text:
    A96A0112.
    NATIONWIDE MUTUAL FIRE INSURANCE COMPANY v. WILEY.
    (469 SE2d 302)
   Beasley, Chief Judge.

Nationwide Mutual Fire Insurance Company appeals from a judgment based on a jury verdict in favor of its insured, Debra Wiley. The seven enumerated errors primarily dispute the denial of motions for directed verdict on several issues. For the reasons that follow, we affirm.

Nationwide issued Wiley a homeowner’s insurance policy in 1992, and less than one month later, the home was destroyed by fire. When Nationwide failed to pay her claim, Wiley sued. Following a four-day jury trial, a jury awarded Wiley $72,000 for the destroyed dwelling, $40,000 for the contents, and $20,000 for loss of use. The $132,000 total was subject to a set-off of $32,655.79 for Nationwide’s payment to the mortgagee.

1. Nationwide contends it was due a directed verdict as to the entire claim because Wiley materially misrepresented her ownership interest on the proof of loss forms, in that the property was owned by her husband who had died intestate in 1989 and the title was never placed in her name. Nationwide further claims that Wiley told the insurance agent she was the owner of the property when, in fact, she was not the sole owner. It argues that Wiley failed to accurately complete the paperwork and should have written, “Debra Wiley and children” or “the estate of Emmitt Wiley.”

When a policy of insurance is issued “where the agent has full and actual disclosure of the ownership of the property, the insurer waives its rights under the policy and is estopped to claim an avoidance of responsibility under the contract as written because of noncompliance with the conditions as to ownership which preclude coverage under the terms of the contract.” Barnum v. Sentry Ins., 160 Ga. App. 213, 217 (3) (286 SE2d 445) (1981). Holliday, the agent who arranged Wiley’s coverage, testified she knew Wiley was a widow with two minor children and that Wiley was acting on behalf of herself and her children in obtaining the insurance coverage. Holliday testified she actively solicited Wiley’s homeowner’s insurance coverage business and advised Wiley, “You need to do these things [obtain sufficient homeowner’s insurance coverage] to protect you and your family.” This knowledge estopped Nationwide from avoiding its contractual responsibility. Barnum, supra at 217. Moreover, there is no evidence to fulfill the requirement that “ ‘[i]t must appear that (an insured’s) false statements were made wilfully and intentionally for the purpose of defrauding the insurer.’ [Cit.]” Ga. Farm &c. Ins. Co. v. Richardson, 217 Ga. App. 201, 204 (457 SE2d 181) (1995).

2. Nationwide urges that Wiley made another coverage-precluding material misrepresentation in her application for insurance. Wiley told the agent the dwelling was a brick veneer house, purchased in 1989, but in fact it was a repossessed and renovated mobile home. The agent testified that had she known the residence was a mobile home, she could not have written an Elite II policy on it because it would not have qualified for that coverage.

Wiley presented evidence that the dwelling was not simply a bricked-up mobile home arid that while the base was at one time part of a mobile home, the house was built by Wiley’s late husband as new construction. Wiley testified in explicit detail explaining with great specificity how her husband had used the mobile home as a starting point but had extensively renovated, customized and altered both the interior and exterior. The jury heard evidence from both parties as to the nature of the home and viewed photographs taken both prior to and after the fire. Nationwide’s own agent took photos and inspected the home before the policy was ever issued. The jury resolved the conflicting evidence of fact in Wiley’s favor when it determined the policy covered the type of structure of Wiley’s home.

“There is a presumption in favor of the validity of verdicts. [Cits.] And ‘after rendition of a verdict, all the evidence and every presumption and inference arising therefrom, must be construed most favorably towards upholding the verdict.’ [Cit.]” Pepsi Cola Bottling &c. v. First Nat. Bank of Columbus, Ga., 248 Ga. 114, 115 (281 SE2d 579) (1981). A directed verdict was not appropriate.

3. Nationwide claims it was error to refuse to direct a verdict in its favor because Wiley failed to present any evidence as to the replacement cost or value of her home at the time it was destroyed by fire. It contends Wiley had the burden of proving the actual loss sustained pursuant to OCGA § 33-32-5, because the fire occurred within 30 days of the original effective date of the policy. In the alternative, the insurer argues that the judgment should be reduced by the difference between the property tax assessed value for the dwelling $42,053, and the policy amount for the dwelling $72,000.

The policy provided the measure of damages for the loss as being the replacement cost of the dwelling for equivalent construction. Wiley presented evidence of the county property tax assessment, and she testified without objection that the property was worth $75,000. As the basis for her valuation, she explained she was familiar with the value of properties in her area and that C. T. Financial Service had performed a professional appraisal of her home. The record also contains the real estate inventory form prepared for the probate court indicating the property was valued at $62,500 in 1990, several years earlier. Wiley testified extensively regarding the renovations her husband and his helpers installed, including the roofing, plumbing, electrical wiring, a sunroom, and new appliances. In great detail, she explained the layout and composition of the house, including its bay windows, double French doors, encased garden tub, and custom built-in cabinetry. All witnesses who saw the property after the fire agreed that the home and all of its contents were a total loss. This constituted evidence of the loss sustained.

It is undisputed that Nationwide denied Wiley’s claim. An absolute refusal by an insurer to pay within the time frame required under the contract waives the right of the insurer to insist upon compliance with the proof of loss provisions in a policy. Walker v. General Ins. Co., 214 Ga. 758 (107 SE2d 836) (1959); Ins. Co. of the West v. Dills, 145 Ga. App. 183 (243 SE2d 549) (1978); Gazaway v. Secured Ins. Co., 109 Ga. App. 428 (136 SE2d 531) (1964); General Accident Fire &c. Corp. v. Azar, 103 Ga. App. 215 (119 SE2d 82) (1961).

Moreover, the standard of appellate review of the denial of a directed verdict is the “any evidence” test. Southern Gen. Ins. Co. v. Holt, 262 Ga. 267, 268 (1) (416 SE2d 274) (1992). Because the record includes evidence from which the jury could determine the value of Wiley’s home, this enumeration fails.

4. Nationwide contends the court erred in entering the judgment for loss of use in the amount of $20,000 because Wiley presented no evidence to support it. The policy provided for payment of additional living expenses as follows: “If a covered loss requires you to leave the residence premises, we cover the required increase in living expenses you incur to maintain your normal standard of living. Payment will be for the shortest time required to repair or replace the premises.”

There was evidence that Wiley had been out of her home since the date of the fire on April 15, 1992. She testified she stayed in a hotel and in a rented house. Wiley testified that her monthly rental expense ranged between $500 and $550.

Furthermore, the record fails to show that Nationwide ever moved for a directed verdict on this loss of use issue although it sought seven separate directed verdicts on others. The motion for a directed verdict on the entire claim was based solely on the ground that Wiley did not accurately state her interest on the proof of loss forms. See Division 1. We do not consider issues raised for the first time on appeal,, because the trial court has not had opportunity to consider them. Dupree v. State, 206 Ga. App. 4, 5 (2) (424 SE2d 316) (1992).

Decided February 9, 1996

Reconsideration denied March 5, 1996

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

Carl A. Bryant, for appellee.

5. Nationwide claims it was entitled to a directed verdict for the amount of its advance payments to Wiley ($2,000) and to a $2,000 reduction in the jury verdict for the loss of use payments previously made. The jury heard Wiley testify she received a total of $2,000 from Nationwide for additional living expenses (loss of use). Because the jury did not award the policy limit on the loss of use claim, the record does not show that the jury did not reduce its award by that sum.

Judgment affirmed.

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

       At the time of the fire, Debra Wiley was the administratrix of her late husband’s estate and she is the natural guardian of two minor children, who were ages seven and nine.


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A95A1984.
    LANGTON v. DEPARTMENT OF CORRECTIONS et al.
    (469 SE2d 509)
   Judge Harold R. Banke.

Ann Langton, a former pre-release coordinator at a Department of Corrections Boot Camp, commenced this pro se action against the Department of Corrections (“DOC”) and several of its employees (collectively “defendants”) alleging several theories of recovery for wrongful termination of her employment. The trial court granted summary judgment to the defendants, and this appeal followed.

Langton worked at the DOC for approximately four months in 1992 when she was terminated due to a less than satisfactory performance review and her failure to submit to a psychological evaluation ordered by her supervisors. After her discharge, Langton filed a claim for unemployment benefits which was rejected by an administrative law judge, who determined she had been terminated for cause. The Department of Labor’s Board of Review subsequently affirmed this decision. Langton then appealed the decision to the superior court which also affirmed, finding no constitutional or statutory impropriety related to her discharge.

Almost two years later, Langton filed a complaint in federal court against the DOC alleging employment discrimination. The district court granted summary judgment to the DOC, finding that the judicial affirmance of the decision to deny Langton unemployment benefits precluded her from relitigating the issue of whether she was discharged for cause, and the Eleventh Circuit affirmed.

Langton filed the instant pro se action during the pendency of her action for unemployment benefits. Defendants moved for summary judgment on essentially the same ground asserted in the federal action, arguing that Langton’s claims were inconsistent with the prior judicial finding that she was fired for cause and were therefore barred by res judicata and collateral estoppel. Defendants also sought summary judgment based on Langton’s failure to pursue her tort claims under the Georgia Tort Claims Act by filing the mandatory notice under OCGA § 50-21-26. The trial court granted summary judgment. Held:

1. The trial court did not err in granting summary judgment. The doctrine of collateral estoppel “precludes the re-adjudication of an issue that has previously been litigated and adjudicated on the merits in another action between the same parties or their privies.” (Footnote omitted.) Waldroup v. Green County Hosp., 265 Ga. 864, 866-867 (463 SE2d 5) (1995). Privies “ ‘are in law so connected with a party to the judgment as to have such an identity of interest that the party to the judgment represented the same legal right. . . .’ (Cit.)” Pinkard v. Morris, 215 Ga. App. 297, 298 (1) (450 SE2d 330) (1994). When collateral estoppel applies, the issue may not be relitigated even as part of a different cause of action. Waldroup, supra; Norris v. Atlanta & West Point R. Co., 254 Ga. 684, 685 (333 SE2d 835) (1985).

Langton’s claim for unemployment benefits in 1993 was denied based on the finding that the DOC terminated Langton’s employment for cause. We agree with the district court’s finding that the superior court’s determination that Langton was terminated for cause precludes her from relitigating the issue. Compare OCGA § 34-8-122 (b) (dispositions by entities acting under the authority of the commissioner of labor have no preclusive effect in subsequent actions against the employer). Although Langton asserts multiple theories of recovery, the gravamen of her complaint in the instant action was that the DOC discharged her without cause. Inasmuch as the defendants include the DOC and its privies, the trial court properly granted summary judgment. Moreover, Langton’s failure to comply with the notice requirements of OCGA § 50-21-26 (a) (2) bars her tort claims. OCGA § 50-21-26 (a) (3). We therefore need not reach Langton’s enumerations which focus on official immunity and tortious interference with employment.

2. We decline to consider Langton’s contention that reversal is required due to the trial court’s failure to hold oral argument before granting summary judgment. Langton failed to provide citations to the record showing that she requested oral argument. Uniform Superior Court Rule 6.3 mandates oral argument only “upon written request.” “It is not the function of this court to cull the record on behalf of a party.” (Citation and punctuation omitted.) Manderson & Assocs. v. Gore, 193 Ga. App. 723, 733 (389 SE2d 251) (1989); see Court of Appeals Rule 27 (c) (3) (i).

Decided March 5, 1996.

Ann Langton, pro se.

Michael J. Bowers, Attorney General, Jeffrey L. Milsteen, Deputy Assistant Attorney General, for appellees.

3. Langton’s claim of judicial bias is not properly before this court. The record demonstrates that Langton failed to raise the issue of judicial bias in the trial court or request recusal. Accordingly, we cannot consider the issue. Scott v. State, 243 Ga. 233, 234-235 (253 SE2d 698) (1979); Mosier v. State Bd. of Pardons & Paroles, 213 Ga. App. 545 (445 SE2d 535) (1994).

In light of our finding that collateral estoppel bars this action, we need not reach Langton’s motions seeking change of venue and the withdrawal of the state attorney.

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.


text:
    A96A0227.
    LAWSON v. CRAWFORD.
    (469 SE2d 507)
   Judge Harold R. Banke.

Hal S. Crawford, the owner of commercial property rented by Ben Lawson and his former partner, M. David Parker, sued his tenants to recover $42,877, the rent owed for the entire term of the five-year lease. Lawson appeals from a judgment in the amount of $32,227 and attorney fees entered against him after a bench trial.

The record shows that Lawson and Parker entered into the lease at issue on May 24, 1989. After Lawson and Parker dissolved their partnership in May 1990, Lawson vacated the premises. In December 1991, Parker notified Crawford that he intended to surrender the premises at the month’s end due to financial problems. Parker vacated in January 1992, when he submitted his final rent check. When this check failed to timely clear Parker’s account, Crawford responded by demanding payment of late charges and inquiring whether Parker needed assistance in re-leasing the space. In February, Crawford notified Lawson and Parker that he intended to hold them responsible for the lease and lease payments but would try to find another tenant. Crawford subsequently entered the premises and cleared out the mess Parker left. Crawford also stored some janitorial supplies and lighting fixtures in the space for several months. In April 1992, Crawford notified Parker and Lawson that he did not accept surrender and would hold them liable for any deficiency in the rent owed.

Decided March 5, 1996.

Barbara J. Mastín, Jane E. Lawson, for appellant.

Levy & Adams, D. Merrill Adams, for appellee.

Crawford then filed this action, seeking to recover $42,877, the rent owed for the entire term of the lease. After finding that Crawford occupied the premises from March to September 1992, the trial court reduced the amount of damages claimed by $9,300, the rent for those months, and by the $1,350 security deposit. Held:

The trial court correctly calculated the amount of rent owed. “Under well-settled principles of Georgia law, a landlord’s possession of premises abandoned by a tenant does not constitute an acceptance of a surrender of the premises — or, as here — abandonment by the tenant. [Cit.] In such circumstances the landlord has the option of (1) terminating the lease, (2) obtaining another tenant while holding the original tenant liable for any deficiency that may occur, or (3) permitting the premises to remain vacant while collecting the agreed-upon rent from the original tenant.” Crolley v. Crow-Childress-Mobley #2, 190 Ga. App. 496, 497 (3) (379 SE2d 202) (1989).

The record fully supports the finding that Crawford chose the second of the above-stated circumstances, with his business, General Lighting Distributors, Inc., acting as tenant from March to September 1992. “A surrender of premises by a lessee has no legal effect until accepted by the lessor.” Kimber v. Towne Hills Dev. Co., 156 Ga. App. 401, 402 (1) (274 SE2d 620) (1980). The trial court’s implicit finding that Crawford never accepted surrender is not clearly erroneous. The absence of such acceptance distinguishes Rucker v. Tabor & Almand, 126 Ga. 132 (54 SE 959) (1906). See Noble v. Kerr, 123 Ga. App. 319, 320 (180 SE2d 601) (1971) (citing Rucker); accord Braswell v. Shurling, 87 Ga. App. 774, 777 (75 SE2d 213) (1953).

Judgment affirmed.

Pope, P. J., and Andrews, J., concur.

       The lease provided for a graduated rent structure which increased by $50 every year, starting at $1,200 per month, and also required the tenants to pay all ad valorem taxes.


author: Birdsong, Presiding Judge.

text:
    A95A1927.
    REAL ESTATE INTERNATIONAL, INC. et al. v. BUGGAY.
    (469 SE2d 242)
   Birdsong, Presiding Judge.

After the grant of authority for an interlocutory appeal, Real Estate International, Inc. (“REI”); Dagmar Sands, REI’s broker; and Pil Ja Kim, REI’s listing agent (collectively “Real Estate International”) appeal the denial of their motion for summary judgment in Larry Dwayne Buggay’s action for fraud and negligent misrepresentation arising from Buggay’s purchase of a house from Eun Chung and Agnes Chung, clients of Real Estate International. Buggay’s complaint alleged that Real Estate International represented that visible water damage and water standing under a house Buggay intended to buy was caused by a poor rainwater drainage system from a hill on the property, that repair modification, or correction of the drainage system would cure any future water damage, and that the property was in sound structural condition. Buggay asserts that the real reason for the water problems, however, was an underground spring under the house, that repairs to the drainage system did not cure the problems, and that the property was not structurally sound. Buggay further contends that Real Estate International misrepresented these facts with knowledge that these misrepresentations were false, or with reckless disregard for whether the representations were false, or intentionally actively or passively concealed material facts concerning the condition of the property, or innocently and negligently concealed facts concerning the condition of the property.

A realtor who is not a party to this action called the house to Buggay’s attention. With a friend, Buggay visited the vacant house on a rainy day. He noted that the house generally needed repairs and the roof was leaking. He stated later that “water was running down the wall. The fireplace had moisture all over it. The floor around the fireplace would — you could step through it. The carpet was all mildewed and, you know, smelly. We just looked at it in a general thing, you know, ‘Hey, we can make this house livable.’ ” Buggay also saw that the outside deck was rotting.

Nevertheless, Buggay, through the agent who brought the house to his attention, made an offer on the house that included a provision that the sellers would make repairs to the leaks. This provision was rejected by the sellers, and, with Buggay’s assent, a provision was added to the contract that stated Buggay would purchase the house in an “as-is condition, with no further repairs.”

With the assistance of the realtor who brought the house to his attention, Buggay arranged for a building inspector to examine the house. The inspector’s report noted that the roof leaked, the floor was rotting, water was leaking into the house from the chimney, the lot grade was inadequate, and there was water standing under the house in the crawl space. Moreover, the first page of the report stated, “Home is built on a sloping lot. Grade at foundation appears to be inadequate. Rear yard slopes toward house. Standing water in crawl space. Suggest further evaluation by a drainage specialist.” Buggay did not, however, arrange any further evaluation.

Although he did not speak to them directly, Buggay received information through his friend and the realtor that the previous owners said the water under the house was run-off from a hill in the backyard. Further, Buggay knew before he closed on the property that repairs by the Chungs to divert the supposed run-off were not keeping water from under the house and that there was a continuing water problem.

Despite this knowledge, Buggay continued with plans to purchase the house. Even though he spoke with the person who sold the house to the Chungs regarding assuming a second mortgage, he did not question this person about the water problems. Further, at the closing on the house, Buggay learned that the termite inspection report had not been completed because the termite inspector could not get under the house because of the standing water in the crawl space. When this problem was worked out through the assistance of Real Estate International, the closing was completed and Buggay purchased the house. Buggay ultimately filed suit against the Chungs, REI, Sands, Kim, and the person who sold the house to the Chungs.

After Buggay filed this action, Real Estate International denied liability and later moved for summary judgment contending that Bug-gay did not justifiably rely on any representations by Real Estate International because Buggay was aware of the water problem and was advised by the inspector that he hired to have the source of the water investigated. Moreover, Real Estate International contends that a clause in the sales contract disclaimed that Buggay relied upon representations made by Real Estate International when he purchased the property.

During the course of the litigation Buggay reached a settlement with the Chungs and summary judgment was granted to the person who sold the house to the Chungs. After Real Estate International’s motion for summary judgment was denied, this appeal was initiated.

On appeal, Real Estate International contends the trial court erred by denying summary judgment because there is no evidence there was an underground spring or that Real Estate International knew there was such a spring, no evidence of an intent to defraud, and no evidence of justifiable reliance by Buggay on any representations made by Real Estate International. Real Estate International further contends the trial court erred by denying summary judgment because Buggay failed to rescind the purchase and sale agreement and because the suit is barred by the “merger” and “entire agreement” clauses in the purchase and sale agreement. Held:

1. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). We review the trial court’s action on a motion for summary judgment in light of the record as existed at the time of the court’s ruling and not on the basis of how the record appears after subsequent supplementation or amendment. See Coker v. Culter, 208 Ga. App. 651, 652 (431 SE2d 443); Nowell v. Fain, 174 Ga. App. 592, 593 (330 SE2d 741). Further, in summary judgment proceedings the rules on admissibility of evidence apply, and hearsay has no probative value unless it is part of the res gestae. Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 65 (397 SE2d 576).

2. The essential elements of actionable fraud in cases such as this are that Real Estate International knew of the underground spring under the house, wilfully misrepresented the condition to Buggay, and Buggay justifiably relied upon Real Estate International’s representation and suffered damage. Wilhite v. Mays, 140 Ga. App. 816, 817 (232 SE2d 141), aff’d 239 Ga. 31 (235 SE2d 532). See also Webb v. Rushing, 194 Ga. App. 732, 733 (391 SE2d 709); Hester v. Wilson, 117 Ga. App. 435, 438 (160 SE2d 859). Because Real Estate International need eliminate only one essential element of Buggay’s claim to prevail at summary judgment (Lau’s Corp. v. Haskins, supra at 495), we need not address all the issues raised on appeal or in the motion for summary judgment to resolve this appeal.

Although “[q]uestions of fraud, the truth and materiality of representations made by a seller, and whether the buyer could have protected himself by the exercise of proper diligence are, except in plain and indisputable cases, questions for the jury[,]” (citation and punctuation omitted) del Mazo v. Sanchez, 186 Ga. App. 120, 127-128 (366 SE2d 333), the record shows it to be plain and indisputable that Bug-gay did not and could not have justifiably relied upon any representations regarding the water problems at the house. “One may fail to exercise due diligence as a matter of law.” (Citation and punctuation omitted.) Jung v. Cheoun, 216 Ga. App. 490, 492 (455 SE2d 310). In this instance the alleged misrepresentation concerned an existing characteristic of the property that Buggay could have discovered independently by following the recommendation of his own home inspector to obtain a report from a drainage specialist. See Crawford v. Williams, 258 Ga. 806 (375 SE2d 223); Kirven v. Blackett, 208 Ga. 178 (65 SE2d 791).

Here, the record shows that Buggay was aware from his first visit to the house that significant problems existed, that unsuccessful attempts were made to correct the problems, and that his own building inspector found problems with the drainage on the lot and recommended study by a drainage expert. This information was sufficient to warrant further inquiry by Buggay. “ ‘Notice sufficient to excite attention and put a party on inquiry shall be notice of everything to which it is afterwards found such inquiry might have led. Ignorance of a fact, due to negligence, shall be equivalent to knowledge, in fixing the rights of the parties.’ Goldman v. Hart, 134 Ga. App. 422 (3) (214 SE2d 670) (1975).” Webb v. Rushing, supra. Given the information available to him, Buggay failed, as a matter of law, to exercise due diligence. Ben Farmer Realty Co. v. Woodard, 212 Ga. App. 74, 77 (441 SE2d 421); Webb v. Rushing, supra. “The law does not afford relief to one who suffers by not using the ordinary means of information, whether the neglect is due to indifference or credulity. When the means of knowledge are at hand and equally available to both parties, and the subject of purchase is alike open to their inspection, if the purchaser does not avail himself of these means he will not be heard to say, in impeachment of the contract of sale, that he was deceived by the vendor’s representations or lack thereof.” (Citation and punctuation omitted.) Fincher v. Bergeron, 193 Ga. App. 256, 259 (387 SE2d 371).

Decided January 30, 1996

Reconsideration denied March 6, 1996

As justifiable reliance is an essential element of an action for fraud (Condios, Inc. v. Driver, 145 Ga. App. 537, 538 (244 SE2d 85)), the trial court erred by denying Real Estate International’s motion for summary judgment.

3. Buggay’s claim against Real Estate International for negligent misrepresentation must fail for the same reason. As the same principles apply to both fraud and negligent misrepresentation (Robert & Co. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. 680, 681 (300 SE2d 503); American Legion v. Foote & Davies, Inc., 193 Ga. App. 225, 227 (387 SE2d 380)), justifiable reliance is also an essential element of a claim asserting negligent misrepresentation. Therefore, Buggay’s failure to exercise due diligence, as a matter of law, also bars his negligent misrepresentation claim. Hightower v. Century 21 &c., 214 Ga. App. 522, 524 (448 SE2d 271). Thus, the trial court also erred by denying summary judgment on this claim. American Legion v. Foote & Davies, supra at 228.

Accordingly, the judgment of the trial court is reversed and the case remanded with direction to order summary judgment for REI, Sands, and Kim.

Judgment reversed with direction.

Johnson and Smith, JJ., concur.

Lefco & Blumenthal, Stanley M. Lefco, Ned Blumenthal, for appellants.

Donald E. Dyches, for appellee.


text:
    A95A2221.
    YOUREE v. STATE OF GEORGIA.
    (469 SE2d 208)
   Birdsong, Presiding Judge.

Donnie Youree, pro se, appeals the trial court’s denial of his motion to return $666 that was seized during a search. He maintains that the money should be returned because his motion to suppress was granted, because he was not properly served with notice of the forfeiture, and because the trial court erred by conducting forfeiture proceedings before disposition of the criminal charges.

The record shows that Youree was arrested in July 1993 as a result of information received from a confidential informant. While he was in jail pending trial, a civil forfeiture proceeding was initiated under OCGA § 16-13-49 (n), and after Youree failed to contest the forfeiture, on October 20, 1993, the money was declared forfeited and was distributed to certain police agencies.

In February 1994, however, the trial court granted Youree’s motion to suppress evidence seized in connection with his arrest and then dismissed the charge based on this arrest. Nevertheless, in March 1994, Youree pleaded guilty to other charges and was sentenced to confinement. Youree did not, however, request the return of the money at that time. Then on March 20, 1995, Youree filed a motion for the return of this money in the criminal case. After this motion was dismissed, Youree filed this appeal. Held:

Even assuming that Youree did not receive notice of the forfeiture proceedings, the trial court did not err by denying the motion to return Youree’s money within the context of the criminal proceedings. Under OCGA § 16-13-49 (k) property taken or detained under the forfeiture procedures is subject only to orders and decrees of the court having jurisdiction over the forfeiture proceedings; under OCGA § 16-13-49 (x) (4) “[n]o person claiming an interest in property subject to forfeiture under this article may commence or maintain any action against the state concerning the validity of the alleged interest other than as provided in this Code section. Except as specifically authorized by this Code section, no person claiming an interest in such property may file any counterclaim or cross-claim to any action brought pursuant to this Code section.” As no provision in OCGA § 16-13-49 authorizes a motion such as Youree employed in this case, the trial court did not err by denying the motion.

The proper method of making a post-judgment attack on a forfeiture is through OCGA § 9-11-60. See Lang v. State, 168 Ga. App. 693 (310 SE2d 276). Even though OCGA § 16-13-49 is a special statutory proceeding (Fulton v. State of Ga., 183 Ga. App. 570 (359 SE2d 726); State of Ga. v. Britt Caribe, 154 Ga. App. 476, 477 (268 SE2d 702)), the provisions of OCGA § 9-11-60 apply. OCGA § 9-11-81; Fulton v. State of Ga., supra.

Decided January 11, 1996

Reconsideration dismissed March 6, 1996.

Donnie Youree, pro se.

Charles H. Weston, District Attorney, Kirby H. Wincey, Jr., Laura D. Hogue, Assistant District Attorneys, for appellee.

Judgment affirmed.

Johnson and Smith, JJ., concur.


author: Blackburn, Judge. McMurray, Presiding Judge,

text:
    A95A2598.
    ECKERD CORPORATION v. FAYETTE COUNTY BOARD OF TAX ASSESSORS.
    (469 SE2d 285)
   Blackburn, Judge.

The Eckerd Corporation appeals the order of the trial court finding it in contempt of court, and, as punishment, directing it to pay the sum of $750 to the Fayette County Board of Tax Assessors (Board) for failure to produce certain tax records in accordance with a Board subpoena issued pursuant to OCGA § 48-5-300 (a).

The record reflects that the Board subpoenaed Eckerd’s 1992 through 1994 personal property tax returns. Eckerd refused to release such records in the absence of the Board’s assurances that they would not be made available to Mendola & Associates, a company under contract to the Board to audit such taxpayers as designated by the Board and also under contract to provide similar services to other county tax assessors. Upon Eckerd’s refusal to comply with the subpoena unconditionally, the Board voted unanimously to require Eckerd to appear before the trial court to show cause why it should not be punished for contempt.

1. Eckerd contends that the Board’s subpoena is improper as an audit for the purpose of assessing additional personal property taxes against it. We disagree.

It is well-settled that tax assessors may assess unreturned tangible property for ad valorem tax purposes during the applicable seven-year period of limitation. Ga. R. &c. Co. v. Wright, 124 Ga. 596, 599 (53 SE 251) (1905); Suttles v. Dickey, 192 Ga. 382, 383 (15 SE2d 445) (1941); Garr v. E. W. Banks Co., 206 Ga. 831, 832 (59 SE2d 400) (1950); and see generally Op. Atty. Gen. U87-13. In this regard, OCGA § 48-5-299 (a) pertinently provides that it is “the duty of the county board of tax assessors to . . . ascertain [ ] what real and personal property is subject to taxation in the county and to require the proper return of the property for taxation.” It further provides that “[i]n all cases where the full amount of taxes due the state or county has not been paid, the board shall assess against the owner, if known, and against the property, if the owner is not known, the full amount of taxes which has accrued and which may not have been paid at any time within the statute of limitations.” OCGA § 48-5-305 (a), in turn, authorizes county boards of tax assessors to determine the manner of ascertaining the assessment of any real or personal property not appearing in the digest for any time within the period of limitation. As the proposed audit is directed not at reassessing property already valued, and upon which taxes have already been paid, but rather is directed at the discovery of property, if any, which has not been returned and upon which taxes have not been paid, it is a proper means of determining unreturned property tax liability at any time within the applicable seven-year period of limitation. Accordingly, we deem this enumeration of error to be without merit.

2. Eckerd further enumerates that the trial court erred by finding that the Board properly contracted Mendola to provide it audit services. In this regard, Eckerd argues that having Mendola audit its personal property was an impermissible delegation of the Board’s assessment duty found in OCGA § 48-5-298 (a) and improper as violative of its right to confidentiality under OCGA § 48-5-314 in that Mendola was under contract to provide similar services to other county boards of tax assessors.

The Supreme Court of Georgia has held that OCGA § 48-5-298 (a) (3) “expressly allows the Board ... to contract with entities, such as [Mendola], to ‘(s)earch out and appraise unreturned properties in the county.’ ” Sears, Roebuck & Co. v. Parsons, 260 Ga. 824, 825 (401 SE2d 4) (1991). The Board properly contracted for Mendola’s services in order to aid it in discovering unreturned and untaxed property, not to aid it in further taxing property already assessed. Division 1, supra. No delegation of the Board’s duty to require the proper return of personal property for taxation is indicated in the record. There being no delegation of the Board’s authority and audit services having been properly contracted, the claim that the Board impermissibly delegated its authority cannot stand.

Eckerd’s confidentiality argument is flawed as well. OCGA § 48-5-314 (a) (1) allows personnel authorized by appropriate tax administrators to access materials otherwise protected as confidential thereunder. It is settled that boards of tax assessors have authority to contract for audit services. OCGA § 48-5-298 (a) (3); Sears, Roebuck, supra. It necessarily follows that to enter into such a contract “authorizes” the contractor access to confidential materials essential to the performance of the contract. Significant as well, the Board’s authority to contract for services in OCGA § 48-5-298 (a) is not restricted to persons or entities not otherwise under contract to provide such services. In this regard, OCGA § 48-5-298 (b) permits county boards of tax assessors to enter into contracts “with any municipality or political subdivision of the state to provide any information for which the board could contract pursuant to subsection (a)” thereof. Further, while OCGA § 48-5-314 (a) (1) allows authorized personnel access to confidential materials, subsection (b) makes the disclosure of confidential materials to unauthorized persons subject to a civil penalty not to exceed $1,000. Thus, in the absence of Mendola’s disclosure of confidential materials to unauthorized persons, no breach of the duty of confidentiality arises. Such a claim is not before us. Accordingly, we deem this enumeration of error to be without merit.

3. Eckerd last contends that the trial court erred by awarding the Board attorney fees in that such fees are impermissible as punishment for contempt.

It is uncontroverted in the record that the trial court found Eckerd in contempt of court for failure to comply with the Board’s subpoena and punished the contempt by its order directing Eckerd to pay the Board its attorney fees of $750. Attorney fees are not authorized by law for contempt. OCGA § 15-6-8; Ragsdale v. Bryan, 235 Ga. 58, 59 (218 SE2d 809) (1975); Carter v. Carter, 241 Ga. 335, 336 (245 SE2d 292) (1978). We conclude that the trial court did not err in holding Eckerd in contempt, but did err in imposing attorney fees as punishment therefor. Accordingly, we affirm the judgment with direction that the amount awarded as attorney fees be stricken. Ragsdale, supra.

Judgment affirmed with direction.

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

McMurray, Presiding Judge,

dissenting.

While I agree with much of the majority opinion, I cannot agree with the majority’s construction of the confidentiality provisions contained in OCGA § 48-5-314 (a) (1). This statute does not, as stated in the majority opinion, allow “personnel authorized by appropriate tax administrators to access materials otherwise protected as confidential thereunder.” In reality, the statute provides that confidential materials “shall not be subject to inspection by any person other than authorized personnel of appropriate tax administrators.” Id. In short, the statute permits access to confidential materials by a limited group of public officials and employees. In my view, the majority opinion is incorrect in holding that the confidential materials may be distributed to an independent contractor who is generally beyond the control and supervision of the “appropriate tax administrators.”

The issue in the present case is further clouded by the references in the majority opinion to the sharing of information between county boards of tax assessors and various political subdivisions of the state under OCGA § 48-5-298 (b). The information which may be exchanged under that provision is limited to that which a board could contract to obtain under OCGA § 48-5-298 (a) and is not the same as the confidential materials identified under OCGA § 48-5-314 (a) (1).

Further ambiguity enters this case through the use of the term “audit.” This is a familiar and broad term, but too broad for precise communication relating to the circumstances in the case sub judice. Eckerd Corporation has filed its personal property tax return and paid its taxes for the years in question. Despite some slip of the tongue or faulty logic on the part of the Board’s counsel which suggested otherwise during the argument of the contempt motion, the superior court has concluded that this case deals exclusively with a search for unreturned property as opposed to an attempt to reassess those properties upon which taxes have already been paid. Under Sears, Roebuck & Co. v. Parsons, 260 Ga. 824 (401 SE2d 4), the Fayette County Board of Tax Assessors is clearly authorized, subject to the approval of the county governing authority, to contract with a third party to conduct such a search. But there is undoubtedly no express authority for providing confidential materials to a third party independent contractor. Nor do I agree with the majority opinion that such an authority to distribute confidential materials “necessarily follows” the authority to contract for the search for unreported property.

The legislature is the proper body to weigh the utility of conveying confidential materials to independent third parties against the harm which may result to a business from overly broad distribution of its confidential financial data and proprietary business information. Since the legislature has carefully restricted access to confidential materials submitted to the county board of tax assessors, I am reluctant to unduly expand the distribution of this information. In the absence of any evidence on the issue, the majority opinion assumes access to the confidential materials is essential to the performance of an independent third party’s contract to search for unreported property. This does not appear to be self-evident to me. Such speculation only emphasizes the hazards of deviating from a strict construction of this statute. I would hold that the furnishing of confidential materials obtained from Eckerd Corporation to Mendola & Associates would be a violation of OCGA § 48-5-314 (a) (1). (Any further distribution of the confidential materials by Mendola & Associates may also be prohibited by the statutory scheme.) Since the purpose of the subpoena at issue is to obtain confidential materials to be distributed in this inappropriate manner, the subpoena should have been quashed.

Decided February 8, 1996

Reconsideration denied March 6, 1996

Alston & Bird, G. Conley Ingram, Timothy J. Peaden, for appellant.

McNally, Fox & Cameron, Dennis A. Davenport, for appellee.

Consequently, I would hold the trial court erred and the case sub judice should be reversed.


author: Andrews, Judge.

text:
    A95A2699, A95A2700.
    DEPARTMENT OF TRANSPORTATION v. DURPO; and vice versa.
    (469 SE2d 404)
   Andrews, Judge.

Case No. A95A2699

Clark L. Durpo, Sr. sued the Department of Transportation (“DOT”) for inverse condemnation, based upon an alleged taking of a “right of access” from his property to State Route 138. The parties stipulated to a bench trial and submitted summaries of projected testimony of witnesses, exhibits and drawings to the court. The trial court entered a judgment ruling that the DOT’s closure of Iris Drive at its intersection with State Route 138 was a compensable taking as a matter of law. The trial court found that because Durpo’s property no longer had a “right” of access to State Route 138 but instead had a “privilege” of access based on the whim of an adjoining property owner, “the way in which the Department of Transportation ‘closed’ this road subjects it to liability under the Georgia Constitution, Art. 1, § 3, ¶ 1.” Following negotiation and discussion, the parties stipulated to the amount of damages as $350,000 which the court awarded to Durpo. For the reasons that follow, we reverse.

Durpo is the owner of a small shopping center in Rockdale County known as Stoneway Plaza, which abuts Iris Drive and is readily visible from Interstate 20. Prior to the DOT’s closure of Iris Drive, Durpo’s property had ready access to both State Route 138 and Interstate 20 by means of Iris Drive, which was the Interstate 20 access road at its intersection with State Road 138, immediately adjacent to the intersection of Interstate 20 and State Route 138. For the purposes of traffic control and the reduction of accidents, the DOT closed Iris Drive at its intersection with State Route 138. The barricade closing the roadway is two-tenths of a mile from Durpo’s property, and because of the road closure, Durpo can reach State Route 138 in a less direct manner, by traveling approximately one mile. Due to the closure of the end of Iris Drive on the east side of State Route 138, there is a corresponding reduction of access to Iris Drive from the east since no through traffic is possible from that direction except by using a neighboring Waffle House’s parking lot as a cut-through, which the trial court coined, “Access allowed if an egg is eaten en route.” At the non-barricaded end of Iris Drive, the DOT installed “No Thru Traffic” signs. The DOT constructed a new road which connected Iris Drive to Old Salem Road and allowed continued access to State Route 138. The net effect of the new road was to route traffic around Durpo’s property onto a different road.

Durpo claimed his shopping center sustained business losses directly attributable to the DOT’s barricade. Durpo contended that an immediate and uninterrupted access to the major system of roads from Iris Drive to State Route 138 and Interstate 20 was critical to the value and economic success of his shopping center. The trial court agreed and found a compensable taking.

It is undisputed that Durpo’s property still abuts Iris Drive and that Durpo’s immediate access to Iris Drive from his property remains unchanged.

1. The DOT contends that the trial court erred as a matter of law by ruling that the DOT’s closure of Iris Drive at its intersection with State Route 138 constituted a compensable taking because Durpo did not lose access to any abutting roadway and still has access to State Route 138 by traveling approximately one mile.

Durpo’s situation is factually similar to Tift County v. Smith, 219 Ga. 68 (131 SE2d 527) (1963). In Smith, when the DOT built a new highway, the old road permanently dead ended 50 feet from the corner of the Smiths’ property, necessitating increased travel of about 2.4 miles and the occasional use of hilly dirt roads. Smith, 219 Ga. at 69. Despite the inconvenience and resulting diminution of property value, the Supreme Court determined that the Smiths’ damage was not compensable because there was no violation of any special right held by the Smiths as owners of the impacted property inasmuch as their inconvenience was shared by the general public. Smith, 219 Ga. at 72. Thus, the DOT’s closure of the road abutting the Smiths’ property was not a compensable taking even though the closure created inconvenience. The Supreme Court held, “What we deem controlling under the facts here is that access to the Old John Williams Road upon which the plaintiffs’ property abuts was not interfered with. The fact that farther down this road a dead-end obstruction was created so as to constitute a cul-de-sac, causing inconvenience, does not, in our view, constitute the taking or damaging of private property for a public purpose so as to require compensation.” Smith, 219 Ga. at 73-74.

We find this case to be controlled by Smith. Here, the DOT created a dead end obstruction at one end of Iris Drive but did not alter Durpo’s access to Iris Drive from his property. The gravamen of Durpo’s complaint was that his access to nearby State Route 138 and Interstate 20 was severely impacted, an unfortunate consequence but not a compensable taking under our law.

A similar result was reached in Dept. of Transp. v. Taylor, 264 Ga. 18 (440 SE2d 652) (1994). The Supreme Court held that in order to ascertain whether the inconvenience of access to public roads is compensable in takings cases, “it must first be determined whether the inconvenience is that which is shared by the public in general, which is not compensable, or that which is special to the landowner, which is compensable. MARTA v. Fountain, 256 Ga. 732, 733 (352 SE2d 781) (1987).” Taylor, 264 Ga. at 19-20 (3) (a). If the property owner has the same access to the public road or highway which abuts his property, as he did before the road closing, then his damage is not special. Id. at 20. In the case at bar, Durpo has the same access from his property to Iris Drive as before the road closing.

Circuity of travel and the inconvenience caused by traffic flow and traffic patterns are not compensable as takings. See Fountain, supra (holding no compensable taking where property was formerly on the corner of two main arteries and ended up as the sole property fronting a dead end spur of rerouted street); and Floyd County v. Griffin, 109 Ga. App. 802 (137 SE2d 483) (1964) (holding no compensable taking where street converted to a dead end and property owner suffers resultant inconvenience).

Durpo’s reliance on Circle K Gen. v. Dept. of Transp., 196 Ga. App. 616 (396 SE2d 522) (1990), and Dept. of Transp. v. Whitehead, 253 Ga. 150 (317 SE2d 542) (1984) is misplaced because those cases involved the taking of an easement of access onto an abutting road. Here, Durpo has not been deprived of an easement of access onto an abutting road.

Because we conclude that Durpo’s access to the public road abutting his property remains unchanged, we find that the trial court erred in finding a compensable taking. See Taylor, 264 Ga. at 20 (3) (c); Smith, 219 Ga. at 73.

2. The DOT contends that the trial court’s ruling is an infringement on the separation of powers clause of the Georgia Constitution, Art. I, Sec. II, Par. Ill and constitutes judicial interference with the DOT’s powers and duties under OCGA § 32-2-2 (a) (1). Because of our decision in Division 1, we need not address the merits of this enumeration.

Decided February 20, 1996

Reconsideration denied March 6, 1996

Michael J. Bowers, Attorney General, George P. Shingler, Deputy Assistant Attorney General, Jeffrey J. Davis, Assistant Attorney General, for appellant.

Strauss & Walker, John T. Strauss, for appellee.

Case No. A95A2700

3. In his cross-appeal, Durpo contends that the trial court erred in denying post-judgment interest on the judgment award. In light of our decision in Division 1, we need not address this enumeration.

Judgment reversed in Case No. A95A2699. Judgment affirmed in Case No. A95A2700.

McMurray, P. J., and Blackburn, J., concur.


text:
    A95A2830.
    SOUTHERN GUARANTY INSURANCE COMPANY OF GEORGIA v. PHILLIPS et al.
    (469 SE2d 227)
   Birdsong, Presiding Judge.

After the grant of authority for an interlocutory appeal, Southern Guaranty Insurance Company appeals the denial of its motion for summary judgment in an action seeking a declaration of its obligations under a homeowner’s insurance policy issued to Bobby Gene Phillips (“Phillips”) and Carolyn Virginia Phillips as the named insureds. The case arises from an incident in which Carolyn Virginia Phillips was shot and killed by Phillips, her former husband.

Although he has stated that he only intended to kill himself in her presence, Phillips, with a .38 calibre pistol, waited for Carolyn Virginia Phillips at her place of employment. After she arrived, he confronted her from a position about 20 feet away. When she turned to walk to her office, Phillips fired a shot which struck her in the back, severed her spine, and knocked her prone on the ground. Phillips then walked the 20 feet over to where she lay, stood over her, and fired four shots into her body while she lay on the ground. Then, Phillips shot himself once in the chest, reloaded his pistol and then shot himself in the chest two more times. Although he said he was trying to commit suicide, he was unsuccessful.

Later Phillips was indicted for murder, but as part of a negotiated plea he was allowed to plead guilty, but mentally ill, to the lesser offense of voluntary manslaughter. The transcript of the hearing on Phillips’ guilty plea shows that the district attorney represented to the court that the family of Virginia Phillips told him “in no uncertain terms” that the family wanted to dispose of the murder case with a plea bargain.

The action below was filed against Bobby Gene Phillips; Fred Davis Thomas, administrator of the estate of Carolyn Virginia Phillips; and Opal S. Johnson, Jackie Simmons, Faye Loveless, Sidney Simmons, Helen E. Thomas, and Billy Simmons, the mother, brothers and sisters of Carolyn Virginia Phillips. Carolyn Virginia Phillips’ administrator, mother, and brothers and sisters are plaintiffs in a civil action pending against Phillips that alleges that he negligently and wilfully and intentionally shot and killed Carolyn Virginia Phillips by shooting her five times with a pistol.

After Southern Guaranty’s motion for summary judgment was denied below, this Court granted a petition for interlocutory appeal. On appeal Southern Guaranty contends the trial court erred by denying its motion for summary judgment because the incident was not covered by its policy. Held:

1. “[A] court’s first obligation in cases such as this is to construe the insurance policy to determine the scope of the policy and any exclusion at issue. If any question of fact is then relevant, the jury must decide those issues. Further, before addressing whether the terms of some exclusion might be applicable, the initial consideration is whether the policy covered the incident in which [Carolyn Virginia Phillips was killed]. To establish a prima facie case on a claim under a policy of insurance the insured must show the occurrence was within the risk insured.” (Citations and punctuation omitted.) Allstate Ins. Co. v. Grayes, 216 Ga. App. 419, 420 (454 SE2d 616).

In this case, the homeowner’s policy in question provided liability coverage for “damages because of bodily injury or property damage caused by an occurrence to which this coverage applies.” An “occurrence” is defined in the policy as an accident. “Although the policy does not define the term ‘accident,’ in Georgia an accident is defined as an event which takes place without one’s foresight or expectation or design. An accident refers to an unexpected happening rather than one occurring through intention or design. Acts could not be unexpected unless they were accidental.” (Citations and punctuation omitted.) Id. at 421.

Thus, our first consideration must be whether the death of Carolyn Virginia Phillips was the result of an accident. If her death was not accidental, it would not be covered by the policy regardless of any relevant exclusions.

Under the undisputed testimony in this case, Carolyn Virginia Phillips’ death was clearly not accidental. Phillips testified at his deposition that the gun did not go off accidentally, and that he shot her; he fired the gun and intended to shoot the gun and strike her. Under these circumstances, Carolyn Virginia Phillips’ death did not result from an accident. Accordingly, her death was not covered by the policy, and the trial court erred by denying Southern Guaranty’s motion for summary judgment.

Decided January 25, 1996

Reconsideration denied March 6, 1996

Johnson, Beckham & Dangle, Robert F. Dangle, for appellant.

Word & Flinn, Gerald P. Word, Lane, O’Brien, Caswell & Taylor, Eugene O’Brien, Head, Head & Head, Henry C. Head, for appellees.

2. Additionally, although we do not find it necessary to discuss the applicability of the exclusions at issue, the trial court also erred by denying summary judgment on the intentional acts exclusion. Merritt v. State Farm Fire &c. Co., 218 Ga. App. 652 (463 SE2d 42); State Farm Fire &c. Co. v. Moss, 212 Ga. App. 326 (441 SE2d 809).

Therefore, the judgment of the trial court must be reversed and the case remanded to the trial court with direction to enter summary judgment for Southern Guaranty.

Judgment reversed with direction.

Johnson and Smith, JJ., concur.


author: Ruffin, Judge.

text:
    A95A1920.
    QUIKTRIP CORPORATION v. CHILDS.
    (469 SE2d 763)
   Ruffin, Judge.

Butch Childs sued Quiktrip Corporation (“Quiktrip”) for injuries he sustained when he slipped and fell on an ice patch in Quiktrip’s parking lot. The jury returned a verdict in favor of Childs, and Quiktrip filed motions for judgment notwithstanding the verdict (“j.n.o.v.”) and for new trial. Quiktrip appeals from the trial court’s order denying the motions. For reasons which follow, we affirm.

Viewed in a light to support the verdict, the evidence showed that at approximately 7:20 a.m. on the day of his accident, Childs and his brother drove to the Quiktrip, where Childs had been many times, to get gas. He described the morning as a “beautiful December morning” with clear skies, no clouds and no rain. Childs drove his car up to the gas pumps and filled it with gas. As he walked toward the store to pay, Childs slipped and fell on a patch of ice. Childs testified that he was looking where he was walking. He described the parking lot concrete as “dingy” and stated that the ice patch “just looked like another spot just like the grease spots that’s all over it.” Childs further stated that the patch “blended together” with these other spots and that he did not realize he slipped on ice until after he fell.

1. In its first enumeration of error, Quiktrip asserts that the trial court erred in failing to give its requested charge regarding open and obvious conditions. We disagree.

Although the trial court refused to give Quiktrip’s requested charge, the record shows that the court charged the jury that the plaintiff was required to use his eyesight to discover dangerous conditions in his path and that if the plaintiff’s failure to exercise ordinary care caused his injuries, then he could not recover from the defendant. The trial court also charged the jury on comparative and contributory negligence and superior knowledge.

We note initially that “ ‘simply because a request to charge is apt, correct and pertinent, it is not necessarily error to fail to charge it. The test is whether the court substantially covered the principles embodied therein or whether it was sufficiently or substantially covered by the general charge.’ . . . [Cit.] In other words, we look at the charge as a whole. [Cit.]” Monroe v. Southern R. Co., 210 Ga. App. 597, 598 (2) (436 SE2d 568) (1993). We find that the charges given by the trial court in this case were correct statements of the law and gave the jury sufficient guidance to decide who was responsible for Child’s injuries. See Unique Designs v. Pittard Machinery Co., 200 Ga. App. 647, 652 (2) (b) (409 SE2d 241) (1991).

Moreover, we have previously held that where the jury was charged on contributory and comparative negligence, a request to charge on open and obvious conditions was incomplete because it did not “adequately [distinguish] the ‘open and obvious’ rule from the applicable affirmative defenses. . . .” Continental Research Corp. v. Reeves, 204 Ga. App. 120, 127 (3) (419 SE2d 48) (1992). Furthermore, as in Reeves, the charge Quiktrip requested “failed to inform the jury of their duty to determine whether an open and obvious peril existed under the attendant facts.” Id. We found that without such additional instructions, the requested charge presented “a fair risk of both confusing and misleading the jury.” Id. The same dangers are presented by the requested charge in this case. For all the foregoing reasons, we find this enumeration to be without merit. Id.

2. Quiktrip asserts that the trial court erred in denying its motion for a directed verdict and for j.n.o.v. because the evidence demanded a finding that the alleged defect was an open and obvious condition of which Childs had equal knowledge.

“A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions, demands a particular verdict. [Cit.] The evidence is construed most favorably for the nonmovant. [Cit.] In order to recover for a slip and fall, resulting from a foreign substance, the plaintiff must show that the proprietor had actual or constructive knowledge of the foreign substance and that the plaintiff was without such knowledge of it. [Cit.] ‘[He] must exercise ordinary care for [his] own safety to avoid the effect of the proprietor’s negligence after it becomes apparent to [him] or in the exercise of ordinary care [he] should have learned of it.’ [Cit.]” Food Lion v. Johnson, 214 Ga. App. 390 (448 SE2d 59) (1994).

Citing McIntyre v. Corp. Prop. Investors, 160 Ga. App. 868 (288 SE2d 584) (1982), Quiktrip argues that because Childs testified that he noticed a dark spot on the pavement, the evidence showed he had at least equal knowledge of the dangerous condition. However, in McIntyre, the plaintiff “made a conscious decision to step upon a surface which she visually perceived to be different from the surface of the immediate surrounding premises. . . . The plaintiff in McIntyre deliberately stepped into what appeared to her to be a ‘dark patch’ on the surface of a parking lot, the surface of which parking lot was otherwise dry and free of ice or any other dark patches.” (Emphasis supplied.) Pennington v. Cecil N. Brown Co., 187 Ga. App. 621, 623-624 (3) (371 SE2d 106) (1988).

“When the evidence in this case is construed most strongly in [Childs’] favor, [he], entirely unlike the [plaintiff] in . . . McIntyre, did not consciously choose to step onto a ‘wet’ or ‘dark’ surface which appeared to [him] to be visually different from the immediately surrounding surface.” (Emphasis in original.) Id. at 624. Rather, the evidence showed that there were numerous dark patches on the dingy pavement, and that this particular dark patch, although composed of ice, blended in with the other dark patches. This evidence does not demand “a finding that. . . [Childs] had at least equal knowledge of the alleged defect which caused [him] to fall. [Cits.]” Id. Accordingly, it was not error to deny the motion.

3. Quiktrip asserts that the trial court erred in allowing Childs and his brother to testify as to hearsay statements allegedly made by a Quiktrip employee after he learned of the accident.

The record shows that immediately after Childs fell, his brother assisted him into the convenience store. Once inside the store, the pair informed the three Quiktrip employees on duty that Childs had fallen, broken his wrist and that he was in pain. According to the testimony of Childs and his brother, one of the employees then stated that several other people had complained about slipping on ice but that they were too busy to take care of the problem. Over Quiktrip’s hearsay objection, the trial court admitted this testimony as an admission by an agent.

“ ‘(OCGA § 24-3-33) states: “The admissions by an agent or attorney in fact, during the existence, and in pursuance of his agency, shall be admissible against the principal.” (OCGA § 10-6-64) states: “The agent shall be a competent witness either for or against his principal. His interest shall go to his credit. The declarations of the agent as to the business transacted by him shall not be admissible against his principal, unless they were a part of the negotiation, and constituting the res gestae, or else the agent is dead.” The Code sections must be construed together, and the second effectively limits the scope of the first. (Cit.)’ [Cit.]” Brooks v. Kroger Co., 194 Ga. App. 215, 216 (2) (390 SE2d 280) (1990). In order to be part of the res gestae, the statement “ ‘must be contemporaneous with the main fact, but need not be precisely concurrent in point of time(;) it is sufficient if such declarations spring out of the transaction, if they elucidate it, if voluntary and if made at such time as reasonably to exclude the idea of design.’ [Cits.]” Brown v. City of Fitzgerald, 177 Ga. App. 859, 862 (3) (341 SE2d 476) (1986).

In this case, the statement objected to was part of the res gestae. Although the statement was not made contemporaneously with Childs’ fall, it was made immediately thereafter, and more importantly, directly after Childs informed the employee of his injuries. The employee’s declaration, in essence, sprang from Childs’ revelation about his accident and explained why the employees had not remedied the ice patch. Under the circumstances, it is clear that the statement was voluntarily made and that there was no time for afterthought or design by the employee prior to making it. Accordingly, the trial court did not err in admitting the statement. See id. See also Aetna Life Ins. Co. v. Jones, 80 Ga. App. 472, 479-480 (2) (56 SE2d 305) (1949).

Nor do we agree with Quiktrip that the testimony constituted double hearsay in that it described what an unidentified individual told the store employee. “As a fundamental rule, the definition of hearsay does not include out-of-court statements which are not offered as proof of the facts asserted in such statement, but are offered merely as proof that such a statement was made.” Green, Ga. Law of Evidence (4th ed.) Hearsay, § 218. Here, the issue was not whether the unidentified individuals were telling the truth when they informed the Quiktrip employees about the ice, but rather, whether Quiktrip had notice of the hazardous condition. Thus, this testimony would be “direct evidence of the fact in issue: [Quiktrip’s] notice of the [hazard].” Huddleston Concrete Co. v. Safeco Ins. Co. &c., 186 Ga. App. 531, 538 (5) (368 SE2d 117) (1988).

4. Quiktrip asserts that the trial court erred in denying its motion for a directed verdict and j.n.o.v. because Childs failed to show it had superior knowledge of the dangerous condition. Quiktrip argues that although its employees received prior complaints about the ice, the evidence showed those complaints were made only thirty seconds to one minute before Childs fell.

At trial, one of the Quiktrip employees who was working at the time of the accident testified that at about 7:00 that morning, a customer came in and told him that “he was trying to survive the parking lot, it was slippery.” The employee stated that he stopped what he was doing, went to put something on the slippery spot and that as he was passing by the window, he saw Childs on the ground. He stated that only 30 seconds elapsed from the time he learned of the ice to the time he saw Childs on the ground.

We set forth the law applicable to the grant of a directed verdict in Division 2. Under that standard, we find that the employee’s testimony that he learned of the ice at 7:00 a.m., only 30 seconds before Childs’ fall, conflicts with Childs’ own testimony showing that he fell a few minutes after 7:20 a.m. Whether 30 seconds or 20 minutes elapsed between Quiktrip’s notice of the ice and Childs’ fall is a conflict that must be construed in Childs’ favor. See Food Lion, supra. Given the conflicting evidence concerning Quiktrip’s prior notice of the condition, the trial court did not err in denying the motion for a directed verdict.

5. Quiktrip also asserts that the trial court erred in denying its motion for a directed verdict and j.n.o.v. regarding Childs’ claim for lost wages because there was insufficient evidence to prove the amount of those damages.

Lost wages and earnings are recoverable where the evidence shows the amount of the loss with reasonable certainty and the evidence permits the jury to determine the amount of the loss without speculation or guesswork. State Farm &c. Ins. Co. v. Ainsworth, 198 Ga. App. 740, 744 (1) (c) (402 SE2d 759) (1991).

In this case, Childs presented evidence showing he worked in the construction industry building sheetrock walls and ceilings. Although Childs testified that little work had been available for the two to three years preceding his accident and that he faced several layoffs during that time, he presented testimony and tax returns showing his income for the years 1990, 1991 and 1992, the year of his accident. The evidence showed that thereafter Childs was unable to work in the construction industry due to his injuries and that he has a small income from a business at a flea market. This evidence was sufficient to enable the jury to determine Childs’ lost wages with reasonable certainty. See Mote v. Tomlin, 136 Ga. App. 616, 618 (2) (222 SE2d 57) (1975).

6. In its last enumeration of error, Quiktrip asserts that the trial court erred in denying its motion for directed verdict and j.n.o.v. regarding a portion of the jury’s verdict for $4,066 in damages. Quiktrip contends that this award was based on Childs’ medical bills for which he did not seek recovery.

The record shows that upon tendering the medical bills into evidence, Childs’ attorney stated as follows: “We are introducing them only to show the extent of the injury. We’re not seeking recovery of the medical bills themselves.” The total amount of the bills admitted was $4,066.08. Although the jury was not charged concerning an award of medical damages, it awarded “$4,066 for damages” in addition to its award for lost wages and pain and suffering.

Decided March 6, 1996.

Sullivan, Hall, Booth & Smith, Roger S. Sumrall, Heather R. Clark, for appellant.

Freeman & Hawkins, Alan F. Herman, B. Rose Miller, for appellee.

On appeal, a jury’s award cannot be successfully attacked “unless it is so flagrantly excessive or inadequate, in light of the evidence, as to create a clear implication of bias, prejudice, or gross mistake on the part of the jurors. . . . Moreover, the trial court’s approval of the verdict creates a presumption of correctness that will not be disturbed absent compelling evidence.” (Citations and punctuation omitted.) Brown v. Southern Aggregates Co., 207 Ga. App. 886, 888 (1) (429 SE2d 294) (1993).

We believe that the evidence in this case demands that the court’s judgment as to the $4,066 in damages be reversed. It is obvious from the record that the jury based its award on the medical bills submitted by Childs, for which, by his own admission, he was not seeking recovery. In light of the court’s charge to the jury and all the evidence of damages presented, there is no plausible explanation for the jury’s award other than a mistaken belief that Childs was entitled to compensation for those medical bills. Because he was not seeking such compensation, we are compelled to find that the trial court erred in not granting Quiktrip’s motion for j.n.o.v. as to the $4,066 in damages. The judgment shall be reduced accordingly.

Judgment affirmed in part and reversed in part with direction.

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


text:
    A95A2289.
    COLEY v. THE STATE.
    (469 SE2d 513)
   Ruffin, Judge.

Gladys Coley appeals her conviction of voluntary manslaughter, enumerating as error the general grounds and the trial court’s charge on justification. For reasons which follow, we reverse.

Responding to a call reporting an assault, Officer Allen Brantley discovered Coley at her aunt’s home, clad in a nightgown, her arms bathed in blood, and bleeding from her hand. He learned that Coley arrived at the home naked and had been beating on the door for help. Brantley described Coley as “uncontrollable” and uncooperative with the emergency medical technicians. He also testified that he detected the smell of alcohol about her body. Prior to Brantley’s arrival, Coley told other officers at the scene that her husband had beaten her. Brantley did not question her at the scene but allowed the emergency medical technicians to transport her to the hospital.

Approximately 45 minutes later at the hospital, Coley appeared coherent. Brantley administered Coley’s Miranda warnings, and she discussed with him the events which led to her injury.

According to Brantley, Coley said that while she and her husband were out drinking with friends earlier that night, Mr. Coley argued with her about an old boyfriend. The argument continued when they returned home, where Mr. Coley repeatedly hit her in the head with the butt end of a hammer. He also pushed her into a mirror with such force that it fell to the floor and shattered. Mr. Coley allegedly picked up a piece of the broken mirror and “swung” it at Coley. The argument then ceased temporarily, and Coley attempted to clear away the broken mirror. After a short time the arguing resumed, and Coley fled the house, naked, with Mr. Coley in pursuit. Coley alleged that a short distance from the house, Mr. Coley began to hit her with a stick. Brantley testified that Coley claimed she then attempted to stab Mr. Coley in self-defense with a piece of the mirror she had taken from the house. She was uncertain as to whether she actually wounded Mr. Coley and ran across a field to her aunt’s home.

Mr. Coley’s body was discovered in front of the Coleys’ front porch. He died as the result of multiple sharp force injuries to his left arm and right wrist. The police recovered a piece of broken mirror from weeds at the home of Coley’s aunt, and a stick was found in the street where Coley admitted attempting to stab Mr. Coley.

Coley essentially testified to the same general sequence of events related by Officer Brantley. However, she also testified that she did not know why Mr. Coley started beating her; that she did not think he was trying to kill her; that she ran out of the house with a broken piece of mirror to protect herself and scare her husband; and that his hands were empty when he left the house but that he picked up the stick when they ran out into the street. A paramedic who examined Coley’s head testified that she observed no sign of injury. With regard to the hammer attack, Coley also testified that Mr. Coley stopped hitting her when she told him she needed to use the rest room.

1. Coley contends the evidence did not support the verdict but instead established that she was acting solely to defend herself from her husband’s continuous attacks.

“The distinguishing characteristic between voluntary manslaughter and justifiable homicide is that the accused was so influenced and excited that [she] reacted passionately rather than simply to defend [herself]. [Cits.] Circumstances necessary to show voluntary manslaughter, as opposed to justifiable homicide, relate to a situation which arouses sudden passion in the person killing so that, rather than defending [herself], [she] wilfully kills the attacker, albeit without malice aforethought, when it was not necessary for [her] to do so in order to protect [herself]. [Cits.]” Syms v. State, 175 Ga. App. 179, 180 (1) (332 SE2d 689) (1985).

The question of Coley’s guilt rests largely on her credibility, which was for the jury to decide. Nelson v. State, 213 Ga. App. 641 (1) (445 SE2d 543) (1994). Coley’s account of Mr. Coley’s attack, particularly her initial claim that Mr. Coley hit her with a hammer, was drawn into question by the paramedic who examined her head and observed no sign of injury. Therefore, the jury was authorized to reject her entire testimony. See Cottrell v. State, 210 Ga. App. 55, 57 (435 SE2d 272) (1993). Moreover, reasonable minds might differ as to whether Coley was justified in abandoning her attempt to escape Mr. Coley and the necessity of confronting him with the broken piece of mirror, particularly in light of her testimony that she did not believe Mr. Coley was trying to kill her and that he ceased beating her with the hammer when she merely informed him that she needed to use the rest room. And, even if Coley were fearful, we have held that “[t]he fear of some danger can be sufficient provocation to excite the passion necessary for voluntary manslaughter. [Cit.]” Syms, supra. Accordingly, we conclude that the evidence did not demand a finding that Coley acted solely in self-defense.

2. Coley also enumerates as error the trial court’s failure to instruct the jury on the State’s burden to prove the absence of the elements of her justification defense. The State contends the court’s omission does not require reversal because the charge on justification given by the court was read verbatim from Coley’s request. However, when the affirmative defense of justification is raised by a defendant, the trial court’s failure to so instruct the jury, even without a written request, constitutes “substantial error in a jury charge which is harmful as a matter of law” (Emphasis supplied.) Nelson, supra at 643 (3); Printup v. State, 217 Ga. App. 495 (458 SE2d 662) (1995). Furthermore, “when the judge undertakes to charge the law on any subject, he must charge upon all that is material and applicable in the case.” Singleton v. State, 146 Ga. App. 72, 74 (2) (245 SE2d 473) (1978).

Therefore, notwithstanding Coley’s written requests on the use of force and reasonable fear, the trial court had a duty to charge the jury on all of the elements of the affirmative defense of justification, including the State’s burden of proof. The requirement that the State prove beyond a reasonable doubt that the defendant did not act in self-defense is set forth in the charge on justification contained in the Suggested Pattern Jury Instructions (July 1991), Vol. II, Criminal Cases. Its omission from the instructions in this case was harmful as a matter of law, requiring the reversal of Coley’s conviction and a new trial. Austin v. State, 218 Ga. App. 90 (2) (460 SE2d 310) (1995).

Decided March 6, 1996.

Morris S. Robertson, for appellant.

Ralph M. Walke, District Attorney, L. Craig Fraser, Jeff J. Conner, Assistant District Attorneys, for appellee.

Judgment reversed.

Pope, P. J., concurs. Beasley, C. J., concurs in the judgment only.


author: Pope, Presiding Judge.

text:
    A95A2376.
    MOORE et al. v. DEPARTMENT OF HUMAN RESOURCES et al. POPE v. DEPARTMENT OF HUMAN RESOURCES et al.
    A95A2504.
    (469 SE2d 511)
   Pope, Presiding Judge.

This is another in a series of appeals arising from the switching of two infants at the Griffin-Spalding Hospital in October 1983. The Popes’ natural child was adopted by the Moores pursuant to a placement agreement with the Department of Human Resources (DHR), and the child who was supposed to be put up for adoption went home with the Popes. The facts are set forth in detail in Pope v. Dept. of Human Resources, 209 Ga. App. 835 (434 SE2d 731) (1993), and will be reiterated here only to the extent they are relevant to the issues discussed.

Case No. A95A2376

In this case, the Moores contend that the trial court erred in granting summary judgment for the DHR (and individual DHR employees) on their claims based on breach of contract and negligence.

1. The Moores argue that the DHR promised to provide them with a child to adopt without legal entanglements, and that it breached this promise. Citing Allen v. Morgan, 75 Ga. App. 738, 746-747 (44 SE2d 500) (1947), the trial court ruled that any such promise would not be enforceable because contracts for adoption are not enforced in Georgia as a matter of public policy. We agree with the Moores that Allen is not quite on point: the holding in that case was that adoption can be achieved only through judicial action, and a court in an adoption proceeding is not bound by a contract to adopt if it determines that the natural parents did not actually consent to the adoption. Compare Hendrix v. Hunter, 99 Ga. App. 785, 787 (2) (110 SE2d 35) (1959) (enforcing adoption contract despite natural mother’s subsequent withdrawal of consent). The thrust of these cases is not that any agreement touching on adoption will not be enforced, but that approval of an adoption is solely within the discretion of the court.

Nonetheless, the grant of summary judgment was proper. The DHR made no express promise to provide a child for adoption without legal entanglements, and we cannot agree that such a promise should be implied. Indeed, given the conflicting emotions involved in many adoptions and the role of the courts in any adoption process, a promise to provide a child for adoption without legal entanglements would be unreasonable to make and impossible to keep. The most which could be implied would be a promise to establish and follow proper procedures to minimize any problems, and we have held that that was done in this case. See Pope, 209 Ga. App. at 839 (2). Also see Division 2 below.

Moreover, if there was any breach, it would have occurred at the time the DHR placed the child with the Moores in April 1984. The Moores’ action was filed in February 1991, and this lapse of almost seven years is longer than any limitation period which could arguably be applicable for this breach of contract action. See OCGA §§ 9-3-24 (six years for breach of simple contract) and 9-3-25 (four years for breach of implied promise). The discovery rule is not applicable to a cause of action based on breach of contract; with respect to a breach of contract claim, the statute of limitation runs from the time the contract is broken rather than from the time the actual damage results or is ascertained. Owen v. Mobley Constr. Co., 171 Ga. App. 462 (1) (320 SE2d 255) (1984).

2. With respect to the Moores’ negligence claim, the trial court granted summary judgment based on the doctrine of collateral estoppel: we held that the DHR was not negligent in Pope, 209 Ga. App. at 839 (2), and the trial court concluded that the Moores could not relitigate this issue. We agree with the Moores that collateral estoppel does not apply here, however, as the Moores were not a party to the earlier suit nor in privity with a party to that suit. See Stiltjes v. Ridco Exterminating Co., 197 Ga. App. 852 (399 SE2d 708) (1990), aff'd 261 Ga. 697 (409 SE2d 847) (1991). Although the Moores had the opportunity to participate in the earlier suit, it was as the representative of their adopted son rather than as individuals. The legal rights asserted in Pope were the child’s and thus different from the legal rights asserted here, so the prior decision does not technically bar the Moores’ negligence claim in this action. See id. at 853.

Decided March 6, 1996.

Newton & Howell, John T. Newton, Jr., for appellants (case no. A95A2376).

William A. Fears, for appellant (case no. A95A2504).

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Kirwan, Parks, Chesin & Remar, Robert B. Remar, Susan M. Garrett, Thomas W. Malone, Robert H. Ben-field, Jr., Alfred D. Fears, for appellees.

Again, however, we conclude that summary judgment was nonetheless proper. Even though collateral estoppel does not apply, stare decisis does. We held in Pope that there was no evidence that the DHR was negligent, and the Moores have provided no additional evidence which would change this conclusion. Accordingly, the grant of summary judgment is affirmed with respect to both the Moores’ claims. Cf. Precise v. City of Rossville, 261 Ga. 210 (403 SE2d 47) (1991) (a judgment that is right for any reason will be affirmed).

Case No. A95A2504

In this case, Walter Keith Pope, the natural father of the child adopted by the Moores, challenges the trial court’s grant of summary judgment on his claims of professional negligence and negligence.

3. As Pope provided no expert testimony regarding professional negligence (and failed to attach an expert affidavit to his complaint as required by OCGA § 9-11-9.1), the trial court did not err in granting summary judgment on this claim.

4. And for the reason discussed above in Division 2 (i.e., we have held there was no evidence that the DHR was negligent and Pope has provided no additional evidence here), summary judgment on his negligence claim was also proper.

Pope’s argument that the trial court erred in ruling that his claims were barred by the statute of limitation is therefore moot.

5. Pope’s contention that the trial court should have addressed the termination of his parental rights is without merit, as that issue was not relevant to his claims.

Judgments affirmed.

Beasley, C. J., and Ruffin, J., concur.


text:
    A95A2378.
    McCLAIN v. THE STATE.
    (469 SE2d 756)
   Ruffin, Judge.

William McClain was convicted of child molestation. He appeals from the judgment of conviction and sentence following the denial of his motion for new trial, asserting five enumerations of error. For reasons which follow, we affirm.

The evidence showed that McClain lived with his girl friend and her three children, one of whom was the victim in this case. According to the seven-year-old victim, McClain made her touch him on his penis with her hand, and he touched her on the vagina with his hands and penis. The victim testified that McClain told her, “[t]his will be our little secret.”

After McClain’s arrest, he initially denied ever touching the victim. However, after questioning, he told authorities that the victim had initiated the contact by crawling into his chair with him while he slept. He stated that the victim grabbed his penis, which was hanging out of his boxer shorts, and asked him to teach her to make love. McClain admitted that he became aroused, and he stated that he agreed not to tell anyone. After McClain and the victim’s mother ended their relationship, the victim told her mother.

At trial, the State moved to introduce similar transaction evidence showing that McClain molested the victim on one other occasion after committing the offense charged. The State argued that the similar transaction evidence showed a course of conduct with the same victim over a period of two years in two different locations. After a hearing, the court granted the motion, and the victim testified that McClain had orally molested her at her aunt’s house. The court subsequently cautioned the jury not to consider the evidence for anything other than the limited purpose of showing the defendant’s knowledge or intent in relation to the crime for which he was being tried.

1. McClain argues that the trial court erred in allowing the State to mischaracterize his defense during closing argument.

McClain premised his defense on the theory that the victim was the aggressor. He introduced and elicited evidence that the victim grabbed his penis, asked him to teach her to make love, fondled her three-year-old brother, and watched pornographic films. McClain also testified that he feared the victim would grab his older son’s penis. In closing, the State argued that the victim “is a child that deserved to have a childhood. Her innocence was ripped from her. And here she’s been turned around and blamed. They’re calling her a slut, ladies and gentlemen.” Although the State’s choice of words may not have been the most refined, this inference from McClain’s defense was not unreasonable, and the argument was permissible. Davis v. State, 187 Ga. App. 517, 522 (4) (370 SE2d 779) (1988).

2. McClain argues that the trial court erred in charging the jury on the entire statutory definition of child molestation without giving a limiting instruction to reflect that the State had to prove the material allegation that he placed his penis in the victim’s hand, as charged in the indictment. He maintains that the instruction permitted the jury to find him guilty of performing an indecent act in the presence of a child, rather than the act charged in the indictment.

During deliberations, the jury inquired whether its decision had to be based strictly upon the language in the indictment which charged that McClain “performed an immoral and indecent act . . . by placing his penis in the hand of [the victim].” In response, the court recharged the jury on the statutory definition of child molestation, stating that persons commit the offense of child molestation “when they perform any immoral or indecent act to or in the presence of or with any child under the age of 14 with the intent to arouse or satisfy the sexual desires of either the child or the person.” The court also charged that the State bore the burden of proving every material allegation in the indictment. However, over McClain’s objection, the court refused to charge that placing McClain’s penis in the victim’s hand was a material allegation.

In criminal cases, jury instructions must be tailored to fit the allegations in the indictment and the evidence admitted at trial. Potts v. State, 207 Ga. App. 863 (1) (429 SE2d 526) (1993). If a jury charge recites the entire definition of a crime and the indictment does not, there is a reasonable probability that the deviation violated the accused’s due process rights by resulting in a conviction of a crime committed in a manner not charged in the indictment. Dukes v. State, 265 Ga. 422 (457 SE2d 556) (1995). Thus, this court has reversed convictions where the indictment specified that the offense was committed one way and the court charged the jury that it could be committed in two ways without giving a limiting instruction. Id. See, e.g., Lyman v. State, 188 Ga. App. 790 (374 SE2d 563) (1988).

In this case, however, McClain’s due process rights were not violated because the instruction did not suggest that the jury could convict him for child molestation in any way other than by finding that he placed his penis in the victim’s hand. Moreover, “ ‘the trial judge confined the elements of the crime to those charged in the indictment’ [cit.]” by instructing the jury that the State bore the burden of proving every material allegation in the indictment. Potts v. State, 207 Ga. App. at 865. This instruction was sufficient to dispel any possible juror confusion about the necessity of convicting McClain for the acts charged in the indictment. Id.

3. McClain argues that the trial court erred by considering the similar transaction evidence presented at trial in determining his sentence.

During the sentencing hearing, the State gave notice of its intention to use the similar transaction evidence presented at trial in aggravation. McClain objected, arguing that because he had not been convicted of committing the similar transaction, it should not be considered at sentencing. The court responded, “I will not consider . . . [the similar transaction] as far as charges brought against him. But I will take into account all of the evidence presented during the trial as to the conduct of the defendant in arriving at a decision as to the appropriate sentence.”

In Boney v. Tims, 254 Ga. 664 (333 SE2d 592) (1985), the Supreme Court held that “[i]n determining what sentence to impose upon a defendant, a trial court may consider any evidence that was properly admitted during the guilt-innocence phase of the trial. [Cit.]” Id. at 665. Nothing in Boney prohibits the application of this rule to properly admitted similar transaction evidence. Moreover, it follows that consideration of such evidence is permissible, inasmuch as sentencing courts are authorized to consider in aggravation “[a]ny lawful evidence which tends to show the motive of the defendant, his lack of remorse, his general moral character, and his predisposition to commit other crimes. . . .” Clark v. State, 186 Ga. App. 106, 108-109 (4) (366 SE2d 361) (1988). Accordingly, we find no error in the trial court’s consideration of the similar transaction evidence.

4. McClain argues that the trial court erred while charging the jury on reasonable doubt by stating that “moral and reasonable certainty is all that can be expected in an investigation.”

Although in Vance v. State, 262 Ga. 236, 237 (2) (416 SE2d 516) (1992), the Supreme Court specifically disapproved this language, the court’s charge in this case repeatedly and accurately conveyed the correct concepts of innocence until proven guilty and reasonable doubt. In light of the substantial evidence against McClain, including his own admissions, the court’s use of the language at issue was not reversible error “when ‘considered in the context of the charge as a whole.’ [Cit.]” Id. at 237.

5. McClain argues that the trial court erred by charging the jury that the similar transaction evidence could be considered for purposes other than those for which the State offered it.

The record shows that the State offered the similar transaction evidence to prove a course of conduct with the same victim over a period of time. The court, however, instructed the jurors that the evidence “may be. considered for the limited purpose of showing, if it does, the knowledge or intent of the defendant in the crimes charged in the case now on trial.”

Before the State may offer similar transaction evidence, it must establish that the evidence is being offered for a proper purpose, rather than to raise an improper inference which maligns the accused’s character. Williams v. State, 261 Ga. 640, 641 (2) (409 SE2d 649) (1991). Some of the purposes deemed proper include knowledge, course of conduct, identity, malice, intent, and motive. Id. at 642, n. 2. Although there was a difference between the State’s stated purpose and the court’s instruction, each of the purposes espoused by both the State and the court were permissible. Id. Moreover, McClain’s defense that the victim was the aggressor raised the issue of his intent.

Decided March 6, 1996

David L. Whitman, for appellant.

Daniel J. Porter, District Attorney, Jennifer M. Risley, Assistant District Attorney, for appellee.

6. Finally, McClain argues that the trial court erred in excusing a prospective juror for cause.

The record shows that the juror stated that he might have problems being fair because his mother recently had been falsely accused of molesting his niece. Although at one point the juror stated that he could make a decision based upon the evidence, he also stated that “too much has happened to make sure I’m fair to everybody,” and concluded that he was not comfortable with the case because “it hits too close to home.”

The decision to strike a juror for cause lies within the trial court’s discretion and will not be disturbed on appeal absent manifest abuse of that discretion. Davis v. State, 187 Ga. App. 517, 519 (2) (370 SE2d 779) (1988). In light of all the circumstances, including the juror’s expressed doubts regarding his ability to be impartial, we find the trial court did not abuse its discretion. Id.; cf. Jones v. State, 232 Ga. 324, 330 (206 SE2d 481) (1974) (a juror’s opinion of his qualification is by no means determinative).

Judgment affirmed.

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