author: Andrews, Chief Judge.

text:
    A97A1190.
    ODIM v. THE STATE.
    (491 SE2d 218)
   Andrews, Chief Judge.

Torri Lavell Odim appeals from his conviction of armed robbery, burglary, and possession of a firearm during the commission of a felony, all resulting from a home invasion.

1. Viewed with all inferences in favor of the jury’s verdict, the evidence was that, on December 21, 1994, Watts and Vasser, an acquaintance of Watts, were in Watts’ apartment when both doors were kicked in and six armed men entered. Watts, who was in his kitchen, recognized co-defendant Fortune from the neighborhood and saw Odim and Pryer come in behind Fortune. Watts’ 17-year-old daughter Spears was in the bedroom with her 12-year-old sister and heard the entry. Spears stepped into the hall and saw Fortune, along with Odim and Pryer. Spears then locked herself and her sister in the bedroom, they climbed out the window, and Spears called the police. Because she was so upset, she nearly passed out after calling the police.

Responding to the call, Officer Barge saw a light-colored car leaving the apartment complex and radioed this information to other officers in the area. Barge found Watts and Vasser very excited and upset when he arrived. Spears and her sister, also agitated, returned to the apartment and all four victims began attempting to describe the assailants to Barge. The four described sports team jackets being worn by the robbers, including a Bengals jacket, an aqua and purple jacket, and maybe a Bulls jacket. During this description, Barge heard over his walkie-talkie that Sgt. McBurnett had spotted and stopped a car matching Barge’s description of the car seen leaving the apartments.

When McBurnett spotted the white Riviera and checked the license plate, he discovered the plate was registered to another car. After turning on his blue lights to stop the car for this violation, McBurnett saw a lot of activity in the car, which finally pulled over. There were six men in the car and one ran, taking something with him, before McBurnett could get them all in custody. Officer Barge then brought Vasser and Spears to this location and both identified these five men as the robbers and Spears called co-defendant Fortune by name. Watts had stayed at his apartment with his younger daughter during this time because she was so upset, but he went to the police station around 1:00 a.m. The five men were being processed and Watts viewed them there, identifying them as the robbers.

A Bengals jacket was found in the Riviera, along with a green jacket with red, blue and brown trim. Also found in the rear floorboard was a .9 mm handgun, fully loaded and cocked, and a crumpled fifty dollar bill. Four hundred dollars had been taken from Watts in the robbery.

Spears testified at trial that, while she did not know Odim’s name, she knew him by face because she had seen him around before.

Two co-defendants, McDowell and Hodges, testified that Odim participated in the robbery.

Odim testified that he had paid McDowell for a ride home from his job and, while he was in the apartment complex helping McDowell get some drugs, he did not participate in the robbery but was visiting with some guys from the area when it occurred.

The issue of which version of these events to believe was for the jury, which resolved the credibility issues in favor of the State. OCGA § 24-9-80. This court will not weigh the evidence or determine witness credibility, but only determines the sufficiency of the evidence. Daras v. State, 201 Ga. App. 512 (1) (411 SE2d 367) (1991). The evidence was sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Odim’s first enumeration is that the court erred in denying his motion to suppress the pre-trial identifications by Spears and Watts, based on State v. Frye, 205 Ga. App. 508 (2) (422 SE2d 915) (1992) and Daniel v. State, 150 Ga. App. 798, 799 (1) (258 SE2d 604) (1979).

“A two-part test is used to determine whether identification evidence should be excluded. ‘The threshold inquiry is whether the identification procedure was impermissibly suggestive. Only if it was need the court consider the second question: whether there was a very substantial likelihood of irreparable misidentification. (Cit.)’ Gravitt v. State, 239 Ga. 709, 710 (4) (239 SE2d 149) (1977).” Frye, supra.

Pretermitting the fact that neither identification here was the “one-on-one” showup that is the focus of most such inquiries, see Daniel, supra, but involved a group of five men of the same race and general age group, arguably making the showups not impermissibly suggestive, we consider the second question. See Clempson v. State, 144 Ga. App. 625 (1) (241 SE2d 495) (1978).

“ ‘ “This court has thoroughly considered the dangers inherent in the practice of bringing single suspects to confront witnesses for the purpose of pre-trial identification, in particular, the danger of the ‘ “substantial likelihood of irreparable misidentification.” (Cit.)’ (Cit.) To evaluate that likelihood, we apply the test enunciated in Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) ((1972)) which requires that we consider the witnesses’ opportunity to view the suspect at the time of the offense, the witnesses’ degree of attention, the accuracy of the witnesses’ prior description and their level of certainty. However, both state and federal courts have also recognized consistently those countervailing considerations which may render the one-on-one confrontation permissible if not desirable. These include the necessity ... to resolve promptly any doubts as to identification so as to enhance the accuracy and reliability of the identification, thus expediting the release of innocent subjects. (Cits.)” ’ Simmons v. State, 209 Ga. App. 21, 22 (2) (432 SE2d 623) (1993).” Sabo v. State, 226 Ga. App. 106, 107 (2) (485 SE2d 591) (1997).

Here, Spears saw Odim standing within ten feet of her in the short, lighted hallway outside the doorway of the bedroom. Although she could not recall his name, she recognized his face from seeing him around the neighborhood. The showup after the stop of the car occurred within 15 minutes of Officer Barge’s arrival on the scene of the robbery, which was within minutes of its occurrence. Spears was intently focused on the men in the apartment because she believed her father’s life was in danger. While Spears, Watts and Vasser’s initial descriptions of the men were somewhat jumbled, the description of the clothing worn was much more specific. See Nicholson v. State, 265 Ga. 711, 713 (2) (462 SE2d 144) (1995). Spears’ identification of Odim was properly admitted. Id.; Sabo, supra.

Watts’ visit to the jail around 1:00 a.m., within a few hours of the robbery, during which he also viewed the five men, was also properly admitted. Watts knew co-defendant Fortune and saw him come in one door, followed by Odim, who pointed a pistol at Watts. The robbery lasted five to seven minutes, during which Watts focused on the four men he could see, including Odim. There was no error in admitting his identification. Sabo, supra; Simmons, supra at 22 (2).

3. The third enumeration complains of the court’s charge on both parties to the crime and conspiracy, because Odim was not accused of conspiracy and such a charge was duplicative of that on parties to the crime.

“A conspiracy may be proven and a jury charge may be given on conspiracy, even though a defendant is not indicted under that theory. [Cit.]” Williams v. State, 267 Ga. 308, 309 (2) (477 SE2d 570) (1996).

Also, charging on both conspiracy and parties to the crime is not error. Alexander v. State, 186 Ga. App. 787, 789 (2) (368 SE2d 550) (1988).

4. Finally, Odim contends that his trial counsel rendered ineffective assistance and denial of his motion for new trial on this ground was error.

“A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. [Cit.]” Garrett v. State, 196 Ga. App. 872, 874 (1) (397 SE2d 205) (1990). A conviction will not be reversed on the basis of ineffective assistance of counsel unless “counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Carter v. State, 176 Ga. App. 632, 633 (337 SE2d 413) (1985), quoting from Strickland v. Washington, 466 U. S. 668, 669 (104 SC 2052, 80 LE2d 674) (1984).

Odim contends that his trial counsel was ineffective for failing to use a felony conviction to impeach co-defendant McDowell when he testified, failing to use Detective Douglas’ supplemental report to impeach Watts and Spears, failing to call witnesses from the preliminary hearing to show that Watts did not identify Odim at that hearing, and failing to introduce a picture of Odim showing that he had gold teeth which were not mentioned by the witnesses in their descriptions to police.

Trial counsel testified at the motion for new trial hearing and explained his strategic reasoning for these decisions, except for McDowell’s felony conviction, which counsel acknowledged that he had forgotten.

With the exception of forgetting McDowell’s conviction, although appellate counsel may disagree with the decisions made, and while they may have been wise or unwise, they do not equate with ineffective assistance of counsel. Luallen v. State, 266 Ga. 174, 177 (3) (b) (465 SE2d 672) (1996); Hammond v. State, 264 Ga. 879, 882 (4) (452 SE2d 745) (1995); Riser v. State, 222 Ga. App. 348, 349 (474 SE2d 632) (1996); Williams v. State, 218 Ga. App. 785, 788 (3) (463 SE2d 372) (1995).

Regarding the failure to use McDowell’s felony conviction, we conclude, as did the trial court, that there is no reasonable possibility that, but for counsel’s unprofessional error, the result of the proceeding would have been different. Mathis v. State, 224 Ga. App. 521, 523 (2) (481 SE2d 256) (1997). McDowell testified that he was going to plead guilty to a felony, theft by receiving the stolen car driven that night, and acknowledged on cross-examination that he was also charged with a second felony, possession of cocaine.

Decided August 15, 1997.

Rubin, Winter, Rapoport & Hall, Robert G. Rubin, for appellant.

Paul L. Howard, Jr., District Attorney, Elizabeth W. Morn, Charles E. Rooks, Carl P. Greenberg, Assistant District Attorneys, for appellee.

Judgment affirmed.

Ruffin and Eldridge, JJ, concur.

       Odim was convicted of three counts of burglary which merged.

       Vasser did not testify at the trial.

       Trial counsel did not represent Odim at the preliminary hearing, but did have the audiotape from that hearing transcribed to the extent possible, portions of it being inaudible.


source: Caselaw Access Project

license: Public Domain

text:
    A97A1439.
    O’NEAL v. THE STATE.
    (491 SE2d 216)
   Andrews, Chief Judge.

Craig O’Neal appeals from the judgment entered on a jury verdict finding him guilty on two counts of aggravated assault. He contends on appeal that the trial court erred in denying his motion to suppress and in ruling that the two counts of aggravated assault do not merge. We affirm the judgment of the trial court.

The evidence at trial, taken in the light most favorable to support the jury’s verdict, was as follows. Jack Martin, the owner of the Country Kitchen restaurant, was leaving work around 11:00 on the night in question. He was carrying some food and the keys to his truck and was within a few steps of the truck when someone came running toward him with a weapon held in both hands about chest high. The assailant ordered him to freeze. Martin dropped the food and keys and started to “back-pedal.” As he was backing up, Martin pulled out his own gun and fired. Martin tripped and fell down, firing one more time from the ground. He heard two gunshots and saw the assailant running back toward the road.

Shortly after being informed of the crime, officers found O’Neal and his brother in the woods about a quarter mile from the restaurant. Investigators found a tennis shoe in the mud in the restaurant parking lot and, when they arrested O’Neal, found the other tennis shoe beside him on the ground.

Agent Mansfield, with the GBI, testified he interviewed O’Neal after the arrest. He said O’Neal wrote a letter of apology to Martin, in which he admitted to firing the gun “unintentionally.”

1. In his first enumeration of error, O’Neal claims the trial court erred in denying his motion to suppress the statement made to investigators and his letter of apology to Martin. O’Neal claims the statement and apology were not voluntary because he was promised he would be charged with a lesser offense if he admitted to firing the shots. O’Neal testified at the Jackson-Denno hearing that Agent Mansfield told him that if he or one of the other suspects arrested did not say which one had done the shooting, they would all be charged with attempted murder.

Agent Mansfield testified at the hearing and denied threatening O’Neal in any way. Jerry Torbert, from the Sheriff’s Department, testified that he was present during O’Neal’s questioning and no one threatened O’Neal with a greater charge.

“The standard for determining the admissibility of confessions is the preponderance of the evidence. To determine whether the state has proven that a confession was made voluntarily, the trial court must consider the totality of the circumstances. Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal.” (Citation and punctuation omitted.) Gober v. State, 264 Ga. 226, 228 (443 SE2d 616) (1994).

After hearing testimony, the trial court determined the statement and letter of apology were admissible. The court found the defendant was advised of his Miranda rights, that he understood and voluntarily waived those rights, and that the statement was freely and voluntarily given.

O’Neal has not shown that the trial court’s findings as to the credibility of witnesses and the free and voluntary nature of his statement were in error. Accordingly, we uphold the trial court’s decision. Berry v. State, 267 Ga. 605, 610 (481 SE2d 203) (1997).

2. O’Neal also claims the trial court erred in finding the two counts of aggravated assault did not merge and in sentencing him on both of them. One count charged aggravated assault with intent to rob and one count charged aggravated assault with a deadly weapon. O’Neal argues that this was a single incident proven by the same facts and not separate and distinct acts which would support a conviction under both counts.

In determining whether convictions on different counts merge, the law is that when the same underlying facts are used to prove both offenses, the convictions merge. Hambrick v. State, 256 Ga. 148, 150-151 (344 SE2d 639) (1986). Likewise, when the evidence shows that one crime is complete before the other occurs, there is no merger. Keaton v. State, 193 Ga. App. 603 (388 SE2d 737) (1989).

Here, the evidence at trial showed that O’Neal and some accomplices went to the Country Kitchen to steal some meat and also money if they found any. O’Neal saw Martin leaving the restaurant and ran toward him, pointed his gun and yelled freeze. At that point, the facts necessary for the jury to find O’Neal guilty of aggravated assault with intent to rob are complete.

Decided August 15, 1997.

Ham, Jenkins, Wilson & Wangerin, Kevin A. Wangerin, for appellant.

Tommy K. Floyd, District Attorney, Gail M. Travillian, Assistant District Attorney, for appellee.

Next, Martin dropped what he was carrying, began backing away and reached for his own gun. Martin fired his gun at O’Neal and O’Neal then fired two shots from his gun. These facts prove the offense of assault with a deadly weapon. Accordingly, the underlying facts used to prove each offense are different and the evidence showed that one crime was complete before the other occurred. Taylor v. State, 219 Ga. App. 475, 477-478 (465 SE2d 473) (1995); Johnson v. State, 190 Ga. App. 172, 173 (378 SE2d 700) (1989); Lambert v. State, 157 Ga. App. 275 (277 SE2d 66) (1981).

Dupree v. State, 217 Ga. App. 684 (458 SE2d 698) (1995), relied on by the defendant, does not demand a different result. In that case the defendant was charged with aggravated assault and aggravated battery. The State argued the aggravated assault was completed before the aggravated battery occurred. The victim testified: “I turned and looked and he shot me.” We concluded this was a single transaction.

As the evidence discussed above shows, that is not the case here. The convictions do not merge. Keaton, supra.

Judgment affirmed.

Ruffin and Eldridge, JJ., concur.


author: Birdsong, Presiding Judge.

text:
    A97A1645.
    CHESSER v. THE STATE.
    (491 SE2d 213)
   Birdsong, Presiding Judge.

Larry Lamar Chesser appeals his conviction of arson in the first degree in Clayton County. He enumerates three errors. Held:

1. Appellant asserts the trial court erred in admitting a display map and computer summary of appellant’s Newton County volunteer firefighter activities, as there was no USCR 31.3 hearing to determine the admissibility of these prior alleged transactions and as they were not offered for a permissible purpose. Appellant also contends that it was error to admit these documents, as they do not illustrate appellant’s motive but rather are inadmissible evidence of appellant’s bad character and/or constitute unindicted prior transactions.

(a) At trial, appellant made no objection based on the several grounds asserted in his enumeration of error no. 1; rather, he only objected to the introduction to SE-54 on the grounds that it was hearsay and that the witness who identified it had no personal knowledge thereof. The witness thereafter testified that he had personal knowledge of how the statistics were obtained for marking the map, what each pin on the map represented and that he either personally inserted the various pins into the map or was present and monitored the placement of the pins. The State also tendered a computer printout that was used in compiling the statistics which were indicated by the various colored pins on the map. Appellant expressly stated that he had no objection to the tender of the computer printout, SE-55, at trial.

Having expressly declined to make a timely objection at trial to the admission in evidence of the computer printout, appellant has waived this issue on appeal, and in essence acquiesced in the trial court’s ruling. Denham v. State, 218 Ga. App. 191, 192 (2) (a) (460 SE2d 869).

At trial, appellant failed to object to the admissibility of the map on the same grounds as asserted in his enumeration of error and brief; accordingly, he has waived on appeal all issues of admissibility to which he failed to pose a timely, specific objection at trial. Ray v. State, 187 Ga. App. 451, 452 (370 SE2d 629); Frymyer v. State, 179 Ga. App. 391 (3) (346 SE2d 573). Likewise, he has waived on appeal all issues of admissibility not reasonably contained within the enumeration of error, regardless whether such issues were subject to a timely objection at trial. Krebsbach v. State, 209 Ga. App. 474, 475 (2) (433 SE2d 649).

Further, it is too late to pose for the first time in a motion for new trial an original objection to evidence admitted at trial or to modify or expand the scope of an objection made at trial. Compare Sanders v. State, 134 Ga. App. 825, 826 (2) (216 SE2d 371). This holding is consistent with the established rule that “ ‘in order to preserve a point of error for the consideration of an appellate court, counsel must take exception to the alleged error at the earliest possible opportunity in the progress of the case by a proper objection made a part of the record.’ ” Sharpe v. Dept. of Transp., 267 Ga. 267 (1) (476 SE2d 722). In this State, with limited exception not here applicable (see generally Sharpe, supra at 271), it is necessary to object to evidence at the time it is actually offered. Jackson v. State, 217 Ga. App. 485, 488 (4) (a) (458 SE2d 153) (objection raised after State had rested its case was too late).

(b) No evidence was offered that any of the fires depicted on the map had been set by appellant; rather, the information contained on the map showed the unusually high number of fires which appellant either had called in, been the first person at the fire scene, or had otherwise participated as a volunteer fireman at the fire scene. In the interest of judicial economy, we also find that contrary to appellant’s contention, to the extent that the display map and computer summary tend to show that appellant reported an excessive number of fires, these exhibits have independent relevance as to appellant’s motive, course of criminal conduct, scheme, and bent of mind. Assuming without deciding that the information contained in these exhibits, in fact, incidentally placed defendant’s character in issue, it still would not be error to admit them in evidence. “ ‘While motive is not an essential element in the proof of the crime of [arson], the State is entitled to [show a possible motive for the arson].’ [Cit.] Such evidence is relevant to an issue in the case and is not rendered inadmissible merely by the fact that it incidentally places the defendant’s character in issue.” Whitener v. State, 261 Ga. 567, 568 (2) (407 SE2d 735); see Norman v. State, 197 Ga. App. 333, 336 (4) (398 SE2d 395). “ ‘[T]he Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors. Where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it.’ ” Id. “ ‘Admissibility of evidence is a matter which rests largely within the sound discretion of the trial court.’ ” Santone v. State, 187 Ga. App. 789, 792 (371 SE2d 428). The posture of the trial transcript does not support a finding that the trial court abused its discretion in the admission of this relevant evidence. In view of our holding in Division 1 (a), above, we decline to address the other grounds asserted in appellant’s first enumeration of error.

2. Appellant contends the trial court committed reversible error by admitting in evidence a certified copy of a co-defendant’s plea, sentence and arson conviction in Butts County (State’s Exhibit No. 51 (S-51)), as appellant was not convicted for this crime and it portrayed him and the co-defendant as a working team, thereby denying appellant a fair trial. In his brief, appellant also argues that this act was not one of the three offered in the State’s USCR 31.3 notice. Although this latter issue is beyond the reasonable scope of appellant’s enumeration of error no. 3, as crafted, none of the issues asserted by appellant regarding this enumeration has been preserved on appeal.

The State tendered S-49 which pertained to the co-defendant’s conviction for an arson committed in Butts County; it was admitted without objection. Because appellant failed to object timely to the admission of this evidence on the grounds he now asserts on appeal, he cannot complain of such error on appeal. Lawton v. State, 259 Ga. 855, 856 (2) (388 SE2d 691).

The record, however, reflects that S-51 was also admitted in evidence but that this exhibit pertained inter alia to co-accomplices and appellant’s indictment for an arson of the Red Oak United Methodist Church in Henry County. We first hold that any error arising from the introduction of S-51 was not preserved for appeal, because this exhibit pertained to the burning of the Red Oak United Methodist Church, located in Henry County, and thus is beyond the reasonable scope of appellant’s enumeration of error no. 3, as crafted. An enumeration of error cannot be enlarged by a brief to give appellate viability to an issue not reasonably contained in the original enumeration. Krebsbach v. State, supra. Additionally, appellant objected in the jury’s presence to the introduction of S-51 without stating the specific grounds for the objection. Following this bare objection, a bench conference was held. The transcription of this bench conference establishes that appellant failed to make a specific objection in proper form to the admission of S-51; rather, appellant merely requested that the trial court “keep it open to his name being there just as part of this indictment.” For this additional reason, no issue as to the admission of this document has been preserved on appeal. ‘Where appellant fails to pose timely a specific objection in proper form to [the admission of documentary evidence], an appellate court is precluded from reviewing the . . . issue on appeal.” Unden v. State, 218 Ga. App. 463, 465-466 (4) (462 SE2d 408); compare McGee v. State, 205 Ga. App. 722, 727 (9) (423 SE2d 666) (a request for the trial court to act is not the proper form for an objection or motion).

Additionally, assuming arguendo that the nebulous remarks of appellant’s counsel at trial may be considered as a specific objection to S-51 on the grounds that the exhibit contained the name of appellant, appellant obtained the only relief to which he was entitled based on this particular objection when the trial court directed that S-51 be redacted so as to delete appellant’s name before it was allowed to go out with the jury. “In no case will the trial judge’s ruling be reversed for not going further than requested.” Lyon v. State, 262 Ga. 247, 248-249 (3) (a) (416 SE2d 523). In any event, as appellant did not specifically object at trial to S-51 on the grounds that defendant was thereby denied a fair trial because S-51 portrayed him and the co-defendant as a working team, this issue would not be preserved on appeal. Mundy v. State, 259 Ga. 634, 635 (5) (385 SE2d 666).

Finally, even if error had occurred in the admissions of S-49 and 51, it was harmless, as it is highly probable that such error would not affect the verdict, as appellant’s name was not included in S-49, appellant’s name was redacted from S-51 before it went out with the jury, and the witness had already testified, without objection (see generally Smarr v. State, 199 Ga. App. 572, 573 (2) (405 SE2d 561)), that appellant was involved in the burning of the Red Oak United Methodist Church — the property involved in the arson depicted in S-51. Moreover, “[ejvidence is harmless where admissible evidence of the same fact is before the jury.” Scott v. State, 206 Ga. App. 23, 26 (1) (c) (424 SE2d 328). For each of the above-discussed reasons, appellant’s third enumeration is without merit.

Decided August 15, 1997.

Elizabeth A. Baker, for appellant.

Robert E. Keller, District Attorney, Nancy T. Bircher, Assistant District Attorney, for appellee.

Judgment affirmed.

Ruffin and Eldridge, JJ, concur.


author: Ruffin, Judge.

text:
    A97A0897.
    HARGETT’S TELEPHONE CONTRACTORS, INC. et al. v. McKEEHAN.
    (491 SE2d 391)
   Ruffin, Judge.

Catherine McKeehan was killed when her car collided with a truck driven by Jeffrey Dickson. McKeehan’s estate (“McKeehan”) brought this personal injury action, which includes allegations that Dickson caused the collision and that his employers, Hargett’s Telephone Contractors, Inc. (“Hargett”) and BellSouth Telecommunications, Inc. (“BellSouth”) are liable for his actions through the doctrine of respondeat superior. The trial court denied Hargett’s and Bell-South’s motions for summary judgment, in which the companies sought to show that Dickson was not acting as their employee at the time of the incident. We granted this interlocutory appeal to review the trial court’s order and, for the following reasons, reverse.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of • material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” (Emphasis in original.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

The record in this case shows BellSouth contracted for Hargett’s services in constructing utility lines in the Gainesville and Athens, Georgia areas. Hargett outsourced some of this work, including work in Forsyth County, Georgia, to Dickson. Hargett paid Dickson on a production basis, per foot of utility cable buried, and also paid him per hour for some duties. A clause in Dickson’s contract required him to physically conduct quality inspections “in accordance with telephone company practices and procedures,” and Hargett penalized him $100 for each defect in the work.

On Sunday, March 6, 1994, Dickson left his home in Oconee County and drove to Forsyth County with the “main objective” of conducting quality inspections on line he had buried for Hargett. Although the contract required these inspections, neither Hargett nor BellSouth had specifically instructed Dickson to conduct any inspections or do any work on that Sunday. Dickson testified that he was not scheduled to work for Hargett or BellSouth that day, and that no one at either company knew he was making the inspections. Dickson drove his personal truck, as neither Hargett nor BellSouth provided him a vehicle or reimbursed him for mileage.

During the day, Dickson made some inspections, stopped for a personal purchase at a fishing equipment store, and scouted new residential developments which might yield him more work. Late in the afternoon, on his way home, he stopped at Wal-Mart in Gainesville and purchased fishing tackle. As he drove from Wal-Mart towards his home, he was involved in the collision which gave rise to this suit.

Although Hargett and BellSouth argue they bear no liability for Dickson’s acts because he was an independent contractor rather than an employee, we need not decide that issue. Even assuming Dickson was BellSouth’s and Hargett’s employee, and viewing the evidence under the standards set forth in Lau’s Corp., supra, we find no facts in the record that would support a jury’s finding that Dickson was acting in the scope of his employment at the time of this accident.

“ ‘To hold a master liable for a tort committed by his servant, it must appear that at the time of the injury the servant was engaged in the master’s business and not upon some private and personal matter of his own; that is, the injury must have been inflicted in the course of the servant’s employment. The test is not that the act of the servant was done during the existence of the employment, but whether the servant was at that time serving the master.’. . . [Cits.]” (Emphasis in original.) Schofield v. Cox Enterprises, 212 Ga. App. 354, 355 (441 SE2d 693) (1994). “The law is clear that in the absence of special circumstances a servant in going to and from work in an automobile acts only for his own purposes and not for those of his employer.” Chappell v. Junior Achievement &c., 157 Ga. App. 41, 42-43 (276 SE2d 98) (1981). Here, Dickson was going home after visiting several work sites, and we find no “special circumstance” removes this case from the general rule.

In Chappell, on which McKeehan heavily relies, the employee was driving a vehicle that his employer provided so the employee could attend a special function. We noted that an exception to the general rule exists “ ‘where the vehicle is taken to the employee’s home because the employee’s possession of it enables him more conveniently to perform some duty for the master.’ [Cit.]” Id. at 43. Chappell does not control this case because Dickson drove his own vehicle and was not reimbursed for mileage. Also inapplicable are similar cases involving the principle that an employee is presumed to be acting in the scope of employment when driving his employer’s vehicle, such as in Gordy Constr. Co. v. Stewart, 216 Ga. App. 882, 883 (456 SE2d 245) (1995), and Intl. Business Machines v. Bozardt, 156 Ga. App. 794, 796 (275 SE2d 376) (1980).

We also reject McKeehan’s argument that the “special mission” exception, as set forth in Jones v. Aldrich Co., 188 Ga. App. 581, 582 (1) (373 SE2d 649) (1988), applies to these facts. We noted in Aldrich Co. that “[a]n exception to the general rule is to be made . . . where the employee undertakes a special mission at the direction of the employer. [Cit.] As it is said, ‘[w]here the employee, before or after customary working hours, is on his way home after performing . . . some special service or errand or the discharge of some duty incidental to the nature of his employment in the interest of, or under [the] direction of, his employer, and an injury arises en route from the . . . place of performance of the work to the home, such injury is considered as arising out of and in the course of the employment.’ [Cits.]” Id. at 583 (1).

McKeéhan argues that the circumstances of Dickson’s collision fit this exception because he was on his way home after performing, at uncustomary hours, a duty “incidental to the nature of” his work and “in the interest of” his employer. We disagree, as such a broad interpretation of the exception would devour the general rule of no liability. Any time an employee drives home from the workplace after working uncustomary hours, he or she does so after performing duties “incidental to” his or her work and “in the interest of” his or her employer. The exception stated in Aldrich Co. is narrower and requires that the errand or mission itself be a “special” or uncustomary one made at the employer’s request or direction. See id.

The facts of Aldrich Co. illustrate such a situation. As we observed in Riel v. Paulding County Bd. of Ed., 206 Ga. App. 230, 232 (1) (425 SE2d 305) (1992), in Aldrich Co. the collision occurred as the employee drove home after making a “special errand,” an off-hours business trip to a job site some distance from her usual workplace. Id. at 582-583. Similarly, in Bozardt, supra, the employee was driving to eat dinner while on a special business trip, far from his home and his usual place of work, “at the express [direction] of his employer.” Id. at 797. In Moffitt v. Hutchinson, 210 Ga. App. 295, 296 (435 SE2d 707) (1993), we reiterated that the “special mission” exception exists “ ‘when the employee undertakes a special mission at the direction of (his) employer. . . .’” (Emphasis in original.) Moreover, as we held in Smith v. Travelers Ins. Co., 139 Ga. App. 45, 47-48 (227 SE2d 868) (1976), an employee’s trip is not a “special mission” if it involves nothing more than travel to his or her usual place of work.

Decided August 5, 1997

Reconsideration denied August 18, 1997

Greer, Klosik & Daugherty, Robert J. McCune, Cooper & Avery, Gary M. Cooper, Ernest R. Bennett, Jr., J. Henry Walker IV, James R. Thompson, for appellants.

Michael J. Bowers, Attorney General, C. Latain Kell, Senior Assistant Attorney General, Barnhart, O’Quinn & Williams, Terry E. Williams, Husby, Myers & Stroberg, William A. Myers, Winship E. Rees, for appellee.

Here, although Dickson was required by contract to perform the quality inspections he undertook the day of the collision, these duties were part of his regular work for Hargett and BellSouth. He drove to his usual job sites to conduct these inspections. Nothing in the record suggests Hargett or BellSouth required that he make a special trip that Sunday to inspect. Likewise, no evidence suggests the inspections could not have been made as part of his everyday rounds. Therefore, his trip to perform those duties can in no way be considered a “special mission” or errand done at the direction of his employer. See Smith, supra.

Because the evidence and all reasonable inferences construed in McKeehan’s favor show a lack of evidence to support McKeehan’s theory that Dickson was acting in the scope of his employment with Hargett and BellSouth, we reverse the trial court’s opinion with direction that summary judgment be entered for BellSouth and Hargett as to any liability based on respondeat superior.

Judgment reversed with direction.

Birdsong, P. J., and Eldridge, J., concur.


author: Eldridge, Judge.

text:
    A97A1678.
    AYCOCK et al. v. CALK et al.
    (491 SE2d 383)
   Eldridge, Judge.

Arising from an ongoing problem between neighbors is this appeal from the grant of appellees’ motion for summary judgment on the ground that appellants’ complaint should have been pled as a compulsory counterclaim to a case that had been previously adjudicated adversely to appellants, Laura Day Calk v. Walter Aycock and Joan Aycock, Case No. 94-6451-4, BeKalb Superior Court. Appellee Thomas Calk was not a party to that previous action.

While Calk v. Aycock, Case No. 94-6451-4, was pending, appellants, Walter Aycock and Joan Aycock, filed the instant complaint, Aycock v. Calk, Case No. 94-7257-4, BeKalb Superior Court, against Laura Calk and Thomas Calk, appellees, which case arose out of the identical facts and circumstances as Calk v. Aycock, except that Thomas Calk was a named party to this action. Further, this case alleged that appellees are joint tortfeasors, as well as the alleged independent tortious acts of appellees. The Calks filed an answer and a counterclaim to appellants’ complaint.

An adverse judgment in Calk v. Aycock, supra, was filed on April 21, 1995, and was not appealed by appellants. Thereafter, the appellants, the Aycocks, moved that the Calks’ counterclaim filed in Aycock v. Calk be dismissed as barred by the doctrine of res judicata, even though Thomas Calk had not been a party to any previous action and was not subject to res judicata. The trial court granted such motion, not only as to Laura Calk, but also as to Thomas Calk, and sua sponte dismissed the Aycocks’ complaint, as well, on the same grounds.

In dismissing the appellants’ complaint, the trial court went outside the record, making such action a grant of summary judgment under OCGA § 9-11-56, but without giving notice that it would be an adjudication on the merits. This Court, in Aycock v. Calk, 222 Ga. App. 763 (476 SE2d 274) (1996), reversed the judgment of the trial court on procedural grounds that the trial court had not afforded appellants adequate time to oppose the motion in that “[w]hile the record as it stands may support the trial judge’s ruling, it also shows that the Aycocks were not notified that the trial court intended to rule upon the merits of their claim and that they were not provided a full and final opportunity to respond to the court’s sua sponte review.” Id. at 764.

Now the case sub judice is back after appellees moved for summary judgment on appellants’ complaint, appellants received an opportunity to respond, and the trial court granted summary judgment based upon res judicata, collateral estoppel, and compulsory counterclaim as to the Aycocks. The order granting summary judgment was entered on February 10, 1997, on such grounds. Appellants filed their notice of appeal on March 10, 1997.

Appellants’ pro se pleadings and statement of facts in the brief make admissions in judicio that the two actions did in fact arise from the same transactions and occurrences as the prior action, but seek to avoid the consequences by making the following arguments: (1) that the prior trial judge did not tell them that they had a right to appeal the adverse judgment; (2) that they had ineffective assistance of counsel in the prior civil action; (3) that the prior trial, from which no appeal was made, was not fair; (4) that the current trial judge was not a resident of DeKalb County; (5) that since one appellant prevailed in the prior action, then she should be able to sue now; and (6) that, under OCGA § 9-11-13 (f), justice requires that appellants should be allowed to assert in this action the counterclaim which should have been filed in the prior action, but was not due to “oversight, inadvertence, or excusable neglect.” Held:

Although appellants set forth various strategic reasons that they contend demonstrate that the trial court erred in granting summary judgment against them, the principles of res judicata, collateral estoppel, and compulsory counterclaim are dispositive of the case sub judice. Based upon these principles, we agree in part and disagree in part that the trial court erred and, accordingly, affirm in part and reverse in part.

OCGA § 24-3-30 provides that, without offering the pleadings of the opposite party into evidence, a party may use such pleadings as admissions in solemn judicio. See East Tenn. &c. R. Co. v. Kane, 92 Ga. 187 (18 SE 18) (1893); Carver v. Saye, 198 Ga. App. 146, 147 (1) (400 SE2d 683) (1990); Greene v. Gulf Oil Corp., 119 Ga. App. 87, 89 (166 SE2d 626) (1969). What a party admits to be true in his pleadings, he is not permitted subsequently to deny. State Hwy. Dept. v. Lumpkin, 222 Ga. 727 (152 SE2d 557) (1966), rev’d on other grounds, Dept. of Transp. v. Hardin, 231 Ga. 359, 361 (201 SE2d 441) (1973). When admissions in judicio conflict with evidence on the merits, the trial court, on summary judgment, can either treat such evidence as amending the pleadings or not allow the conflicting evidence to be admitted so that the admission in judicio governs until formally withdrawn by amendment. Walker v. Jack Eckerd Corp., 209 Ga. App. 517 (434 SE2d 63) (1993). Where admissions in judicio have not been expressly withdrawn, the party is bound by such admissions; even if withdrawn, such pleadings may still be treated as admissions, but the party making such admissions is now allowed to tender conflicting evidence. Florida Yellow Pine Co. v. Flint River &c. Co., 140 Ga. 321, 322 (2) (78 SE 900) (1913); Strozier v. Simmons U.S.A. Corp., 192 Ga. App. 601 (385 SE2d 677) (1989); Watkins v. Price Mercantile Co., 45 Ga. App. 272 (164 SE 231) (1932); Clift & Goodrich, Inc. v. Mincey Mfg. Co., 41 Ga. App. 38, 39 (1) (152 SE 136) (1930). The rule as to admissions in judicio applies only to admissions of fact and does not apply to opinions or conclusions. Walker v. Jack Eckerd Corp., supra at 518; Ellerbee v. Interstate Contract Carrier Corp., 183 Ga. App. 828, 829 (2) (360 SE2d 280) (1987); Clift & Goodrich, Inc. v. Mincey Mfg. Co., supra. The Civil Practice Act does not alter the effect of admissions in judicio, even though it permits alternative pleadings; such pleadings must be used with caution at the pleader’s risk. Ditch v. Royal Indem. Co., 205 Ga. App. 478 (422 SE2d 868) (1992); Martin v. Pierce, 140 Ga. App. 897, 898-899 (1) (232 SE2d 170) (1977). An admission in judicio can be used on a motion for summary judgment. Walker v. Jack Eckerd Corp., supra at 518.

In the case sub judice, the record shows sufficient evidence under Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991), to pierce appellants’ pleadings by demonstrating the existence of a prior final judgment against appellants arising out of the same facts and occurrences. Appellants, instead of presenting evidence that shows the existence of material fact for jury determination, made admissions in their pleadings which show that the case sub judice arose from the same facts and circumstances as the former adjudication as to Laura Calk only.

OCGA § 9-11-13 (a) provides that, “if [a claim] arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim,” such claim must be asserted as a compulsory counterclaim. Tenneco Oil Co. v. Templin, 201 Ga. App. 30, 31 (1) (410 SE2d 154) (1991); Goss & Goss Dev. Co. v. First Union Nat. Bank, 196 Ga. App. 436, 437 (1) (396 SE2d 19) (1990). “Same transaction or occurrence” has been broadly and realistically interpreted by the appellate courts to mean whether or not there exists a logical relationship between the respective claims of the parties. P & J Truck Lines v. Canal Ins. Co., 148 Ga. App. 3 (251 SE2d 72) (1978); Harbin Lumber Co. v. Fowler, 137 Ga. App. 90 (222 SE2d 878) (1975); Myers v. United Svcs. Auto. Assn., 130 Ga. App. 357 (203 SE2d 304) (1973). While appellants in the prior action had a compulsory counterclaim against Laura Calk, which they asserted instead as an independent action against both Laura Calk and Thomas Calk, under OCGA § 9-11-13 (f) the Aycocks had the right in the prior action to seek the trial court’s exercise of discretion to amend their answer in order to assert the compulsory counterclaim against Laura Calk and, thereafter, to ask leave to join Thomas Calk as an additional party in the counterclaim. See OCGA § 9-11-13 (a), (h); Conerly v. First Nat. Bank of Baldwin County, 209 Ga. App. 601, 603-604 (3) (434 SE2d 143) (1993); Martin & Jones Produce v. Lundy, 197 Ga. App. 38, 39 (2) (397 SE2d 461) (1990); White v. Fidelity Nat. Bank, 188 Ga. App. 539, 540-541 (1) (373 SE2d 640) (1988); Carvel Corp. v. Rabey, 140 Ga. App. 205 (230 SE2d 355) (1976).

However, the trial court had the discretion to deny joinder of Thomas Calk, a joint tortfeasor and/or an independent tortfeasor, as a party who “is required for the granting of complete relief in the determination of a counterclaim,” because such action against a non-party tortfeasor could be maintained separately and because a joint tortfeasor is not a party required for complete relief. OCGA § 9-11-13 (h); McCabe v. Lundell, 199 Ga. App. 639, 641 (2) (405 SE2d 693) (1991).

Having failed to assert the compulsory counterclaim in the prior action either in their answer or by properly amended answer with leave of the trial court, appellants lost such claim and are now forever barred from asserting such claim against Laura Calk as a matter of res judicata. Appellants should have litigated such interrelated issues when they had the opportunity so that there could be judicial finality between the parties and their privies. OCGA §§ 9-11-13 (a), (f); 9-12-40; 9-12-42; Best v. Ga. Power Co., 224 Ga. 669 (164 SE2d 125) (1968); Brittany Apts. v. Chapman, 141 Ga. App. 168 (233 SE2d 27) (1977); Kitchens v. Lowe, 139 Ga. App. 526, 527-529 (1) (228 SE2d 923) (1976); Harbin Lumber Co. v. Fowler, supra at 92-93; Myers v. United Svcs. Auto. Assn., supra at 361.

To determine whether or not res judicata bars a subsequent action, the appellate court must consider: “(a) whether there is a valid antecedent judgment; (b) whether there is identity of parties; (c) whether there is identity of issues; and (d) whether reasons of public policy militate against a strict application of [OCGA § 9-12-40] in this case.” Fierer v. Ashe, 147 Ga. App. 446, 448 (249 SE2d 270) (1978). While Thomas Calk was not a party to the prior action under a properly brought compulsory counterclaim, he could have been made an additional defendant in the counterclaim by court order upon motion by appellants. However, Thomas Calk was never made a party to the prior action, so that there was no adjudication on the merits in a prior proceeding regarding him. See OCGA §§ 9-11-13 (h); 9-11-19; 9-11-21.

OCGA § 9-12-42 provides that “[f]or a former judgment to be a bar to subsequent action, the merits of the case must have been adjudicated.” Appellants’ action against Laura Calk is barred by res judicata, because there was a unity of parties and issues controlled by a prior adjudication on the merits by a court of competent jurisdiction. Moate v. Moate, 265 Ga. 418, 419 (456 SE2d 502) (1995); Gilmer v. Porterfield, 233 Ga. 671, 674 (2) (212 SE2d 842) (1975). A prior judgment is conclusive between the same parties as to all matters put in issue or which could have been put in issue in the prior case. Transamerica Ins. Co. v. Thrift-Mart, 159 Ga. App. 874 (285 SE2d 566) (1981). A husband and wife are not privies for purpose of res judi-

Decided August 4, 1997

Reconsideration denied August 18, 1997

Walter Aycock, pro se.

Joan Aycock, pro se.

John L. Welsh II, for appellees.

cata. Russ Transp. v. Jones, 104 Ga. App. 612, 613-614 (122 SE2d 282) (1961); Blakewood v. Yellow Cab Co. of Savannah, 61 Ga. App. 149, hn. 4, 150-151 (6 SE2d 126) (1939). Joint tortfeasors are not privies unless such privity is reciprocal, so that an adjudication on the merits binds the non-party as well. Gilmer v. Porterfield, supra at 674; Walka Mountain Camp &c. v. Hartford Accident &c. Co., 222 Ga. 249, 251-252 (149 SE2d 365) (1966). Collateral estoppel or estoppel by judgment also requires the same identity of parties, so that such doctrines have no application to Thomas Calk, a non-party to the prior action. See Norris v. Atlanta & West Point R. Co., 254 Ga. 684, 686 (333 SE2d 835) (1985); Pinkard v. Morris, 215 Ga. App. 297 (450 SE2d 330) (1994).

Where the parties to the prior action are the same but the issues or claims differ, estoppel by judgment will bar the relitigation of the same facts with different claims, so that appellants cannot proceed against Laura Calk. Powell v. Powell, 200 Ga. 379 (37 SE2d 191) (1946); Sumner v. Sumner, 186 Ga. 390 (197 SE 833) (1938); Usher v. Johnson, 157 Ga. App. 420 (278 SE2d 70) (1981); Price v. Winn, 142 Ga. App. 790 (237 SE2d 409) (1977). Since Thomas Calk was not a party to the prior judgment, then estoppel by judgment does not apply to bar an action against him.

Therefore, the action against Laura Calk is barred under res judicata and collateral estoppel, and summary judgment is affirmed; the action against Thomas Calk, a non-party to the prior action, is not barred and the judgment is reversed.

Judgment affirmed in part and reversed in part.

Ruffin, J, and Senior Appellate Judge Harold R. Banke concur.


author: Blackburn, Judge.

text:
    A96A0210.
    DEPARTMENT OF TRANSPORTATION v. BRIDGES.
    (492 SE2d 12)
   Blackburn, Judge.

In Dept. of Transp. v. Bridges, 222 Ga. App. 19 (473 SE2d 765) (1996), we affirmed the trial court’s denial of the Department of Transportation’s motion for summary judgment. The Supreme Court granted certiorari and reversed our decision in Dept. of Transp. v. Bridges, 268 Ga. 258 (486 SE2d 593) (1997). Accordingly, our judgment in this case is vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Decided August 18, 1997.

Michael J. Bowers, Attorney General, George P. Shingler, Deputy Attorney General, Jeffrey J. Davis, Assistant Attorney General, Dwyer, White & Sapp, Anne W. Sapp, for appellant.

Moore, Ingram, Johnson & Steele, John H. Moore, Bentley, Bentley & Bentley, Fred D. Bentley, Jr., Maddox, Maddox & Maddox, Lynwood A. Maddox, Moore & Rogers, G. Phillip Beggs, Linda W. Brunt, for appellee.

Judgment reversed.

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


author: Judge Harold R. Banke.

text:
    A97A1083.
    PARRISH v. THE STATE.
    (491 SE2d 433)
   Judge Harold R. Banke.

Tovorick Parrish was convicted of criminal trespass and carrying a concealed weapon. In his sole enumeration, he challenges the sufficiency of the evidence on the firearms charge.

This case arose after Parrish and the victim, his girl friend and the mother of his child, had a fight. Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996) (evidence on appeal must be viewed in a light most favorable to the verdict). In responding to the ensuing domestic violence complaint, the arresting officer placed Parrish in the back seat of the patrol car and proceeded to Parrish’s car where he discovered a .22 caliber revolver protruding from under the driver’s seat. Held'.

The evidence is sufficient as a matter of law if, when viewed in the light most favorable to the verdict, a rational trier of fact could find all the essential elements of the crime. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). The pertinent elements of the offense of carrying a concealed weapon are knowingly having or carrying about one’s person, unless in an open manner and fully exposed to view, any firearm, except as permitted by law. OCGA § 16-11-126 (a). The Code permits the transportation of loaded firearms in private vehicles by persons not ineligible for a license under OCGA § 16-11-129,. if such firearms are “fully exposed” in an open manner or placed in the glove compartment of private vehicles. OCGA § 16-11-126 (d). This law’s purpose is to compel persons carrying such weapons to display them so that others, knowing they were armed and dangerous, could avoid them. Moody v. State, 184 Ga. App. 768, 769 (1) (362 SE2d 499) (1987).

Decided August 18, 1997.

Anthony T. Pete, Janet S. Willy, for appellant.

Harry N. Gordon, District Attorney, William W. Tanner, Assistant District Attorney, for appellee.

Here, the arresting officer testified that he saw the butt of a revolver sticking out from under the driver’s seat. It is well settled that “a gun slightly protruding from under the seat of a vehicle does not put others on notice and, therefore, is not ‘fully exposed’ within the statute governing such weapons.” Id. Accordingly, the evidence was sufficient.

Notwithstanding Parrish’s argument to the contrary, the State was not required to prove he owned the gun. OCGA § 16-11-126 (a). Furthermore, our cases make clear that the “having or carrying about one’s person” element was satisfied with proof that the defendant was driving with a weapon visibly protruding from under the driver’s seat. Moody, 184 Ga. App. at 769; see Simpson v. State, 213 Ga. App. 143, 145-146 (3) (444 SE2d 115) (1994).

Judgment affirmed.

Birdsong, P. J., and Eldridge, J, concur.


text:
    A97A1255.
    BLOMBERG et al. v. COX ENTERPRISES, INC. et al.
    (491 SE2d 430)
   Judge Harold R. Banke.

Ronald Blomberg and USA Career Marketing, Inc. (“USA Career”) instituted a defamation suit against Cox Enterprises, Inc., Shelley Emling, a newspaper reporter, and Robert Mead, a disillusioned former client of USA Career. Blomberg and USA Career appeal the summary judgment awarded the defendants.

Blomberg, a former major league baseball player, is senior vice president and chief operating officer of USA Career, a career marketing company. It is undisputed that the Office of Consumer Affairs (“OCA”) received numerous consumer complaints alleging that USA Career engaged in unfair or deceptive acts or practices. Based on consumer complaints, the Administrator of OCA notified USA Career that legal action was being contemplated. The Administrator alleged that USA Career violated OCGA § 10-1-393 (b) (3), (7), and (9) by falsely representing directly or indirectly that it had “contacts, leads and connections with employers and placement firms,” and could set up interviews. The Administrator further alleged that USA Career failed to furnish fully completed contracts at the time of contract execution in violation of OCGA § 10-1-393 (b) (13) (A). To avert legal action, USA Career consented to the terms and conditions of an Assurance of Voluntary Compliance (“AVC”) entered in Fulton Superior Court. Under the terms of the AVC, USA Career was obligated to desist from making certain specified representations to its clients, to provide restitution of approximately $39,000, and to pay a $1,000 fine to the State.

In two newspaper articles, Emling quoted portions of the settlement agreement, and she also quoted two statements of Mead, a disgruntled consumer, who stated that Blomberg “is a silver-tongued devil.” Prior to the instant action, Mead sued USA Career in magistrate court, eventually reaching an out-of-court settlement with USA Career. Blomberg and USA Career alleged that Mead’s remarks and the statements appearing in the two articles were defamatory.

In granting summary judgment, the trial court determined that none of the remarks was subject to a defamatory interpretation, that Blomberg and USA Career were public figures, and that the plaintiffs failed to satisfy their burden of showing falsity. The trial court found that Blomberg and USA Career “have not submitted a single affidavit setting forth facts to establish the falsity of any of the five statements, nor [did] they deny in any cognizable evidentiary fashion the truth of the alleged defamatory statements.” It further determined that the articles were protected by the fair reportage privilege and the neutral reportage privilege. Enumerating five errors, Blomberg and USA Career appeal. Held

1. On appeal, Blomberg and USA Career challenge only four of the five statements, two statements quoting Mead and two statements reporting the settlement agreement with OCA. To avert summary judgment, Blomberg and USA Career had to offer some evidence of falsity, one of the essential elements of their defamation claim. Cox Enterprises v. Thrasher, 264 Ga. 235, 237 (3) (442 SE2d 740) (1994). This they failed to do.

Blomberg and USA Career failed to show the falsity of the statements about the settlement with the State. “As long as facts are not misstated, distorted or arranged so as to convey a false and defamatory meaning, there is no liability for a somewhat less than complete report of the truth. . . .” Mathews v. Atlanta Newspapers, 116 Ga. App. 337, 340 (4) (157 SE2d 300) (1967). Perfect accuracy in reporting quasi-judicial proceedings is not required. Moreover, fair and accurate reporting is conditionally privileged. OCGA § 51-5-7 (4). Where a publication is substantially accurate, “ ‘ “and if the article is published by the newspaper in good faith and the same is substantially accurate, the newspaper has a complete defense.” [Cit.]’ [Cit.]” Morton v. Stewart, 153 Ga. App. 636, 641 (2) (b) (266 SE2d 230) (1980).

The disputed headline announced, “Career marketing firm to refund clients’ money. Customers: Company never delivered.” Emling wrote, “According to the agreement, the company failed to furnish a completed contract to consumers at the time of execution and claimed to have contacts or leads with employers and placement firms when it did not.” Blomberg and USA Career contend that the headline and statement are defamatory because they insinuate that USA Career agreed that it had engaged in misconduct when under the terms of the AVC, USA Career did not admit that it had violated the law.

However, when the article is viewed as a whole, it is substantially accurate. Emling reported that after the OCA sent a notice of contemplated legal action, OCA and USA Career engaged in negotiations for several months. The next two paragraphs reveal that despite the settlement, USA Career’s president denied any wrongdoing. The company’s attorney explained, “My clients have not admitted fault but have made a business decision in the interest of showing their good character and good standing within the business community.” Taken as a whole, the article clarifies that the settlement agreement was a compromise and that USA Career continued to maintain its innocence. Thus, the publication as a whole was substantially accurate. Morton, 153 Ga. App. at 641 (2) (b).

Nor did Blomberg and USA Career show the falsity of either of the two quotations from Mead. The article stated, “Firm strikes out with some job seekers; former ballplayer’s consulting business facing complaints.” Then quoting Mead: “[t]hey had said it was likely that I’d have a job in six months making ten percent more than I am now.” The first statement cannot be disputed in light of the uncontroverted evidence that several disgruntled clients initiated lawsuits against USA Career and several dozen others filed complaints with OCA. As to the quotation from Mead, to suggest that a career service company intended to achieve its goal of finding its client a better paying job within a reasonable amount of time cannot be construed as false, malicious and tending to injure USA Career’s reputation. OCGA § 51-5-1 (a). Nor would the statement expose USA Career to public hatred, contempt, or ridicule. See id.

Mead’s other remark, that he deemed Blomberg to be a “silver-tongued devil,” is an assertion that cannot be proved false. See Bergen v. Martindale-Hubbell, Inc., 176 Ga. App. 745, 747 (3) (337 SE2d 770) (1985) (where an assertion cannot be proved false, it cannot be held libelous). As a statement of wholly subjective opinion not capable of proof, it cannot support an action for defamation against Mead or Cox Enterprises for publishing it. Webster v. Wilkins, 217 Ga. App. 194, 196 (1) (456 SE2d 699) (1995).

Decided August 18, 1997.

Michael R. Hauptman, George E. Tanner, for appellants.

Dow, Lohnes & Albertson, Sean R. Smith, Peter C. Canfield, Jill M. Wood, for appellees.

Notwithstanding Blomberg and USA Career’s contention to the contrary, summary judgment relief is especially appropriate in defamation actions implicating the First Amendment, where the evidence shows that a complainant offered no evidence as to an essential element of his case. Williams v. Trust Co., 140 Ga. App. 49, 58 (230 SE2d 45) (1976). See Stange v. Cox Enterprises, 211 Ga. App. 731, 732 (1) (440 SE2d 503) (1994).

2. We decline to grant Mead’s motion for sanctions. Although we are not able to discern any reasonable ground upon which appellants might have anticipated the reversal of the trial court’s judgment, we cannot say that their appeal was totally frivolous. Compare Griswell v. Columbus Finance Co., 220 Ga. App. 803, 804 (2) (470 SE2d 256) (1996); Suchnick v. Southern Gen. Ins. Co., 196 Ga. App. 687, 688 (396 SE2d 609) (1990); see Court of Appeals Rule 15 (b).

Judgment affirmed.

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

       According to an addendum to the restitution list, USA Career was required to make cash payments to an additional 58 individuals. Several years earlier, USA Career had entered into another AVC with the OCA.


author: McMurray, Presiding Judge.

text:
    A97A1309.
    DAILEY v. THE STATE.
    (491 SE2d 639)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of violating the Georgia Controlled Substances Act (sale of clonazepam). This appeal followed the denial of defendant’s motion for new trial. Held:

Defendant challenges the sufficiency of the evidence in the sole enumeration of error, arguing that the State’s key witness — a police informant — is not worthy of belief. This argument is without merit.

“ ‘On appeal of criminal convictions, we do not weigh the evidence or determine the credibility of witnesses; these are jury functions. When the jury has considered the evidence and made its finding, then on appeal the evidence is construed in favor of the jury’s verdict. Gurlaskie v. State, 196 Ga. App. 794 (397 SE2d 66). On review of a verdict of guilty, we merely determine whether the evidence is sufficient from which a rational trier of fact could conclude beyond a reasonable doubt that appellant committed the offense[s] as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).’ Williams v. State, 202 Ga. App. 728 (1), 729 (415 SE2d 327).” Cornell v. State, 222 Ga. App. 476 (474 SE2d 634). In the case sub judice, Officer Michael Leonard of the Dalton Police Department gave a detailed account of a controlled drug buy he arranged at defendant’s residence. This testimony, the informant’s testimony regarding the manner in which defendant sold the informant a controlled substance during the controlled drug buy, and testimony confirming that this substance was actually a controlled substance under the Georgia Controlled Substances Act authorizes the jury’s finding that defendant is guilty, beyond a reasonable doubt, of the crime charged. Jackson v. Virginia, 443 U. S. 307, supra.

Decided August 18, 1997.

Bates, Kelehear, Starr & Cherof, Harlan M. Starr, for appellant.

Kermit N. McManus, District Attorney, Herbert M. Poston, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Beasley and Smith, JJ., concur.


text:
    A97A1593.
    LOWMAN v. ADVANCED DRAINAGE SYSTEMS, INC.
    (491 SE2d 427)
   Birdsong, Presiding Judge.

This case first visited this Court in 1993 and is here again after new trial following remand. See Advanced Drainage Systems v. Lowman, 210 Ga. App. 731 (437 SE2d 604).

Advanced Drainage Systems, Inc. (ADS) filed a suit on account against Lloyd Lowman. Lowman installed septic tanks made by ADS. Lowman contended that contrary to ADS’ assurances, ADS’ piping system was not suitable for use in the “fine sand” Georgia coastal plain area where Lowman installed ADS’ septic tanks. Between 1984 and 1988, Lowman installed 185 of ADS’ septic tanks; about 25 of those tanks failed, causing considerable unpleasant damage to those property owners and damaging Lowman’s reputation accordingly. Lowman thus filed a counterclaim against ADS. The trial court granted a directed verdict in favor of ADS on its suit on account, and a jury awarded Lowman $130,000 on his counterclaim.

ADS appealed, contending first that Lowman’s claim for damage to reputation was unsupported by evidence because there was no showing of the wanton or wilful misconduct necessary to support such a claim where no physical injury is involved. Id. at 732 (1), citing Hamilton v. Powell, Goldstein, Frazer &c., 167 Ga. App. 411, 415 (2) (306 SE2d 340). Lowman contended there was evidence of such wilful and wanton conduct because he gave evidence that ADS knew the pipe used would not work in Lowman’s area but nevertheless represented to Lowman that the system would work. We held that the evidence showed ADS had no knowledge contrary to its representations until a report was issued in 1987, and “[n]o evidence was presented that the misrepresentations upon which Lowman and others allegedly relied were made after 1987 when ADS had knowledge of the problems associated with the use of [this] pipe in areas where fine sand is found. Thus, the record does not support a finding of wanton and wilful conduct by ADS[, and] Lowman’s claim for damage to reputation should not have been presented to the jury. . . . ADS is entitled to a new trial.” Advanced Drainage Systems, supra at 733 (1).

For the same reason, viz., because “the record does not support Lowman’s claim that ADS knew its representation concerning [suitability of the pipe] was false at the time the alleged misrepresentations were made” (id. at 734-735 (2)), we held Lowman had no claim under the “economic loss” rule, which, unless there is personal injury, limits claims for defective products to contract warranty actions except in cases of “accident” by sudden and calamitous event or “misrepresentation” involving false information known to be relied on by the injured party. Id. at 734.

On remand of the case for new trial, Lowman sought to show, as additional evidence, that he did rely on false representations after the 1987 report, which report he had inadvertently learned of at the first trial. However, the trial court prohibited Lowman from introducing evidence of damages to reputation and denied his motion to amend his complaint to allege fraud. The case was heard by the court without a jury, based on the previous trial transcript, but permitting Lowman to make an offer of proof to support his claim for damages to his reputation. The trial court found in favor of ADS on its suit on account.

Lowman now appeals, contending that based on the new evidence offered on remand, he should have been allowed to assert a claim for damages to his reputation and a claim for fraud. Held:

The “law of the case” rule controls the issue in this appeal. The “law of the case” rule, though formally abolished, still applies to rulings by one of our appellate courts in a particular case; such rulings are binding in all subsequent proceedings in the same matter, including a second trial. McLean v. Continental Wingate Co., 222 Ga. App. 805, 806 (476 SE2d 83); Continental Corp. v. Dept. of Transp., 185 Ga. App. 792, 793 (366 SE2d 160). An exception to this rule exists where the evidentiary posture of the case changes after remand by the appellate court. See May v. Macioce, 200 Ga. App. 542, 544 (409 SE2d 45). The evidentiary posture may change when a new issue not previously addressed by an appellate court is properly raised, or when the original evidence is insufficient but is later supplemented. McLean, supra at 807; MOM Corp. v. Chattahoochee Bank, 203 Ga. App. 847 (418 SE2d 74).

The posture of the evidence has not changed in this case so as to permit appellant to relitigate issues already decided by this Court. The 1987 report which Lowman says he learned about at the first trial was in fact in possession of Lowman’s own witness on the stand. Lowman did not take any depositions or do any other discovery whereby he would have or should have learned of the existence of the 1987 study before the first trial. Even assuming this 1987 report was contrary to ADS’ material representations and was known to ADS when Lowman was relying on those representations, the fact remains that at the trial of the case when Lowman learned of the 1987 report, he was allowed due latitude of questioning this witness and any others about this 1987 study. He himself could have testified at the first trial, and he should have testified then that he relied on ADS’ contrary representations after 1987 when the report issued. The evidence which Lowman claims is “new” evidence or constitutes a postural change in evidence is not new at all but existed within Lowman’s knowledge at the first trial or was fully ascertainable by discovery and at that trial. If there were facts which he could summon to support his claims of reliance on ADS’ fraudulent misrepresentation after the 1987 report was issued, Lowman was required to discover them before or at trial and state them then. William Goldberg & Co. v. Cohen, 219 Ga. App. 628 (466 SE2d 872).

In general, “exceptions” to the law of the case rule, which are mentioned in McLean as allowing parties to bring up new evidence or new issues in avoidance of an unfavorable appellate decision in the same case, should be limited by and weighed against the duty imposed on each party to present his case in full at trial, so that neither party, after judgment, may bring in other evidence or theories of recovery which were ascertainable at the first trial, and so that neither party can relitigate issues which could have been and should have been fully litigated at the first trial. See Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 604-605 (203 SE2d 173), which states this duty; that case involved summary judgment proceedings but the requirement that each party “present his case in full” at the appointed time is equally if not more applicable to trial proceedings, which are supposed to be the final joining of the issues. See also Nationwide-Penncraft v. Royal Globe Ins. Co., 162 Ga. App. 555 (291 SE2d 760); and Usher v. Johnson, 157 Ga. App. 420 (278 SE2d 70). Our earlier decision in this case binds the parties as to all issues, theories and evidence which were raised, should have been raised, or were ascertainable at the earlier trial. Any other practice would result in constant relitigation of issues after the appellate court has ruled, and no judgment would be certain so long as new variations on theories or evidence can be imagined. See Fulton-DeKalb Hosp. Auth. v. Walker, 216 Ga. App. 786, 787 (1) (456 SE2d 97).

Decided August 18, 1997.

Gibson & Spivey, Douglas L. Gibson, for appellant.

Daniell S. Landers, for appellee.

As the proffered evidence was fully ascertainable to Lowman at or before the original trial of the case, it does not create the sort of postural change in the evidence which might allow him to relitigate issues decided in our earlier decision. The ruling of the trial court prohibiting Lowman from relitigating these issues upon such evidence was correct.

Judgment affirmed.

Ruffin and Eldridge, JJ., concur.


text:
    A97A1603.
    VAUGHN v. THE STATE.
    (491 SE2d 426)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with six counts of burglary, three counts of theft by taking, one count of fleeing to elude a police officer and one count of being a habitual felon in violation of OCGA § 17-10-7. Defendant elected to represent himself about a week and a half before trial and appeared, pro se, at the trial calendar. Before defendant’s case was called for trial, however, defendant decided to accept a plea bargain that had been negotiated by his court-appointed attorney several weeks earlier. In exchange for reduced sentences, defendant pleaded guilty to six counts of burglary, three counts of theft by taking and one count of fleeing to elude a police officer. Although defendant was acting pro se during these proceedings, his court-appointed attorney was in court waiting to assist defendant during the upcoming jury trial. This appeal followed the denial of defendant’s motion to withdraw his guilty pleas. Held:

Defendant contends he did not knowingly, freely and voluntarily enter the above guilty pleas, arguing that he was mentally incapacitated during the guilty plea hearing by “a forceful injection of an anti-psychotic drug at the hospital [emergency room over a day and a half before the guilty plea hearing and by] anti-psychotic drugs [he was given] at the jail on a regular basis.”

The guilty plea hearing transcript reveals that the trial court interrogated defendant in substantial conformity with the requirements of Uniform Superior Court Rules 33.2 (B), 33.7, 33.8, and 33.9 and that defendant knowingly, freely and voluntarily entered guilty pleas to the above offenses. See Logan v. State, 256 Ga. 664 (352 SE2d 567); State v. Germany, 245 Ga. 326 (265 SE2d 13), and Purvis v. Connell, 227 Ga. 764 (182 SE2d 892). Specifically, defendant affirmed at this hearing that he was not under the influence of alcohol, narcotics or drugs. This affirmation, however, was refuted at a hearing on defendant’s motion to withdraw his guilty pleas by evidence that defendant was under the influence of the anti-depressant drug “Zoloft” and the neuroleptic drug “Thorazine” on the day of the guilty plea hearing and that defendant had been given an injection of the neuroleptic drug “Haldol” over a day and a half before the guilty plea hearing. Under such circumstances, we must decide whether the trial court abused its discretion in finding that defendant’s mental condition did not prevent his pleas “from meeting the constitutional test.” Mock v. State, 218 Ga. App. 514, 516 (1) (462 SE2d 429).

Decided August 18, 1997.

Michael R. McCarthy, for appellant.

In the case sub judice, the State’s expert witness testified that the relatively small dose of “Haldol” administered to defendant about a day and a half before the guilty plea hearing (ten milligrams) would not normally affect a person’s mental capacity twenty-four hours after the dose was administered. This expert also testified that “Zoloft” has “real low side effects” and that “most people that take it can’t even tell they’re taking it.” The State’s expert explained that “Thorazine does have some sedation effects to it,” but that the dosage defendant was taking on the day of the guilty plea hearing should not have incapacitated defendant mentally. This expert concluded by explaining that “Thorazine” is a drug that is intended to improve — rather than impair — a mentally impaired person’s ability to think rationally. This evidence and proof that defendant was rational and coherent during the guilty plea hearing authorizes the trial court’s findings that defendant’s guilty pleas were knowingly, freely and voluntarily entered. “Whether to allow the withdrawal of a voluntary, intelligently entered guilty plea after the pronouncement of sentence remained within the sound legal discretion of the trial court. State v. Germany, 246 Ga. 455, 456 (1) (271 SE2d 851) (1980).” Paino v. State, 209 Ga. App. 87, 88 (432 SE2d 599). The trial court did not abuse its discretion in the case sub judice.

Judgment affirmed.

Beasley and Smith, JJ, concur.

Kermit N. McManus, District Attorney, Herbert M. Poston, Jr., Assistant District Attorney, for appellee.


text:
    A96A0269.
    McNATT et al. v. COLONIAL PACIFIC LEASING CORPORATION et al.
    (491 SE2d 434)
    Decided August 19, 1997.

      Rumsey & Ramsey, Austin L. Ramsey III, for appellants.

      Saveli & Williams, William E. Turnipseed, Lamberth, Bonapfel, Cifelli, Willson & Stokes, Carter L. Stout, Bodker, Ramsey & Andrews, Stephen C. Andrews, for appellees.
   Judge Harold R. Banke.

In Colonial Pacific Leasing Corp. v. McNatt, 268 Ga. 265 (486 SE2d 804) (1997), the decision of this Court in McNatt v. Colonial Pacific Leasing Corp., 221 Ga. App. 768 (472 SE2d 435) (1996) was affirmed in part and reversed in part. Accordingly, our original judgment in that case is vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Ruffin, J., concur.


author: Beasley, Judge.

text:
    A97A1561.
    In the Interest of P. N. L., a child.
    (491 SE2d 639)
   Beasley, Judge.

In an action filed by the Peach County Department of Family & Children Services (“DFACS”), the juvenile court terminated the parents’ rights to P. N. L. after it found clear and convincing evidence meeting the requirements of OCGA § 15-11-81 (a). The parents challenge the sufficiency of the evidence. “The question on appeal is whether, after reviewing the evidence in a light most favorable to the lower court’s judgments, ‘any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.’ . . . [Cit.]” In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997).

“Pursuant to OCGA § 15-11-81 (a), a juvenile court deciding whether to terminate a parent’s rights employs a two-prong test, first determining whether there is ‘clear and convincing evidence of parental misconduct or inability.’ ” R. N., supra. As in R. N., so here: “a finding of ‘parental misconduct or inability’ must rest on clear and convincing evidence showing: 1) that the child is deprived; 2) that the cause of the deprivation is a lack of proper parental care or control; 3) that the cause of the deprivation is likely to continue or will not likely be remedied; and 4) that the continued deprivation is likely to cause physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A). If the first prong of the test is met, the trial court then considers whether the termination of parental rights is in the child’s best interests.” Id.

P. N. L. was born in October 1992. Four months later, DFACS removed the child from his parents’ residence after social workers found him living in a structurally dangerous trailer with no heat source other than an unventilated (but empty) kerosene heater. The baby was “filthy, his ears . . . stopped up with what appeared to be ‘crud,’ dried milk and other matter[.] [T]he crevices of the baby’s skin were filthy, feces appeared on the baby’s scrotum, and the baby’s body had generally been neglected to such a point that the child smelled.” The mother denied any problems and was hostile toward DFACS workers. Following an award of temporary custody to DFACS, the court held a hearing on March 25, 1993, at which the parents appeared. The court found the facts recited above, in support of its order finding that P. N. L. was “deprived.” See OCGA § 15-11-2 (8).

The court also ordered the parents to comply with a reunification plan developed by DFACS, which among other things required the parents to pay child support, visit P. N. L. bi-weekly, and maintain adequate housing. His mother visited sporadically, but neither parent paid any child support. From 1993 to 1996, the court entered numerous orders requiring compliance with reunification plans, but the parents failed. As a result, DFACS petitioned in September for termination of parental rights. An evidentiary hearing followed in February.

The parents admitted they moved to Florida in August 1993 and had no contact with DFACS or their child for at least six months thereafter. DFACS caseworkers testified neither parent ever complied with any of the reunification plans. One social worker testified that after the parents moved to Florida, she spoke with the mother by telephone and encouraged her to visit P. N. L. or send her son letters or gifts. But the parents telephoned P. N. L. only one time in early 1996, maintained little or no contact with DFACS, and sent no gifts, letters, clothing or other support for their son.

The parents conceded they received copies of the case plan and knew of the child support requirements but paid no support and did not visit the child after moving to Florida. The mother testified she was “scared” to contact DFACS or send any child support because she was afraid DFACS had taken out a criminal “abandonment” warrant against her. The father admitted he failed to pay $5 per week child support despite having full-time employment since August 1993. At the time of the hearing, the father testified he “brought home” between $350 and $475 per week in wages. He blamed the failure to pay child support on the need to pay medical bills and establish credit. At one point, the parents were living in a beachside condominium that rented for $1,000 per month.

1. Despite the parents’ lame arguments that the evidence does not support the finding of “parental misconduct or inability” required by OCGA § 15-11-81 (a), it clearly supported each criterion set forth in OCGA § 15-11-81 (b) (4) (A).

(a) The unappealed finding of deprivation in the juvenile court’s order of March 25, 1993, established deprivation for purposes of the termination hearing. In the Interest of C. D. F., 222 Ga. App. 905, 907 (1) (476 SE2d 654) (1996). Even aside from this conclusive finding, evidence showing the terribly unsanitary conditions in which P. N. L. lived as an infant provided clear and convincing evidence he was “without proper parental care [and] control . . . necessary for his physical . . . health. . . .” OCGA § 15-11-2 (8) (A). See R. N., supra at 203-204.

(b) The court’s determination that this deprivation resulted from “lack of proper parental care or control” was also warranted by clear and convincing evidence. OCGA § 15-11-81 (b) (4) (A) (ii). Although P. N. L. remained in DFACS’ custody from the time he was three months old until the evidentiary hearing almost four years later, the court was justified in finding the factors listed in OCGA § 15-11-81 (b) (4) (C) (i), (ii), and (iii). Ample evidence showed that for over a year, without valid reason, neither parent (1) communicated with P. N. L. or made any bona fide effort to communicate with him in a “meaningful, supportive, parental manner”; (2) provided court-ordered child support for P. N. L.; or (3) complied with the court-ordered reunification plan. See In the Interest of A. S. M., 214 Ga. App. 668, 672-673 (2) (448 SE2d 703) (1994).

(c) This evidence also sufficed to support a finding that P. N. L.’s deprivation was likely to continue or likely would not be remedied. OCGA § 15-11-81 (b) (4) (A) (iii). “The fact that the [parents] made little or no effort to support or even contact [their child] in the [four] years since the deprivation hearing [of March 1993] demonstrates that such deprivation is likely to continue, as does [their] failure to implement the DF[A]CS plan or to discuss [their] inability to comply with it or seek its modification. [Cit.]” In the Interest of R. J. P., 222 Ga. App. 771, 772 (1) (476 SE2d 268) (1996).

(d) Clear and convincing evidence supports the court’s finding that further deprivation would likely cause P. N. L. “serious physical, mental, emotional, or moral harm.” OCGA § 15-11-81 (b) (4) (A) (iv). The child was removed from unsanitary physical conditions and surroundings when only three months old. His parents totally failed to take the steps necessary to reunite with their son. Although they were willing to páy $1,000 a month rent for a seaside condominium, they were not willing to pay even $5 a week in child support. Years of indifference to this child was solid ground for the court’s forecast that P. N. L. would experience harm from continued deprivation if returned to his parents. See In the Interest of W. J. G., 216 Ga. App. 168, 172 (4) (453 SE2d 768) (1995).

Decided August 19, 1997.

Jones & Oliver, Charles E. Jones, for appellant.

Thurhert E. Baker, Attorney General, Jeffrey L. Milsteen, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, W. Ashley Hawkins, for appellee.

2. Finally, the evidence satisfied the second prong of OCGA § 15-11-81 (a)’s test by showing termination to be in P. N. L.’s best interest. The same evidence showing parental misconduct or inability may, and here does, establish this requirement. See In the Interest of R. P., 216 Ga. App. 799, 801 (2) (456 SE2d 107) (1995). Additional evidence is DFACS workers’ testimony that P. N. L. had bonded with the foster family with whom he had lived since June 1994, had adjusted well to their home, and considered the foster parents to be “his mother and father ...[,] the only parents he has ever known.” See In the Interest of M. R., 213 Ga. App. 460, 465 (1) (b) (444 SE2d 866) (1994).

Termination of appellants’ rights as parents was not error, as it was the predictable legal consequence of their deliberate termination of any relationship with their son as a matter of fact.

Judgment affirmed.

McMurray, P. J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A97A1097.
    EAKIN v. MEIGHEN.
    (491 SE2d 402)
   Ruffin, Judge.

Michael Eakin appeals the trial court’s grant of summary judgment to Joseph Meighen, by which it ordered Eakin and two other defendants to pay Meighen $40,000 pursuant to two contracts. For reasons which follow, we find Eakin’s appeal has no merit, affirm the judgment, and sanction Eakin’s attorneys for filing this frivolous appeal.

It appears that Eakin was president of Truck Alignment Corporation of America (“TACA”), a business organized to purchase the truck alignment division of Goodyear Tire & Rubber Company. On March 27, 1992, Eakin and John Bojo (TACA’s chief financial officer), individually and on behalf of TACA, signed an agreement with “investor” Meighen. The document recited that Meighen “agrees to provide additional funding ... to TACA in the amount of $35,000. In accepting these funds, TACA, John Bojo and Mr. Eakin do hereby guarantee, both corporately and individually, jointly and severally, to repay Joseph Meighen $56,000 by .April 10, 1992.” The document went on to provide that these funds would be placed “in escrow . . . to be released only after ... [a bond is approved for the company and] TACA receives their [sic] $2,500,000 of financing. At no time will this $35,000 be at risk. If problems arise from any direction the $35,000 will be returned in full to Joseph Meighen by April 10,1992.” Another section of the agreement, bearing the subheading “Following Conditions,” states: “1) This $35,000 is being invested only on the fact that the $56,000 will be returned to Joseph F. Meighen no later than April 10, 1992. Even if TACA does not receive the new bond or $2,500,000 funding by April 10, 1992, the $35,000 must be returned. A penalty of $500 per day will be assessed each and every day this is not complied with. 2) At no time is this $35,000 at risk, nor will it be released for any reason before the $2,500,000 is received by TACA.” (Emphasis in original.)

Eakin and Bojo signed another agreement with Meighen on May 3, 1992. Similar to the first, this document provided that Meighen would supply TACA $5,000 in “additional funding.” TACA, Eakin, and Bojo agreed to repay Meighen $10,000 “immediately following the closing of TACA’s financing with [a named lender].” The document further provided, “[t]his $5,000 contracted herein will be added to the previous contracted funds and have the same first lien position on the TACA unencumbered escrow funds being held at Goodyear. TACA and Mike Eakin agree to release the Goodyear escrow funds by May 16, 1992 to repay Meighen his $5,000, if financing has not been secured. A penalty of $250 per day will accumulate each and every day after May 15, 1992 that the $5,000 is not returned. If the financing ... is not completed by April 30, 1992, TACA and Mike Eakin agree to release the escrow funds ... to pay Joseph F. Meighen the $35,000 of principle [sic] loaned on the 3-27-92 contract.” A “condition” included in this second contract provided: “The $5,000 is being invested on the basis that $10,000 will be paid to Meighen if TACA obtains financing. . . . Even if TACA does not receive financing the $5,000 must be returned by 5-15-92.”

TACA never acquired Goodyear’s truck alignment division and ceased doing business. Eakin testified by affidavit that TACA obtained over $366,000 in funding from outside sources. Meighen brought the present suit and, in his verified complaint, sought to recover the $40,000 “loaned” to TACA, Eakin, and Bojo, as well as the expected returns specified in the contract.

The trial court found these documents contained “unconditional obligations” that required TACA, Eakin, and Bojo to repay Meighen the principal amounts of $35,000 and $5,000. Ruling that the expected profit constituted “interest” on these obligations, the trial court found these amounts usurious and denied Meighen’s claim for prejudgment interest and attorney fees. Eakin appeals, claiming a jury question exists as to whether the $40,000 was “loaned” or “invested.”

In reviewing the grant of a motion for summary judgment, we review the record de novo under the standards set forth in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991) to determine whether the movant was entitled to judgment as a matter of law. Although genuine questions regarding material facts will prevent summary judgment, immaterial disputes of fact do not create a jury question. See Cambridge Mut. Fire Ins. Co. v. Okonkwo, 218 Ga. App. 59, 61 (1) (460 SE2d 302) (1995). Because it makes no difference in this case whether Meighen “invested” or “loaned” the $40,000, we find no issue of fact requiring resolution by a jury.

These agreements are terribly vague, rambling, and confusing, but review of the documents makes one thing clear: TACA, Eakin, and Bojo were absolutely obligated to repay at least Meighen’s principal “investment” whether or not the plan to purchase the tire alignment business was successful. In both documents, Eakin and the other defendants guaranteed Meighen that he would receive an incredible return on his investment and, at a minimum, would get back the $40,000. The trial court did not err by granting Meighen summary judgment for the principal amounts specified in the agreements. These unconditional promises, by any name, warranted the trial court’s result. See Petrey v. Brinsfield, 194 Ga. App. 863, 864 (2) (392 SE2d 51) (1990); Wiederhold v. Prime Builders, 186 Ga. App. 46 (1) (366 SE2d 383) (1988).

We also find Eakin’s arguments on appeal spurious and specious. He suggests that because Meighen was an “investor,” a jury question' exists as to whether he expected the return of his principal or assumed the risk of its loss. Considering the numerous guarantees, conditions, and promises Eakin made Meighen that his money would be returned, such an argument is patently meritless. Under the circumstances, Eakin’s attorneys could not reasonably have believed that this appeal would result in a reversal of the trial court’s decision. Therefore, we assess a $500 frivolous appeal penalty pursuant to Court of Appeals Rule 15 (b). On remittitur, the trial court shall enter judgment in favor of Meighen against Edwin L. Hamilton, William R. Youngblood and the law firm of Chambers, Mabry, McClelland & Brooks, LLP, in the amount of $500. See Revels v. Wimberly, 223 Ga. App. 407, 409 (3) (477 SE2d 672) (1996).

Decided August 7, 1997

Reconsideration denied August 20, 1997.

Chambers, Mabry, McClelland & Brooks, Edwin L. Hamilton, William R. Youngblood, for appellant.

Deming, Parker, Hoffman, Green & Campbell, Dan R. Gresham, for appellee.

Judgment affirmed with direction.

Birdsong, R J, and Senior Appellate Judge Harold R. Banke concur.