. MacDonald v. MacDonald, 156 Ga. App. 565, 566 (1a) (275 SE2d 142) (1980).

The federally-founded protection and that afforded by the associated exclusionary rule are against invasions of reasonable expectations of privacy by state action and, with regard to the exclusionary rule, state law enforcement action. State v. Young, 234 Ga. 488, 489 (1) (216 SE2d 586) (1975) cert. denied, 423 U. S. 1039.

Defendant complains of two searches: room 437 and the suitcases.

(a) The initial entry into the room was made by the manager, a private citizen, and was not prohibited by the Fourth Amendment. Morton v. State, 181 Ga. App. 781, 783 (2) (353 SE2d 852) (1987). Abandonment does not turn on strict property concepts but on whether defendant had relinquished his interest so that he no longer had a reasonable expectation of privacy in the premises at the time of the search. Bloodworth v. State, 233 Ga. 589, 590 (2) (212 SE2d 774) (1975). The manager, following normal procedure, entered the room because rent had not been paid for two days. His conclusion that the room had been abandoned was reasonable. Buttrum v. State, 249 Ga. 652, 653 (2) (293 SE2d 334) (1982) cert. denied, 460 U. S. 1048; Morton, supra.

Upon entering the room, he found the grocery sack with marijuana in plain sight and thereafter opened the suitcases and discovered more marijuana. He called the police and allowed them in. It was reasonably apparent to them that the prior occupant had abandoned the premises, so the manager’s invitation obviated the need for a warrant to authorize the officers’ entry. Buttrum, supra; Bloodworth, supra. Once inside, their seeing marijuana in the grocery sack in plain view authorized its seizure. See Griffin v. State, 180 Ga. App. 189 (348 SE2d 577) (1986).

The charge was possession of more than an ounce of marijuana. The grocery bag contained this quantity, which alone justifies denial of the motion to suppress as to that charge. Because of the large amount found in the suitcases and the possible effect of this evidence on the jury, we address also the issue as to it.

(b) Defendant acknowledges that the initial search of the suitcases was conducted by the manager but argues that he was acting as the State’s agent. The manager testified that he made no connection between the call regarding room 103 and his subsequent entry into room 437, and that no rent having been paid for room 437, his search of the luggage for identification was standard procedure. This does not mandate a conclusion that the manager was the agent of the State. Morton, supra at 783.

4. In Enumeration 3, defendant complains of the denial of his motion in limine concerning a June incident in Alabama. Prior to trial, the state gave notice under USCR 31.3 of intent to introduce a similar crime relating to the marijuana charge. Defendant filed a motion in limine to exclude this evidence as improperly placing his character in issue.

At the motion hearing, the evidence was that on June 14, 1986, defendant took five pounds of marijuana to his nephew in Alabama at the nephew’s request. The nephew said he was “fronted” the marijuana to sell and then pay defendant. Defendant’s brother-in-law found the marijuana and called the police, who came and confiscated three pounds. Defendant and his wife had been unable to get all the marijuana to the nephew due to his parents’ presence and were returning to do that when they saw the police car. Defendant disposed of the remainder by placing it in a dumpster and called another relative to request its retrieval. The police were called and they seized two pound bags from the dumpster.

The trial court ruled that the transaction with the nephew was admissible but granted the motion with regard to testimony as to the material found in the dumpster.

Citing Duke v. State, 256 Ga. 671 (352 SE2d 561) (1987), defendant argues that the June incident was not relevant to the charge on trial nor admissible for any other purpose and should have been totally excluded. Below, defendant argued that the two-month time lapse made the one irrelevant to the other and that the State’s only purpose in introducing the evidence was to inflame the jury.

The State, on the other hand, argues that the incident was similar and properly admissible pursuant to State v. Johnson, 246 Ga. App. 654, 655 (1) (272 SE2d 321) (1980). The State further argued that the incident was part of the res gestae of the Georgia incident because it was one of the precipitating factors of the marital discord leading to the charged crimes, plus that it led to defendant’s arrest in Georgia.

Similarity of the charged crime and the like act has been the focus of many cases, but it is “not the only factor, nor is it necessarily the controlling factor. ‘The ultimate issue in determining the admissibility of evidence of other crimes is not mere similarity but relevance to the issues in the trial of the case.’ [Cits.] Depending upon the purpose for which the extrinsic offense is offered, ‘the state may be required to prove a high degree of similarity between relevant characteristics of the extrinsic offenses and the charged crimes, or it may only have the burden of showing a logical connection between crimes which are essentially dissimilar. [Cits.]’ ” Felker v. State, 252 Ga. 351, 359 (1 a) (314 SE2d 621) (1984), quoted in Henderson v. State, 182 Ga. App. 513, 516 (2) (356 SE2d 241) (1987), aff'd in part and rev’d in part on other grounds, 257 Ga. 618 (362 SE2d 346) (1988).

Either basis is available as a ground for allowing the Alabama incident in. There is no dispute that defendant was the perpetrator of that crime. His nephew, his brother-in-law, and his wife identified him. The crime was similar, involving five pounds of marijuana packaged in one-pound plastic bags within a shopping bag. The Georgia incident involved nineteen pounds, part of which was packaged in plastic baggies contained in a grocery shopping bag. The issue on trial was whether it was defendant’s marijuana. The similarities with the Alabama crime tended to prove that it was. Sablon v. State, 182 Ga. App. 128, 130 (2) (355 SE2d 88) (1987). Also, the incident was logically connected to and a part of the charged crime, explaining the controversy between defendant and his wife and his conflict with the Barkahs. Henderson, supra.

Duke is inapposite. Duke was accused of murder. She gave a statement to the police in which she denied being sexually involved with the victim and stated that her only sexual relationship was with another man. It was this portion of the statement to which she objected and which was found irrelevant.

5. In Enumeration 4, defendant claims error by the trial court’s allowing into evidence thirteen similar crimes in the absence of notice pursuant to USCR 31.3. Testimony about one of these incidents was elicited in response to a question by defense counsel, three related to the Alabama incident which the court ruled admissible, and no objection was voiced by defendant to those remaining, all but one of which related to his alleged drug dealing. The last was the statement by his wife that on August 18, when defendant called her to come to the Days Inn, the reason he gave was that someone owed him money and that if he did not pay him, he was going to shoot the debtor.

Several obstacles waylay this claim. For one, “[ijnduced error is impermissible.” Edwards v. State, 235 Ga. 603, 604 (2) (221 SE2d 28) (1975); Farmer v. State, 180 Ga. App. 720, 722 (5) (350 SE2d 583) (1986). For another, “[ajppellate courts review enumerations for correction of errors of law committed by the trial court — where motions or objections are properly presented for a ruling by the trial court. [Cit.] Enumerated errors which raise issues for the first time ... on appeal present nothing for review. [Cit.]” Fowler v. State, 155 Ga. App. 76 (2) (270 SE2d 297) (1980); see Pulliam v. State, 236 Ga. 460, 465, supra; Sharp v. State, 183 Ga. App. 641, 643 (4) (360 SE2d 50) (1987) .

6. Enumerations 5, 8, and 9 claim error in the court’s failure to give limiting instructions concerning the other crimes at the time they were introduced, citing Head v. State, 253 Ga. 429 (322 SE2d 228) (1984); that the charge given by the court at the close of evidence was inadequate concerning “like acts”; and that the court failed to instruct the jury sua sponte that it should disregard testimony of defendant’s general character.

Defendant urges that, although no objection to the introduction of these incidents was made, the trial judge was nevertheless required to give limiting instructions each time such a reference occurred. Head does not so hold. The charges there were armed robbery and possession of a firearm by a felon. One of the prior convictions introduced was for armed robbery, and the primary issue was whether the charges should have been severed. The court criticized the lower court’s failure to limit the purpose for which the prior convictions were introduced, i.e., as an element of one of the crimes. Here, as acknowledged by defendant in Enumeration 8, the court did give a limiting charge.

As to the charge’s adequacy, defendant waived the point because he made no objection, although specifically asked if there was any, and he did not reserve the right to make objections later. Sharp, supra at 643. We do not find substantial error as defined in OCGA § 5-5-24 (c).

Barnett v. State, 178 Ga. App. 685 (344 SE2d 665) (1986) is not persuasive. There, in addition to the fact that no objection was made by defendant to the evidence or the charge, the evidence of sexual and physical child abuse and neglect were totally extraneous to the assault-against-an-officer charge for which defendant was being tried. Here, the Alabama incident was properly allowed into evidence, the charged incident was a marijuana charge, and one of the now objected-to incidents was elicited by defendant. A waiver of the right not to have his character placed into evidence occurred. See Rich v. State, 254 Ga. 11, 14 (1) (325 SE2d 761) (1985).

7. In Enumeration 6, defendant seeks reversal pursuant to his contention that the trial court failed to perform its duty under OCGA § 17-8-75, in that the prosecution violated the court’s order prohibiting the State from introducing evidence concerning the marijuana in the dumpster.

Defendant is correct that his wife testified concerning defendant’s dumping the bag into the dumpster, but this came in response to the following question: “Now, after that particular incident, and after the Burroughs [defendant’s brother and sister-in-law] called the police on that, [referring to the delivery of marijuana to Jonathan, ruled admissible by the court] what was the status of your relationship with your husband?” Mrs. Smith related in detail her husband’s decision to return and deliver the remaining marijuana to Jonathan and the ultimate disposal of it. The State followed up by asking if she was present when it was disposed of and where it was disposed of.

In asking the question which first elicited the complained-of testimony, the State did not violate either the order or USCR 31.3. There is no indication that the State expected this to be the response to the initial question asked. Defendant did not object, move to strike, request instructions, or move for mistrial. He may not allow evidence to be introduced and then demand reversal.

Decided March 11, 1988.

Franklin D. Smith, pro se.

Carl Greenberg, for appellant.

Robert E. Wilson, District Attorney, Barbara Conroy, Nelly Withers, Assistant District Attorneys, for appellee.

OCGA § 17-8-75 specifically prohibits statements by the prosecutor of prejudicial matters which are not in evidence, and also prohibits statements of a prosecutor’s personal belief in the guilt of the accused, even if phrased in the form of a question. Castell v. State, 250 Ga. 776, 789 (8) (301 SE2d 234) (1983). Neither of these situations is present here.

As reflected in Stanley v. State, 94 Ga. App. 737 (1) (96 SE2d 195) (1956) and Brown v. State, 118 Ga. App. 617 (165 SE2d 185) (1968), cited by defendant, the improper insertion of a defendant’s character into evidence by a prosecutor is grounds for a motion for mistrial, and if the mistrial is denied, the court has an obligation to instruct the jury that the defendant’s character is not in issue. Defendant, however, must object to such questioning or any objection is waived. Ford v. State, 256 Ga. 375, 381 (6) (349 SE2d 361) (1986); Wright v. State, 253 Ga. 1, 4 (3) (316 SE2d 445) (1984); Gaines v. State, 179 Ga. App. 623, 625 (2) (347 SE2d 673) (1986).

8. Enumerations 10 and 11 deal with sentencing, defendant contending that improper matters were considered and that he was sentenced beyond the statutory máximums for the possession count and the terroristic threat count.

The State concedes that he was sentenced to more than the statutory maximum, and the case is remanded also for resentencing according to law. The remaining contention need not be considered.

Judgment affirmed as to convictions on all counts and as to sentences on Counts 3, 4 and 5; sentences on Counts 1 and 2 vacated; case remanded for rehearing as directed in Division 1 and for resentencing as directed in Division 8. McMurray, P. J., and Sognier, J., concur.


text:
    75131, 75132.
    NICHOLS v. THE STATE (two cases).
    (367 SE2d 266)
   Beasley, Judge.

Nichols appeals his convictions and sentences for trafficking in cocaine by actually possessing more than twenty-eight grams of cocaine, OCGA § 16-13-31 (a) (1), and for possessing marijuana with intent to distribute, OCGA § 16-13-30 (b) and from the denial of his motion for new trial in Case No. 75131. He also appeals the denial of his motion for supersedeas bond in Case No. 75132.

Case No. 75131

1. Appellant contends that the trial court abused its discretion when it sua sponte excused a juror for cause, that the act was arbitrary and capricious with no basis in law.

During questioning by the State on voir dire, the excused juror stated that he had known the defendant for twenty years; that he went to school with him; that he felt he could judge defendant fairly; that he had not heard a thing about the case; that he had not discussed the case with anyone; that he had seen the defendant the night before at a funeral home and at that time did not know defendant was going to be on trial; that he did not talk to the defendant much about it; that he had not seen the defendant in two or three years prior to the evening before; that he did not know defendant’s wife but knew some of his brothers; that he had not discussed the case with the brothers; and that he did not know defendant had a criminal case pending, having “heard that he beat it.” Without request, the court excused the juror for cause. Defendant stated simply that he objected, the court noted the objection, and voir dire proceeded.

At the conclusion of voir dire, defendant asked to record his objection to the court’s excusing the juror for cause. The court stated: “Yes, sir. I’m a little upset about that man. I heard him talking about something about the case one morning, the first morning I came over here. I didn’t recognize him until he stood up, and I didn’t want to embarrass him or say anything about it, but he was in a little restaurant that I had stopped in and he told the lady there that he was on the jury and something about it was a good case coming up, and so I recognized who he was at the time and I didn’t feel like that he should be on the jury, particularly in light of what he said. . . .”

“Challenges for favor, in a criminal case, are based on admission by the juror that he is biased for or against one of the parties, in response to questions authorized by OCGA § 15-12-164, i.e., whether the juror has formed and expressed an opinion as to the guilt or innocence of the accused, has prejudice or bias for or against the accused, is perfectly impartial between the state and the accused, and in capital felony cases is not conscientiously opposed to capital punishment.” Harris v. State, 178 Ga. App. 735, 736 (1) (344 SE2d 528) (1986). “The trial court may, on its own motion, and in the exercise of sound discretion, excuse an incompetent juror at any time before evidence is given.” Norris v. State, 250 Ga. 38, 39 (1) (295 SE2d 321) (1982). We will not reverse absent a manifest abuse of that discretion. Harris, supra at 736 (1).

The State disclosed at trial that it had evidence of jury tampering in Nichols’ first trial, which was mistried for want of a verdict. There was also concern about an attempt at jury tampering in the present trial to the extent that the State moved successfully for jury sequestration. A prospective juror related that when he had gone to pay respects at a funeral home, he was asked by people who knew Nichols if Nichols’ case was coming up for trial that week.

Where the court had reason to believe there was the possibility of jury tampering, had observed what appeared to be an inappropriate exchange between the juror and others, and learned that the juror had known defendant for twenty years, the court did not abuse its discretion in excusing the juror for cause on its own motion.

2. Appellant contends that the court erred by restricting cross-examination of a GBI agent regarding the search warrant affidavit because the court indicated that if defendant desired to so question the agent, it would be inclined to allow admission of the entire warrant and affidavit.

When the jury was absent counsel stated to the court that the agent had testified outside the jury’s presence that the confidential informant referred to in the affidavit had given information to law enforcement officers in the past which led to the seizure of controlled substances and stolen items, and that contrarily the informant had testified that he never gave any assistance to any' law enforcement officer before Nichols’ case. Defense counsel wanted to recall the agent to establish that either the informant had not given truthful testimony or that the affidavit was false, and he wanted to get a prior ruling from the court in the matter.

The court responded that it had no objection to defendant’s recalling the agent. After ascertaining that the original warrant had not been introduced into evidence, the court asked whether counsel was going to introduce it and opined that he would have to. Defense counsel responded that he did not want to introduce the entire affidavit because parts were “not relevant to the point I am making.” The court stated that if defendant selected portions out of context, the state would have the right to introduce the entire affidavit. Defense counsel asked the court to make exception “because of the obvious conflict in the testimony between the two State’s witnesses,” and the court indicated that it would not force either side to introduce any part but that both had that right. The defense reiterated its reason for offering only part of the affidavit as being relevant for impeachment and the court stated that other parts might be relevant as well. Defendant asked to make inquiry outside the jury’s presence to see if there were any other parts relevant to impeachment. The court declined and again stated it would permit introduction of any portion of the affidavit but if the State then wanted to introduce the remainder it could. Defense counsel stated that that was “all right,” and the jury was brought back. There was no objection by defendant, and the GBI agent was not recalled.

“ ‘ “In order to be in a position to complain of the abridgement of the right of cross-examination, a party to a legal proceeding or his counsel must either ask the questions he desires to ask or state to the court what questions he desires to ask and then interpose timely objection to the ruling of the court denying the right to propound the questions.” [Cit.]’ [Cit.]” Favors v. State, 166 Ga. App. 764 (1) (305 SE2d 475) (1983).

The court did not deny defendant the right to recall the agent and to ask the desired questions. It merely indicated that any questioning regarding the affidavit would permit its entire introduction. The choice not to recall the agent was a tactical decision, not a response to any denial of the right to further question the agent. Moreover, there was no objection whatsoever to the court’s final ruling, and thus there can be no complaint. Id.

3. Appellant contends that his conviction for trafficking in cocaine should be set aside under the rationale of Robinson v. State, 256 Ga. 564 (350 SE2d 464) (1986) and Blount v. State, 181 Ga. App. 330 (352 SE2d 220) (1986).

Robinson and Blount dealt with the legislature’s repeal of subsection (a) of OCGA § 16-13-31 and its enactment of a new law without inclusion of a saving clause. Robinson, supra at 565, held that “[w]hen a statute making described conduct a crime is repealed prior to final judgment on a conviction, the repeal ends the prosecution if the legislature has not provided otherwise in a saving clause.” Robinson and Blount were charged with being unlawfully, knowingly and actually in possession of “ ‘more than 28 grams of a mixture containing cocaine ...,’” tracking the then in force cocaine trafficking statute. Effective July 1, 1986, OCGA § 16-13-31 (a) (1) redefined the offense as “knowingly in actual possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine, . . .’’In other words, by the time the defendants in Robinson and Blount were tried and convicted, the act for which they were charged, i.e., unlawfully, knowingly, and actually possessing more than 28 grams of a mixture containing cocaine, no longer constituted the crime of trafficking in cocaine. Nichols’ case differs.

Decided March 11, 1988.

James H. Whitmer, for appellant.

C. Andrew Fuller, District Attorney, Daniel Summer, Assistant District Attorney, for appellee.

While it is true that Nichols was indicted under former OCGA § 16-13-31 (a) and convicted after the statutory change, as were the defendants in Robinson and Blount, Nichols, was charged with unlawfully and actually possessing “more than 28 grams of cocaine,” not 28 grams of a mixture containing cocaine. The evidence authorized the jury to find that Nichols was in actual possession of 98.8 grams of cocaine with an 80% purity, i.e., 79.04 grams of pure cocaine. Therefore, Nichols’ conviction was authorized under the redefinition of the crime of trafficking in cocaine, as well as under former OCGA § 16-13-31 (a), and is not violative of the mandates of Robinson and Blount. Brown v. State, 181 Ga. App. 768, 773 (3) (353 SE2d 572) (1987).

4. In a supplemental enumeration of error and brief filed several months after this appeal was docketed, appellant argues that Daniels v. State, 183 Ga. App. 651 (359 SE2d 735) (1987), applying Franks v. Delaware, 438 U. S. 154 (98 SC 2674, 57 LE2d 667) (1978), required that he be given a hearing as to whether or not the search warrant affidavit contained false statements fatal to the existence of probable cause. Although defendant raised the issue of the affidavit in regard to its use for impeachment of certain state’s witnesses in assessing a defense decision to recall such witnesses, see Division 2 supra, the issue now urged was not raised below. Defendant did not request any hearing by way of motion to suppress or otherwise on the question of an alleged lack of probable cause to issue the search warrant.

“A supplemental enumeration of error and brief filed after the 20-day period allowed for filing of enumerations of error and briefs in support thereof cannot be used to raise new issues even though the original filing was within the 20-day period. [Cit.] In the absence of objection below, nothing is presented to this court for review. [Cits.]” Allen v. State, 150 Ga. App. 605, 607 (3) (258 SE2d 285) (1979).

Case No. 75132

1. Inasmuch as defendant’s convictions stand, the appeal of the propriety of denying bond pending substantive appeal is moot and is dismissed. Davis v. State, 164 Ga. App. 633, 637 (7) (298 SE2d 615) (1982).

Judgment affirmed in Case No. 75131. Appeal dismissed in Case No. 75132.

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


text:
    75252.
    GUEST v. THE STATE.
    (367 SE2d 105)
   McMurray, Presiding Judge.

Defendant was indicted for the offense of aggravated assault. The evidence adduced at trial, construed most favorably to support the verdict, was as follows: On July 6, 1986, defendant was an inmate at the Georgia Industrial Institute, a correctional facility of the Georgia Department of Corrections. At approximately 9:30 that evening a violent disturbance broke out among the inmates in the dormitory where defendant resided. During the uprising, defendant stabbed Leslie Jerome Mitchell (the victim) in the right jaw, neck and shoulder with a “philips head screwdriver.” From this and other evidence adduced at trial, defendant was found guilty and this appeal followed. Held:

1. In his first enumeration of error, defendant contends “[t]he trial court erred by refusing to hear [his] Challenge to the Array of the Jury, and denying the motion that a new jury be impanelled.” Defendant filed a written motion challenging the array of the traverse jury prior to voir dire. In his motion, defendant alleged that “of seventy-two jurors empaneled to try cases at this setting of the Habersham Superior Court only one is black, or 1.2% of the entire panel [and that the] array of traverse jurors put upon [him] does not represent a fair cross-section of the community of Habersham County, Georgia and thus denies [his] rights under the Fifth, Sixth and Fourteenth Amendments of the Constitution of the United States.” The trial court held that this motion was untimely filed and did not conduct a hearing to determine the merits of defendant’s motion, although the court did state “[assuming all of these facts are true, I’m going to overrule your motion.”

“Under Georgia law, a criminal defendant must raise a challenge to the jury array at or before the time the jury panel is first ‘put upon’ him (unless he has been prevented from doing so); if he does not object at that time, he waives his right to raise such a claim later at trial or on direct appeal. Holsey v. State, 235 Ga. 270, 219 SE2d 374, 376 (1975); Young v. State, 232 Ga. 285, 206 SE2d 439, 442 (1974); Cobb v. State, 218 Ga. 10, 126 SE2d 231, 239 (1962), cert. denied, 371 U. S. 948, 83 S.Ct. 499, 9 LE2d 497 (1963). Most prior Georgia cases applying this rule involve defendants who waited until after trial to challenge the jury array. Georgia statutes and case law indicate, however, that a jury is put upon’ a defendant at the time that the jury array is seated and voir dire commences.

“The applicable sections of the Georgia Code provide that: . . . The clerk shall make out three lists of each panel and shall furnish one to the prosecuting counsel and one to the counsel for the defense. The clerk shall then call over the panel and it shall immediately be put upon the accused. “OCGA § 15-12-161 (formerly Ga. Code § 59-802); and that: The accused may, in writing, challenge the array for any cause going to show that it was not fairly or properly impaneled or ought not be put upon him. The court shall determine the sufficiency of the challenge at once. If sustained, a new panel shall be ordered; if not sustained, the selection of jurors shall proceed. OCGA § 15-12-162 (formerly Ga. Code § 59-803). This has long been the law in Georgia. See Whitworth v. State, 155 Ga. 395, 117 SE 450 (1923); Felker v. Johnson, 53 Ga. App. 390, 186 SE 144 (1936).

“More recently, the Georgia Supreme Court held that a claim by a state habeas corpus petitioner that his jury was improperly drawn ‘should have been, but was not, raised by a timely challenge to the array before the jurors were put upon him and his failure to do so amounts in law to a forfeiture of that right.’ Buxton v. Brown, 222 Ga. 564, 150 SE2d 636, 637 (1966). The court in Buxton cited in support of its holding one of its earlier decisions in which the court stated that an objection to the traverse jury array in a criminal case ‘must be raised by a challenge to the array at the earliest opportunity the defendant has to avail himself of that right.’ Cobb v. State, 126 SE2d at 239. These cases indicate to us that, in order to avoid waiving any right to challenge the composition of a traverse jury on appeal, a defendant must raise such a challenge prior to the commencement of voir dire.” Spencer v. Kemp, 781 F2d 1458, 1463-1464 (11th Cir. 1986).

In the case sub judice, since defendant’s written motion challenging the jury array was raised at trial prior to voir dire, the trial court was obligated under the authority cited in Spencer v. Kemp, supra, to conduct a hearing to determine the validity of defendant’s claim. Consequently, this case must be remanded to the trial court for a hearing and for appropriate findings concerning only the issue raised by defendant’s challenge to the array. Should further review of the issue raised by defendant’s challenge to the array be necessary, the appropriate appellate procedure shall be followed for such review.

2. In his second enumeration of error, defendant contends the trial court erred in “refusing to allow [him] to develop evidence regarding previous incidents of violence by the victim and a group of inmates from Atlanta and by ruling that the correctional officer’s log book was inadmissable [sic].” Defendant argues that this evidence was relevant to his defense of “justification and self-defense” as it displayed “the setting in which the alleged crime took place.”

Although defendant has failed to refer to any page or pages in the trial transcript to support his enumeration of error, we have examined the entire trial transcript and find that the trial court sustained the State’s objections to defendant’s questions regarding past incidents of violence at the prison in general, past incidents of violence between the victim and third persons and incidents of violence at the prison contained in a log book maintained by officers at the correctional facility.

Decided March 11, 1988.

Ronald M. Adams, for appellant.

Michael H. Crawford, District Attorney, Leonard Geldon, Assistant District Attorney, for appellee.

Contrary to defendant’s assertions, we find evidence of violence at the prison in general, whether admitted through the “correctional officer’s log book” or by direct testimony, irrelevant to defendant’s stated defense of “justification and self-defense.” Further, assuming “the victim’s general character for similar violent acts was properly at issue, evidence of prior specific acts of violence by the victim against third parties is not admissible proof of such.” McFadden v. State, 171 Ga. App. 447, 448 (2) (319 SE2d 878), and cits. This enumeration of error is without merit.

Judgment affirmed and case remanded for a hearing as directed in Division 1.

Sognier and Beasley, JJ., concur.


text:
    75350.
    AMASON et al. v. WHITEHEAD.
    (367 SE2d 107)
   Beasley, Judge.

In 1986 Whitehead brought suit against W. R. Amason, individually, and W. R. Amason, d/b/a Amason, Incorporated, in which he sought to recover sums allegedly due him for performing various masonry cleaning services during the first half of 1984. Defendants answered and Amason, Inc. filed a counterclaim for Whitehead’s failure to perform his services in a workmanlike manner.

In essence the facts were that Whitehead was promised payment in full but received only part, the remainder being refused. Amason sought to prove that the remaining sums were withheld because of unsatisfactory work.

The verdict was against Amason for the full amount sought, against Amason, Inc. for $1.00, and against its counterclaim. Amason’s trial motion for directed verdict and his subsequent motion for judgment n.o.v. were denied. On appeal, defendants contend that these were errors because the verdict against Amason in an amount exceeding that of the corporation cannot stand and also because the evidence failed to sustain a piercing of the corporate veil.

There was evidence that Amason was either the sole or principal shareholder of several corporations including defendant, which had ceased doing business and had no assets at trial time. The records showed a course of dealings between Whitehead and Amason, Inc. Checks were issued by the corporation to Whitehead, and the “Subcontractor Money Estimate Forms” listed Whitehead as the subcontractor and Amason, Inc. as contractor.

Whitehead sought to “pierce the corporate veil” and establish that Amason was actually the party with whom Whitehead dealt. There was testimony that Whitehead was told by an employee that Amason “would be my real boss, who I really was working for.” There was evidence that Amason directed Amason, Inc.’s activities but was paid for his services by another corporation he controlled, which corporation was reimbursed by Amason, Inc. for those services. There was no evidence of fraud or chicanery.

Amason’s argument regarding the imposition of damages is without merit. If the jury was authorized to disregard the corporate entity, then it was not error for it to impose the entire sum of damages against the defendant, especially since the parties agreed during pretrial to separate'verdicts against each of the defendants. See in this connection Jones v. Maghdoussian, 159 Ga. App. 839, 841 (2) (285 SE2d 267) (1981); C & W Land Dev. Corp. v. Kaminsky, 175 Ga. App. 774, 776 (2) (334 SE2d 362) (1985). The crucial question is whether the evidence permitted the jury to reach behind the corporate entity and hold its operative individually liable.

“While upon equitable principles the legal entity of a corporation may be disregarded,” Broyles v. Johnson, 99 Ga. App. 69, 71 (107 SE2d 851) (1959), great caution should be exercised by the court in doing so. Farmers Warehouse v. Collins, 220 Ga. 141, 150 (137 SE2d 619) (1964). It held that in order to disregard the corporate entity because a corporation is a mere alter ego or business conduit of a person, it should have been used as a subterfuge so that to observe it would work an injustice. To prevail based upon this theory it is necessary to show that the shareholders disregarded the corporate entity and “made it a mere instrumentality for the transaction of their own affairs; that there is such unity of interest and ownership that the separate personalities of the corporation and the owners no longer exist.” Id. at 150.

“ ‘The concept of piercing the corporate veil is applied in Georgia to remedy injustices which arise where a party “has over extended his privilege in the use of a corporate entity in order to defeat justice, perpetuate fraud or to evade contractual or tort responsibility.” ’ ” Jenkins v. Judith Sans Intl. 175 Ga. App. 171 (1) (332 SE2d 687) (1985). Because the cardinal rule of corporate law is that a corporation possesses a legal existence separate and apart from that of its officers and shareholders, Raynor v. American States Ins. Co., 176 Ga. App. 564, 565 (1) (337 SE2d 43) (1985), the mere operation of corporate business does not render one personally liable for corporate acts. Trans-State v. Barber, 170 Ga. App. 372, 374 (1) (317 SE2d 242) (1984). Sole ownership of a corporation by one person or another corporation is not a factor, Barnes v. Finnegan Enterprises, 150 Ga. App. 430 (1) (258 SE2d 55) (1979), and neither is the fact that the sole owner uses and controls it to promote his ends. Condenser Svc. v. Brunswick Port Auth., 87 Ga. App. 469, 474 (4) (74 SE2d 398) (1953).

Decided March 11, 1988.

There must be evidence of abuse of the corporate form. Ellis v. Edwards, 180 Ga. App. 301 (348 SE2d 764) (1986). Plaintiff must show that the defendant “disregarded the separateness of legal entities by commingling on an interchangeable or joint basis or confusing the otherwise separate properties, records or control.” Earnest v. Merck, 183 Ga. App. 271, 273 (358 SE2d 661) (1987). Accord Northwest Preferred v. Williams, 184 Ga. App. 145, 147 (2) (360 SE2d 910) (1987).

There is no evidence of fraud, no abuse of the corporate form, no commingling of assets and not even a showing of corporate insolvency at the time of the transaction, but only that at the time of trial the corporation had no assets. Compare Johnson v. Lipton, 254 Ga. 326, 328 (1) (328 SE2d 533) (1985). “[O]ne who deals with a corporation as such . . . cannot, in the absence of fraud, deny the legality of the corporate existence for the purpose of holding the owner liable.” Lamas v. Baldwin, 140 Ga. App. 37, 40 (1) (230 SE2d 13) (1976). See in this connection OCGA § 14-5-4; Cahoon v. Ward, 231 Ga. 872, 874 (204 SE2d 622) (1974).

The evidence was insufficient to warrant piercing the corporate veil and the verdict against Amason individually cannot stand. Earnest, supra; Ellis, supra; Jenkins, supra; Hogan v. Mayor &c. of Savannah, 171 Ga. App. 671, 673 (3) (320 SE2d 555) (1984); Williams Plaza v. Sedgefield Sportswear, 164 Ga. App. 720, 723 (297 SE2d 342) (1982); Florida Shade &c. Growers v. Duncan, 150 Ga. App. 34 (256 SE2d 644) (1979); Sturdivant v. Chapman, 146 Ga. App. 26, 28 (2) (245 SE2d 311) (1978). The judgment is reversed with direction that the trial court enter judgment for Amason individually in accordance with his motion for judgment n.o.v.

Judgment reversed with direction.

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

Arnold S. Kaye, for appellants.

Robert K. Finnell, for appellee.


author: Sognier, Judge.

text:
    75435, 75436.
    In the Interest of C. S. M.
    (367 SE2d 122)
    Decided March 11, 1988.

      Joseph J. Saia, for appellant.

      Johnnie L. Caldwell, Jr., District Attorney, James E. Sherrill,

      Assistant District Attorney, for appellee.
   Sognier, Judge.

Two petitions alleging acts of delinquency by appellant were dismissed on appellant’s motion because the petitions were not verified as required by OCGA § 15-11-25. Because the petitions were dismissed without prejudice C. S. M. appeals. Although docketed as two appeals, the petitions relate to proceedings handled as one case against appellant in juvenile court, resulting in one judgment, and will be considered together.

1. Appellant contends the trial court erred by dismissing the petitions without prejudice. Appellant moved to dismiss the petitions with prejudice on the basis of our holding in R. A. S. v. State of Ga., 156 Ga. App. 366 (274 SE2d 752) (1980). The court granted appellant’s motion to dismiss the petitions because they had not been verified, but dismissed the petitions without prejudice.

Pretermitting the question of whether the petitions should have been dismissed with prejudice, we find that the issue raised by appellant is moot. The general rule is that if the defendant would receive no benefit by reversal of the case, it is moot. Chaplin v. State, 141 Ga. App. 788, 789 (1) (234 SE2d 330) (1977). In the instant case the petitions have been dismissed, and the record does not reflect that any further proceeding based on the same alleged misconduct is pending against appellant in juvenile court. Hence, no benefit would accrue to appellant by our reversal of the case. Any contention that appellant would be prejudiced if the State should seek to reinstitute proceedings based on the same conduct is premature. See Bryant v. State, 163 Ga. App. 872, 875 (2) (296 SE2d 168) (1982). Hence, there is nothing for us to review.

2. In view of our decision on this issue, we need not address appellant’s other enumeration of error, since the petitions against him have been dismissed.

Appeal dismissed.

McMurray, P. J., concurs. Beasley, J., concurs in the judgment only.


text:
    75549.
    BPI CONSTRUCTION COMPANY et al. v. COLLECTIVE FEDERAL SAVINGS & LOAN ASSOCIATION.
    (367 SE2d 269)
   McMurray, Presiding Judge.

This is an appeal from an order confirming a non-judicial foreclosure sale of real property. Petitioner Collective Federal Savings & Loan Association provided a loan to respondent BPI Construction Company evidenced by a note and secured by a warranty deed to secure debt. Respondent Bales guaranteed payment of the note. The purpose of the loan was for BPI Construction Company to acquire a tract of land and construct a condominium community.

The loan was declared in default and on July 1, 1986, petitioner Collective Federal Savings & Loan Association foreclosed on 51 units of the condominium development. At the foreclosure auction the property was sold to petitioner Collective Federal Savings & Loan Association for $1,617,803.21 which was less than the indebtedness secured by the property. This confirmation proceeding followed.

At the hearing of the confirmation proceeding the parties stipulated that the foreclosure sale was properly conducted and that the only issue before the superior court was whether the property was sold at fair market value. In regard to valuation, the parties also stipulated that the fair market value of the property in its completed state was $2,950,000. Respondents appeal the superior court’s order confirming the sale. Held:

Petitioner’s appraisal expert testified that in his opinion the market value of the property on the date of foreclosure was $1,350,000. This figure was calculated by subtracting the cost to complete the project from the stipulated value ($2,950,000) of the completed project. Respondents acknowledge that the formula used by petitioner’s appraisal expert is correct, but contend that the estimated cost to complete the project used by petitioner’s appraisal expert was fatally flawed.

Petitioner’s expert cost estimator first visited the site of the condominium project in October. His estimate of cost to complete the project was dated November 17, 1986. At trial, the petitioner’s cost estimator declined to express an opinion as to the cost of completion as of the date of foreclosure, July 1,1986, stating that he did not have knowledge of what the project looked like on that date.

The petitioner’s appraiser adjusted the figure given by petitioner’s cost estimator to compensate for deterioration of the project during the four and one-half months between the date of foreclosure and the date of the estimate of cost to complete. In doing so, petitioner’s appraiser reduced the cost to complete estimate by approximately $50,000. Respondents contend that the petitioner’s appraiser was not competent to make this adjustment to the cost estimate, relying on the appraiser’s testimony that he was not “qualified to do an independent cost estimate on a project like that.” Regardless of the merits of this contention, the record contained sufficient evidence to permit the trial court to determine that the sale brought at least the true market value of the property.

Decided March 11, 1988.

R. Alex Crumbley, Rollin E. Mallernee II, for appellants.

Thomas E. Prior, Timothy J. Sweeney, for appellee.

Additional evidence presented by petitioner included photographs and a plat of the property, and a written report (dated November 17, 1986) of petitioner’s expert cost estimator including an itemized quantity survey and estimate of construction required to complete the buildings. The petitioner’s cost estimator also testified as to his inspection of the property including descriptions of what needed to be completed and which items appeared to have been in place prior to the inspections but subsequently damaged or removed. Also, the parties stipulated that petitioner sold the property on January 20, 1987, for $1,600,000.

The superior court judge, as trier of the facts, had sufficient data in evidence upon which he could apply his own knowledge and ideas so as to derive his own opinion as to the market value of the project at the time of the sale. There was ample evidence authorizing the conclusion that the foreclosure sale brought the true market value of the property. Fleming v. Fed. Land Bank of Columbia, 148 Ga. App. 765, 766 (1) (252 SE2d 653); Smith v. Andrews, 139 Ga. App. 380, 381 (228 SE2d 320); Thompson v. Maslia, 127 Ga. App. 758, 764 (4) (195 SE2d 238); Tifton Corp. v. Decatur Fed. Savings &c. Assn., 136 Ga. App. 710, 712 (3) (222 SE2d 115).

Judgment affirmed.

Sognier and Beasley, JJ., concur.


text:
    75608.
    APPLE v. APPLE.
    (367 SE2d 109)
   Beasley, Judge.

Mrs. Apple brought suit against Mr. Apple to domesticate the parties’ 1975 New York divorce decree, as amended in 1975 and 1978, and to attach Mr. Apple for contempt because he was $52,000 in arrears for alimony and child support payments. He moved to dismiss the complaint because the New York decrees were not final, being subject to retroactive modification, and thus not entitled to full faith and credit and domestication by this State. The trial court denied Mr. Apple’s motion, domesticated the New York decrees and set a hearing date on the contempt issues. We granted Mr. Apple’s application for interlocutory review and now consider his appeal.

The parties were divorced in July 1975 by a New York decree which awarded custody of two minor children to Mrs. Apple as well as $150 per week alimony and $50 per week for each child. The decree was technically amended in November 1975 and then substantially in March 1978 when the alimony payments were reduced to $75 per week and Mr. Apple was relieved of child support payments as to one of the two children. Upon Mr. Apple’s failure to make timely payments of alimony and child support, Mrs. Apple initiated proceedings in New York which reduced the arrearages to money judgments in April 1977 for $2,725, in August 1978 for $15,000, in June 1979 for $675, and in November 1983 for $15,500. These judgments are not part of the record.

In 1984 Mrs. Apple brought an action to domesticate the four money judgments in DeKalb State Court. She then brought the present suit to domesticate the New York divorce decrees in DeKalb Superior Court and dismissed the state court action. Mr. Apple contends that the trial court erred in concluding it had jurisdiction over the enforcement of arrearages under the New York divorce decree prior to its domestication in Georgia and in denying his motion to dismiss.

Final divorce decrees of other states are recognized under the full faith and credit clause. Even those which may be prospectively modified are properly domesticated and enforced in this state under principles of comity. Williamson v. Williamson, 247 Ga. 260, 262 (1) (275 SE2d 42) (1981); Blue v. Blue, 243 Ga. 22, 23 (252 SE2d 452) (1979). Nevertheless, judgments of other states which may be modified retroactively lack the requisite finality to be entitled to full faith and credit. Buck v. Buck, 151 Ga. App. 353, 354 (259 SE2d 736) (1979); Ryle v. Ryle, 130 Ga. App. 680, 685 (204 SE2d 339) (1974). See Tallman v. Tallman, 161 Ga. App. 447, 448 (287 SE2d 703) (1982). The cited cases follow the principles enunciated in Sistare v. Sistare, 218 U. S. 1, 17 (30 SC 682, 54 LE 905) (1910), which held that a judgment loses the protection of the full faith and credit clause “where by the law of the State in which a judgment for future alimony is rendered the right to demand and receive such future alimony is discretionary with the court which rendered the decree, to such an extent that no absolute or vested right attaches to receive the installments ordered by the decree to be paid, even although no application to annul or modify the decree in respect to alimony had been made prior to the installments becoming due.”

Traditionally, New York decrees involving alimony and child support were not final. An “alimony and support order was no more than a direction for the payment of sums of money from time to time in the future.” Bank of Lake Placid v. Rhino, 444 NYS2d 562, 563 (111 Misc2d 639) (1981). The support awarded in a matrimonial decree did not become a judgment debt enforceable by execution until the award was reduced to a money judgment pursuant to N.Y. Domestic Relations Law § 244, Gaines v. Gaines, 487 NYS2d 61, 63 (109 AD2d 866) (1985), because the original decree was subject to retroactive modification in the discretion of the trial court. Snow v. Snow, 190 NYS2d 902, 905 (1959); Rockwell v. Rockwell, 414 NYS2d 130, 132 (1979). Thus, a judgment for arrearage, not the divorce decree itself, was enforced under D. R. L. § 244 in the “manner provided by law for the collection of money judgments.” Tauber v. Lebow, 493 NYS2d 1008, 1010 (483 NE2d 1140) (1985) (ruling on statute of limitation modified by legislation effective August 7, 1987).

In 1986, effective August 5, D. R. L. § 244 was amended to provide that child support payments could not be changed retroactively and that, on application, judgment for amounts past due must be entered. As amended, the section was intended to supply summary relief for nonpayment of support. Werblud v. Werblud, 515 NYS2d 456, 458 (128 AD2d 194) (1987). No change was made as to alimony, which remained under a two-part test: in response to an application for past due alimony a defendant could seek retroactive downward revision upon a showing 1) of a change of circumstances of the parties warranting a retroactive reduction in the support obligation and 2) “good cause” on the part of the obligated party for the failure to move to reduce the obligation prior to the accrual of arrearages (with emphasis on the necessity of petitioning the court for modification prior to resorting to a “self-help” solution). Hornok v. Hornok, 504 NYS2d 660, 662 (121 AD2d 937) (1986). See Penziner v. Penziner, 507 NYS2d 45, 47 (123 AD2d 674) (1986).

Yet, either with regard to child support where the imposition is virtually automatic or to alimony where discretion still remains, a judgment must be entered before execution. Under D. R. L. § 245 one must have an order directing payment before attempting enforcement by contempt. Further, under that section contempt does not lie until it appears presumptively that payment cannot be enforced pursuant to sections relating to garnishment and seizure of property, sequestration, or a wage deduction order. “Such a finding by the court and the exhaustion of those other remedies are a prerequisite to a contempt order for violation of an order requiring payments of money in matrimonial actions.” Barreca v. Barreca, 430 NYS2d 739, 740 (77 AD2d 793) (1980). It is apparent that in New York contempt is not the readily available remedy that it is in Georgia support actions.

Decided March 11, 1988.

Janet Litt, for appellant.

Matthew S. Cornick, for appellee.

Based on the foregoing cases, our interpretation of the relevant authority in Georgia is that while decrees which are not final in the sense that they may be prospectively modified in the state of origin will be domesticated and enforced in this state, decrees which are susceptible to retrospective amendment and enforcement, while they may be domesticated under principles of comity, are not enforceable in Georgia as to amounts due prior to domestication. Otherwise, we would be giving rights to the parties and powers to the courts not available in the state of origin. “It is fundamental that under the Full Faith and Credit Clause the courts of this State are required to give only such effect to a judgment of a sister State as it would have in that State.” Crisp v. McGill, 229 Ga. 389, 390 (1) (191 SE2d 836) (1972).

Therefore, while it was not error to domesticate the 1975 and 1978 New York decrees, there was no basis to enforce an action for contempt based on unpaid sums allegedly owed under those decrees because, absent a reduction of the sums owed to judgment, they were not enforceable in New York. Furthermore a determination of the status of the four money judgments was premature since they were not properly before the court and their domestication was not sought by Mrs. Apple.

Judgment affirmed in part and reversed in part.

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


text:
    75656.
    MOFFIE v. OGLETHORPE UNIVERSITY, INC. et al.
    (367 SE2d 112)
   McMurray, Presiding Judge.

Plaintiff Moffie is a former Associate Professor of Psychology who was denied tenure at defendant Oglethorpe University, Inc. Plaintiff’s complaint alleges that defendant breached its contract with him by violating the procedures set forth in the Faculty Handbook which was incorporated by reference in his employment contract. The complaint also alleges that plaintiff’s reputation as a teacher and scholar has been damaged. Plaintiff appeals the grant of summary judgment in favor of defendant. Held:

Plaintiff’s appointment to the faculty of the defendant university from the 1979-80 academic year through the 1985-86 academic year was by a series of annual contracts. Each brief annual contract, which was less than one and a half typewritten pages in length, explicitly incorporates by reference certain portions of the Faculty Handbook. However, no explicit reference is made in the annual contracts to those portions of the Faculty Handbook dealing with appointment with tenure. Nonetheless, plaintiff was a tenure track employee. Tenure track faculty members were terminated upon completion of their seventh annual contract if such contract was issued without tenure.

Considering the obvious economic value of tenure, we view the consideration of tenure track academicians for that status as a form of compensation (albeit intangible). “It is the accepted law of this state that an additional compensation plan offered by an employer and impliedly accepted by an employee, by remaining in employment, constitutes a contract between them . . .” Fletcher v. Amax, Inc., 160 Ga. App. 692, 695 (288 SE2d 49). Thus, we conclude that those portions of the Faculty Handbook dealing with consideration for appointment with tenure and of which plaintiff was aware, form a part of plaintiff’s contract of employment. Shannon v. Huntley’s Jiffy Stores, 174 Ga. App. 125, 126 (329 SE2d 208).

Each tenure track faculty member was considered for tenure with the 5th, 6th and 7th annual contracts. Plaintiff’s action is predicated on his third and final consideration for tenure which occurred during the spring of 1985 or during the period covered by his sixth annual contract for the 1984-85 academic year. The contract covering this period was executed in April of 1984, so that the then-current 1981 edition of the Faculty Handbook supplies the tenure provisions at issue.

We must determine whether defendant has breached the contractual provisions regarding the procedures to be followed in considering plaintiff for appointment with tenure. Plaintiff suggests deviations from the procedures set forth in the Faculty Handbook. The first suggested deviation is without merit because it is predicated on provisions of the Faculty Handbook which relate only to limited or annual appointments.

Secondly, plaintiff relies upon a provision which provides that “when tenure decisions are to be made, the Dean and appropriate Division Chairperson . . . formalize and forward to the President a specific recommendation, with supportive data, as to whether or not the faculty member being considered should be offered tenure.” In the case sub judice, the Dean and Division Chairperson were not in agreement as to whether tenure should be granted plaintiff. We find nothing in the Faculty Handbook requiring that this recommendation be joint or unanimous. Therefore, we perceive no breach of the contractual provisions in the forwarding to the President of the conflicting recommendations of the Dean and the Division Chairperson. Additionally, we do not find, in the provision allowing supportive data to be attached to the recommendations forwarded, any requirement that all available data or any specific data be attached.

Decided March 11, 1988.

Theodore G. Frankel, Robert F. Waldon, for appellant.

Edward Katze, John L. Turoff, G. Michael Banick, Maria N. Sorolis, for appellees.

Under the provisions of the Faculty Handbook, the assembled data, including the recommendation of the Dean and the Division Chairperson, along with the recommendation of the President of defendant are presented to defendant’s Board of Trustees for final action. The Faculty Handbook provides that: “Tenure decision, with supportive data when called for by the person being evaluated, is then presented to the faculty member concerned, by the President or the Dean.”

Plaintiff contends that defendant has failed to provide him with the supportive data for the decision denying his appointment with tenure. While this contention may be correct there can be no damages arising from such a breach following the final decision against awarding tenure to plaintiff. The Faculty Handbook contains no provision for reconsideration of an adverse decision on tenure and all that is lost by such a failure is the satisfaction of plaintiffs curiosity.

Finally, we are not aware of any principle which would require defendant to provide plaintiff with an opportunity to request and receive a reconsideration of the decision of defendant’s Board of Trustees, although we do note in this connection that plaintiff was considered for tenure on two previous occasions.

The exercise of academic judgment alone governs the conferring of tenure. The uncontradicted evidence in the case sub judice is that plaintiff was afforded a procedure in substantial conformity with the contractual provisions. Consequently, the superior court did not err in granting defendant’s motion for summary judgment. OCGA § 9-11-56; Jones v. Clark, 182 Ga. App. 871 (357 SE2d 285).

Judgment affirmed.

Sognier and Beasley, JJ., concur.


text:
    75665.
    QUIKRETE COMPANIES v. SCHELBLE.
    (367 SE2d 114)
   McMurray, Presiding Judge.

Plaintiff Schelble brought an action against The Quikrete Companies, seeking damages for alleged defamatory statements which were published in a letter dated January 9, 1986, and prepared by defendant’s attorney. The letter was allegedly addressed to plaintiff and a copy forwarded to plaintiff’s employer.

Plaintiff contended that the letter dated January 9, 1986, was published with the intent to injure him in his profession “and is actionable per se.” In this vein, plaintiff moved for summary judgment and, in opposition, defendant asserted, among other defenses, that the letter was a privileged communication under OCGA § 51-5-7 (3). The trial court granted plaintiff’s motion for summary judgment and this appeal followed. Held:

“ ‘A charge made against another in reference to his trade, office or profession, calculated to injure him therein, is actionable per se unless made under circumstances which constitute it a privileged communication . . .’ Van Gundy v. Wilson, 84 Ga. App. 429, 429-430 (66 SE2d 93) (1951).” Sherwood v. Boshears, 157 Ga. App. 542, 543 (278 SE2d 124). OCGA § 51-5-7 (3) provides that “[statements made with a good faith intent on the part of the speaker to protect his interest in a matter in which it is concerned [are privileged communications].” The privilege provided by this Code subsection is conditional “because Georgia law allows recovery if the privilege is used as a cloak for the venting of the private malice. Code § 105-710 [now OCGA § 51-5-9].” Sherwood v. Boshears, 157 Ga. App. 542, 543, supra.

“ ‘[Wjhere the language used is actionable per se, malice is implied, except where the occasion of the utterance renders it privileged, in which case, while the occasion does not excuse if the accusation is maliciously made (Civil Code (1910), § 4437 [now OCGA § 51-5-9]), the burden is put upon the plaintiff to establish malice,’ citing the Lester [v. Thurmond, 51 Ga. 118] and Hendrix [v. Daughtry, 3 Ga. App. 481 (60 SE 206)] cases. (Emphasis supplied.) Lamb v. Fedderwitz, 71 Ga. App. 249, 253 (30 SE2d 436). Further “whether such communication is uttered maliciously is a question of fact for the jury trying the case to determine. [Cits.]” Lamb v. Fedderwitz, 71 Ga. App. 249, 252, supra.

In the case sub judice, the executive vice president of defendant corporation, deposed in his affidavit that he directed defendant’s attorney to write the letter which is the basis of this action “with a good faith intent to protect the [defendant] company’s interest in its confidential commercial information, and for the purpose of seeking the return of any confidential commercial information which [plaintiff] may have taken with him upon his departure from the [defendant] company and to assure that such information would remain confidential . . .” In his deposition, the executive vice president testified that a copy of the letter was forwarded to plaintiff’s employer as a “courtesy” after a telephonic inquiry regarding verification of plaintiff’s employment. Other evidence in the record indicates that defendant’s competitors may have access to business information which was provided to them by plaintiff. On the other hand, plaintiff fails to point to any direct evidence showing that defendant maliciously forwarded a copy of the letter to his employer. Under these circumstances, we find the evidence sufficient to create a question of fact with regard to defendant’s privilege and its “actual malice” in directing its attorney to forward to plaintiff and plaintiff’s employer the aforementioned letter. Consequently, assuming, without deciding, the above letter was actionable per se, the trial court erred in granting plaintiff’s motion for summary judgment.

Decided March 11, 1988.

Kent T. Stair, Douglas A. Wilde, for appellant.

Mark Jay Schultz, for appellee.

Judgment reversed.

Sognier, J., concurs. Beasley, J., concurs in the judgment only.

       Plaintiff’s employer is not involved in the production or sale of products similar to those related to defendant’s business. It appears, however, that deponent contacted plaintiffs employer to verify that plaintiff was not working for a competitor of defendant. According to deponent’s testimony, plaintiff’s employer informed him that plaintiff had been offered a job in the field of business in which defendant specialized but that plaintiff did not accept the offer.

       See OCGA § 51-5-7 (6) and 23 ALR4th 932, with regard to attorneys’ privilege and alleged defamatory statements made under the circumstances of a case in which an attorney is involved.