text:
    A94A2184.
    TOLEDO v. THE STATE.
    (455 SE2d 595)
   McMurray, Presiding Judge.

Defendant was tried before a jury on a multi-count indictment for sexually molesting his step-child and found guilty on five counts of committing separate acts of child molestation. This appeal followed. Held-.

1. Defendant “contends that OCGA § 24-3-16 is violative of the right to confrontation under the Federal Constitution [and the State Constitution]. The statute is not constitutionally deficient in the manners complained of. Sosebee v. State, 257 Ga. 298 (357 SE2d 562) (1987). As in Eberhardt v. State, 257 Ga. 420 (1) (359 SE2d 908) (1987) and Lawhorn v. State, 257 Ga. 780 (364 SE2d 559) (1988), the [victim in the case sub judice] testified in addition to there being testimony about [her] out-of-court statements. [Further, contrary to defendant’s contention, there is no indication that the victim was not available for further cross-examination after her initial testimony.] No ruling is made about [defendant’s] rights under the Georgia Constitution, such as Art. I, Sec. I, Par. XIV, inasmuch as it was not raised. Lee v. State, 177 Ga. App. 698 (340 SE2d 658) (1986).” Rayburn v. State, 194 Ga. App. 676 (2) (391 SE2d 780), cert. denied, 498 U. S. 969 (111 SC 434, 112 LE2d 417). See Frazier v. State, 195 Ga. App. 109, 112 (7) (393 SE2d 262).

2. Next, defendant contends the “trial court erred in allowing the jury to consider statements [he] made [while in police custody] which were not voluntarily made when considered in the totality of the circumstances.” Specifically, defendant asserts he was confused during the police interrogation because he “is Cuban [and] speaks with a heavy Hispanic accent, and it is obvious from his written statement and his testimony . . . that his grammar is far from perfect.” To this extent, defendant argues that the jury misunderstood his statement to an interrogating officer that a relative had just advised him (during a telephone conversation from police headquarters) “not to admit to anything or make any deals.” Defendant also argues that the following custodial statement was taken out of context and likewise subjected the jury to misunderstanding: “I am not guilty for what [the victim] has said. I don’t know why she said this. [The victim’s] report cards are getting worse and worse. We try to talk to her and she just goes into her room. Last night she was in the house with that boy, all kinds of ... I don’t know if she’s got problems all over the place. I don’t think I damaged [the victim] where she should put me in jail. She’s been damaged, but not by me.”

“ ‘Unless clearly erroneous, a trial court’s factual determinations relating to the credibility of witnesses and the admissibility of confessions will be upheld on appeal.’ (Cits.) (Dampier v. State, 245 Ga. 427, 430 (3) (265 SE2d 565) (1980)).” Sumpter v. State, 260 Ga. 683 (2) (b) (398 SE2d 12). In the case sub judice, Investigator Jerry Lungren of the Gwinnett County Police Department testified at a hearing pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908), that defendant clearly communicated via use of the English language during the entire interrogation process; that defendant responded affirmatively when the officer asked defendant before questioning if he could read and speak English and that defendant demonstrated his language skills both before and after questioning by audibly reading a form (written in English) containing the rights prescribed by Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) and by correcting a handwritten transcription of his custodial statement. Investigator Lungren further testified that defendant affirmed full understanding of his Miranda rights; that defendant waived these rights before questioning and that defendant was not threatened, promised any hope of benefit or otherwise coerced during the interrogation process. This evidence was sufficient to sustain a finding that defendant had full command of the English language during the interrogation procedure; that defendant understood the purpose and nature of the custodial interrogation and that defendant’s custodial statements were freely and voluntarily given. See Bonilla v. State, 204 Ga. App. 424, 426 (3) (419 SE2d 495). Moreover, the meaning, weight and credibility of defendant’s custodial statements were for the jury. See Smith v. State, 159 Ga. App. 468, 469 (284 SE2d 21).

3. Contrary to defendant’s third enumeration, the trial court did not abuse its discretion in admitting two photographs depicting the victim at her mother’s wedding to defendant. These photographs were taken four years before defendant’s trial (at a time when the victim was nine years of age) and reflect the victim’s immature physical development. The victim testified that defendant began sexually molesting her soon after her mother’s wedding to defendant. Under these circumstances, the photographs were relevant to show the victim’s immature physical development at the time defendant allegedly began molesting the victim. See Guess v. State, 264 Ga. 335, 336 (3) (443 SE2d 477).

4. In his fourth enumeration, defendant contends the “trial court erred in allowing testimony by the State’s witnesses which tended to indicate bad character, where [defendant] had not opened the door to such testimony.” Defendant cites three separate “assignments of error [in the argument supporting this enumeration] in violation of OCGA § 5-6-40. When, as here, [an] appellant asserts more than one error within a single enumeration, this court in its discretion may elect to review none, or one or more, of the errors asserted within the single enumeration. Wilson v. Southern R. Co., 208 Ga. App. 598, 606 (6) (431 SE2d 383); Robinson v. State, 200 Ga. App. 515, 518 (2) (408 SE2d 820); West v. Nodvin, 196 Ga. App. 825, 830 (4c) (397 SE2d 567).” Obiozor v. State, 213 Ga. App. 523, 527 (4) (445 SE2d 553).

Even though it does not appear any of the evidentiary rulings challenged in this enumeration provide a basis for new trial, we elect to review defendant’s first assertion that the trial court erred in allowing a witness to testify that defendant informed her “[t]hat if I did all this to [the victim] that they’re saying I did, ... I don’t remember it [because] I was either drunk or stoned at the time.” “We find no error in admitting this voluntary statement into evidence. Further, we find that if it placed [defendant’s] character in issue it did so only incidentally. Finally, the statement was not inadmissible as hearsay because it was at least implicitly an admission against interest.” Satterfield v. State, 256 Ga. 593, 599 (11), 600 (351 SE2d 625). To this extent, it provided proof of defendant’s consciousness of possible guilt. See Cable v. State, 191 Ga. App. 46, 47 (2) (380 SE2d 715).

5. Defendant contends in his fifth enumeration that “[t]he trial court erred in denying [his] Motions for Mistrial and in overruling [his] objections to the admission of improper testimony by several of the State’s witnesses.” Again, defendant violates OCGA § 5-6-40 by asserting three separate assignments of error in the argument supporting this enumeration. Nonetheless, we have examined all three contentions and find that “even if there was error it was nevertheless harmless, since the remaining evidence against [defendant] was overwhelming and it is highly probable that [the errors asserted in this enumeration] did not contribute to the judgment, Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976). See Hamilton v. State, 239 Ga. 72, 76 (235 SE2d 515) (1977); Richards v. State, 157 Ga. App. 601 (2) (278 SE2d 63) (1981).” Franklin v. State, 251 Ga. 77, 81 (303 SE2d 22).

6. Defendant complains the trial court erred in refusing to strike two prospective jurors for cause, arguing that he was forced to use two peremptory strikes to exclude these jurors. The first prospective juror indicated affirmatively when defense counsel asked, “is it possible . . . you may be bias or more sympathetic toward . . .” the alleged victim since she “is very near the age of your own children. . . .” The second prospective juror informed defense counsel that she “hated” a deceased uncle for sexually molesting her sister.

“ ‘ “ ‘In order to disqualify a juror for cause, it must be established that the juror’s opinion was so fixed and definite that it would not be changed by the evidence or the charge of the court upon the evidence. (Cit.)’ (Cit.)” Chancey v. State, 256 Ga. 415, 425 (349 SE2d 717). “ ‘The fact that a potential juror may have some doubt as to his impartiality, or complete freedom from all bias, does not demand, as a matter of law that the juror be excused for cause. (Cits.)’ (Cit.)” Scott v. State, 193 Ga. App. 577, 578 (2) (388 SE2d 416). “While a venireman may initially express doubt as to his or her ability to be impartial, this fact alone does not demand that the prospective juror be excused for cause. When the venireman indicates that he [or she] can render a fair and impartial verdict based solely upon the evidence presented at trial, he is prima facie competent to serve. (Cit.) The trial court has the discretion as to whether to strike a juror for cause. (Cits.) We find no abuse of the trial court’s discretion [in the case sub judice]. The [trial] court followed the provisions of OCGA § 15-12-164 for setting aside a juror for cause and found that the juror(s) in question could render a fair and impartial verdict.” Lattany v. State, 193 Ga. App. 438 (388 SE2d 23). Accord Ward v. State, 193 Ga. App. 137, 140 (8) (387 SE2d 150). We find no abuse of discretion here.’ Nobles v. State, 201 Ga. App. 483, 487 (7) (411 SE2d 294).” Greenway v. State, 207 Ga. App. 511, 513 (3) (428 SE2d 415).

7. Defendant contends the trial court’s charge on voluntary intoxication was prejudicial because he did not rely on intoxication as a defense. This contention is without merit as there was ample evidence to support a charge on voluntary intoxication. Robinson v. State, 258 Ga. 279, 281 (4) (368 SE2d 513).

8. In his final enumeration, defendant contends the “trial court erred in failing to charge on sexual assault and sexual battery as lesser included charges [to the olfenses of child molestation].” This enumeration presents nothing for review as defendant did not submit written requests to charge on either “sexual assault or sexual battery.” Cavender v. State, 208 Ga. App. 61, 63 (3), 64 (429 SE2d 711); Valdez-Hardin v. State, 201 Ga. App. 126 (410 SE2d 354).

Decided February 20, 1995

Reconsideration denied March 6, 1995

Robert L. Waller III, for appellant.

Daniel J. Porter, District Attorney, Tracy R. Aronovitz, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A94A2305.
    HASSAN v. THE STATE.
    (455 SE2d 314)
   Pope, Presiding Judge.

Defendant appeals his convictions of armed robbery and theft by receiving stolen property.

In his sole enumeration of error on appeal, defendant contends the trial court erred in allowing, over his hearsay objection, a police officer to testify that one of the victims identified defendant as a perpetrator of the crimes from a photographic line-up. Although defendant acknowledges that our Supreme Court has held that such testimony is not subject to a hearsay objection, see Haralson v. State, 234 Ga. 406 (216 SE2d 304) (1975), he points to two recent decisions by this court in which we criticized the Supreme Court’s ruling in Haralson, see Neal v. State, 211 Ga. App. 829, 830 (1) (b) (440 SE2d 717) (1994) and Wade v. State, 208 Ga. App. 700 (1) (431 SE2d 398) (1993), and urges further that Haralson has been implicitly overruled by more recent Supreme Court cases. However, in both Neal and Wade we noted that we were bound to follow Haralson and nothing in the other Supreme Court cases cited by defendant suggests to the contrary. Moreover, in both Neal and Wade the identifying witness was not present at trial and thus was not subject to cross-examination by the defendant, and much of our criticism of Haralson in those cases was directed toward allowing testimony under these circumstances. As we stated in Neal, “[i]t may be time for the Supreme Court to reconsider Haralson or at least limit its application to cases in which the identifying witness is available for cross-examination.” (Emphasis supplied.) Neal, 211 Ga. App. at 830. In this case, the witness who identified the defendant did testify at trial, and presumably could have been cross-examined by the defendant following the offleer’s testimony had the defendant so requested. Accordingly, we find defendant’s sole enumeration of error on appeal to be without merit.

Decided March 6, 1995

John O. Ellis, Jr., for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Desiree L. S. Peagler, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A94A2411.
    OMNI EXPRESS, INC. v. KENNEDY.
    (455 SE2d 83)
   McMurray, Presiding Judge.

Omni Express, Inc. (plaintiff) brought an action against Paul Russell Kennedy, Jr. (defendant), seeking to vacate an arbitration award resolving a dispute between the parties. The substantive portion of plaintiff’s complaint reads as follows: “This Complaint is to vacate a March 23, 1993 arbitration award to which Plaintiff and Defendant were parties. Plaintiff seeks vacation of the aforesaid arbitration award pursuant to O.C.G.A. § 9-9-13.”

Defendant denied that any factual basis exists for vacating the arbitration award and moved to dismiss plaintiff’s complaint, contending the petition fails to allege any fact supporting one of the grounds specified in OCGA § 9-9-13 (b) (1) through (4) for vacating an arbitration award. The trial court agreed, but did not dismiss plaintiff’s action. Instead, the trial court entered (in pertinent part) the following order: “Defendant’s Motion to Dismiss shall not be granted at this time. . . . Plaintiff must amend its application to vacate [the arbitration award] within thirty days of this Order so that the application sets forth with greater particularity the ground(s) upon which Plaintiff is seeking to vacate the arbitration award. If Plaintiff fails to comply with this Order, the Court shall grant Defendant’s Motion to Dismiss.”

Plaintiff did not comply with the trial court’s directive, waiting 35 days before filing an amended complaint specifying allegations for vacating the arbitration award. In response, defendant denied the material allegations of plaintiff’s amended complaint and counterclaimed for confirmation of the arbitration award pursuant to OCGA § 9-9-12. Defendant then filed a motion to strike plaintiff’s amended complaint, renewed his motion to dismiss and moved for summary judgment on his counterclaim.

The trial court, “pursuant to its previous order in this matter[, granted] Defendant’s motion to dismiss and motion to strike [plaintiff’s] first amended complaint.” The trial court also granted summary judgment in favor of defendant on his counterclaim for confirmation of the arbitration award. This appeal followed. Held'.

Decided March 6, 1995.

M. Glenn Howell, Sr., for appellant.

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

In his sole enumeration, plaintiff contends “[t]he trial court erred in imposing a time constraint on [the] right to amend its pleadings prior to the entry of a pretrial order and in dismissing [its] complaint.” This contention is without merit. OCGA § 9-11-41 (b) authorizes the trial court, upon motion, to dismiss any action for failure of the plaintiff to comply with an order of the court. Weeks v. Weeks, 243 Ga. 416 (254 SE2d 366).

Judgment affirmed.

Pope, P. J., and Smith, J., concur.


text:
    A94A2456.
    WRIGHT v. THE STATE.
    (455 SE2d 88)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of incest, rape and aggravated sodomy. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant first contends the trial court erred in admitting incriminating statements he uttered in the presence of a law enforcement officer after he refused the officer’s requests for defendant to execute a form indicating waiver of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694). This enumeration provides no grounds for reversal as any error in admission of these statements was not only cumulative of other admissible evidence, it is harmless because of overwhelming evidence of defendant’s guilt. McLendon v. State, 259 Ga. 778, 780 (4) (387 SE2d 133).

2. Defendant complains in enumerations 3 and 4 that the trial court erred in refusing to allow the testimony of two witnesses (defendant’s son and his brother) as to the victim’s motive for accusing defendant of committing the crimes charged. In his third enumeration, defendant contends the trial court “erred in refusing to admit into evidence testimony of defendant as to the diagnosis of his own illness.” These enumerations present nothing for review as defendant failed to proffer the testimony which was allegedly improperly excluded by the trial court. Harris v. State, 263 Ga. 526, 527 (1) (435 SE2d 669).

Decided March 6, 1995.

Ernest C. Tubbs, Jr., for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Melodie S. Bedford, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.


author: Smith, Judge.

text:
    A94A2687.
    JOHNSTON v. ADERHOLD.
    (455 SE2d 84)
   Smith, Judge.

James Johnston filed a pro se action against Thomas Aderhold. Johnston and Aderhold, along with Ron Jordan, had been shareholders in a failed corporation, Atlanta Sash & Door, Inc. (ASD). Johnston, an attorney, sought a declaration that an indemnity agreement he executed is void because of Aderhold’s alleged fraud and self-dealing as chief financial officer of the failed corporation. Johnston also sought damages resulting from Aderhold’s alleged fraud in connection with a promissory note Aderhold executed to pay off certain liabilities of the corporation. Aderhold moved the trial court to disqualify Johnston from representing himself, alleging that Johnston had previously represented Aderhold in defending similar allegations made by Jordan in a suit against the corporation. Aderhold alleged that in the course of that prior representation he revealed confidential information to Johnston, and that in representing himself in this action, Johnston breached the canons of professional ethics and the disciplinary rules of the State Bar. The trial court granted Aderhold’s motion to disqualify Johnston and certified the order for immediate review. We granted Johnston’s application for interlocutory appeal.

1. Johnston first contends the trial court erroneously disqualified him from representing himself because his right to do so is express and unequivocal under Art. I, Sec. I, Par. XII of the Ga. Const. of 1983. We agree.

Art. I, Sec. I, Par. XII of the Ga. Const, of 1983 provides: “No person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state.” This language is plain and unambiguous. Case law has also construed this provision as having been primarily intended to guarantee the right of self-representation. See Dobbins v. Dobbins, 234 Ga. 347 (216 SE2d 102) (1975).

The constitutional provision in issue formerly provided that no person shall be deprived of the right to prosecute or defend his own cause in any of the courts of this state “in person, by attorney, or both.” Ga. Const. of 1976, Art. I, Sec. I, Par. IX. We cannot agree with Aderhold’s argument that the omission of the phrase “or both” from the 1983 version means that either form of representation is sufficient to satisfy the constitution and that Johnston in this case must be represented by an attorney.

In Cherry v. Coast House, Ltd., 257 Ga. 403, 405-406 (3) (359 SE2d 904) (1987), the Supreme Court upheld an attorney’s right to represent himself at trial in the face of allegations of conflict of interest. Affirming the trial court’s disqualification of the attorney from representing another party, the Supreme. Court nevertheless reversed that portion of the trial court’s order disqualifying the attorney from representing himself, basing its holding on the Georgia constitutional provision guaranteeing the right of self-representation in our courts.

The attorney/party in Cherry was also represented by other counsel. The Supreme Court held that the attorney’s rights under the constitutional provision may be limited in order to preserve the trial court’s power to control the litigation: if the attorney/client and his counsel are unable to “speak with one voice” the trial court may appoint a single lead counsel. However, the right to self-representation does not “evaporate [even] when an attorney is hired.” Id. at 406 (3).

Here, there is less factual basis for disqualification than in Cherry. Johnston has not hired other counsel. Instead, he has chosen to stand on his constitutionally guaranteed right to appear pro se, and he should be permitted to do so.

It is true, as pointed out by Aderhold, that no right guaranteed by the Constitution is absolute. The rights of the individual “must be adjusted to the rights of others.” Durham v. State, 219 Ga. 830, 835-836 (136 SE2d 322) (1964). Nonetheless, we are aware of no right of Aderhold’s that would require “adjustment” of Johnston’s right to represent himself, nor do we perceive any harm to Aderhold that would be cured by forcing him to retain counsel in this case. If Johnston were to retain counsel, he presumably would disclose to counsel his knowledge of these matters in order that counsel be able to represent him properly. Moreover, disqualification would not prevent Johnston from testifying as a party to the alleged confidential matters. Aderhold’s concern that Johnston’s attempt to represent himself “would unfairly hinder [Aderhold’s] right to a fair trial” because he “would want to object to each attempt at disclosure of attorney/client confidences” could fairly be addressed by evidentiary rulings at trial.

2. We are unpersuaded as well that the Rules of the State Bar of Georgia should be applied to Johnston when he is acting not as an attorney but as a party to the litigation. The Rules provide that the State Bar is authorized “to maintain and enforce ... in rules . . . standards of conduct to be observed by [its] members . . . and those authorized to practice law in the State of Georgia and to punish the violation thereof.” State Bar Rule 4-101. The standards of conduct are set forth in Rule 4-102. Standard 69 provides, in pertinent part, that “[a] lawyer shall not represent a client whose interests are adverse to the interests of a former client of the lawyer in any matter substantially related to the matter in which the lawyer represented the former client unless he has obtained written consent of the former client after full disclosure.”

The conflict between this prohibition and Art. I, Sec. I, Par. XII of the Constitution under circumstances such as these, when a member of the bar is acting as a party to litigation, rather than as an attorney, has never been squarely addressed by our courts. It is not surprising, therefore, that none of the cases cited by Aderhold in support of his position is directly on point. We note that no question exists that an attorney may be disqualified from exercising the licensed privilege of representing others in a particular proceeding. Crawford W. Long Mem. Hosp. &c. v. Yerby, 258 Ga. 720, 722 (373 SE2d 749) (1988), cited by the trial court in support of its disqualification order, involved such a situation. This case presents a more difficult issue: whether a citizen of this state may be prevented from exercising his constitutionally guaranteed right to represent himself because he is also an attorney who has provided representation in the past to an opposing party. We conclude that, at least under the circumstances presented here, he may not.

Although we have found no Georgia cases on this precise issue, our research has revealed cases from other jurisdictions reversing orders disqualifying attorneys from representing themselves or from participating in varying degrees in the trial of actions in which they are parties, based on similar state constitutional or statutory authority. See, e.g., State v. Bates, 577 NE2d 347 (Ohio 1991) (reversing order requiring attorney/parties to retain counsel in reliance on previous Ohio decision, Svoboda v. City of Brunswick, 453 NE2d 648, 649-650 (Ohio 1983), which held that prohibition against practice of law by lay persons does not prevent lay persons from representing themselves); Ayres v. Canales, 790 SW2d 554 (Texas 1990) (reversing trial court’s order prohibiting attorney/party and his firm from verbally participating in trial concerning whether referral fee owed opposing attorney/party); Walker & Bailey v. We Try Harder, 506 NYS2d 163 (N.Y.A.D. 1986) (reversing trial court’s order disqualifying attorney/ parties from acting as trial counsel).

Common to several of these cases is the principle that although rules of professional conduct preclude attorneys from engaging in certain behavior considered unethical when they are exercising their privilege of representing others, such prohibitions do not necessarily apply when attorneys exercise their right, either statutory or constitutional, to represent themselves as parties to litigation. See, e.g., Ayres, supra; Walker & Bailey, supra at 164. We agree with that principle and find it applicable to the facts in this case. This is also in harmony with the established practice of our courts of weighing each case on its particular set of facts. “The rules of disqualification of an attorney will not be mechanically applied; rather, we should look to the facts peculiar to each case in balancing the need to ensure ethical conduct on the part of lawyers appearing before the court and other social interests, which include the litigant’s right to freely chosen counsel. [Cit.]” Stoddard v. Bd. of Tax Assessors, 173 Ga. App. 467, 468 (1) (326 SE2d 827) (1985).

Decided March 6, 1995

Morris, Manning & Martin, Warren W. Wills, Jr., for appellant.

Cofer, Beauchamp & Butler, Frank R. Seigel, for appellee.

Looking both to the plain meaning of the constitutional provision and the social interests involved here, we conclude that the trial court abused its discretion in disqualifying Johnston. The disqualification must be reversed.

Judgment reversed.

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

       This is contrary to the rule for non-attorneys. Because the risk is significantly higher that lay persons representing themselves will disrupt the proceedings, they do not have the right to be represented by counsel and also represent themselves. Seagraves v. State, 259 Ga. 36, 38-39 (376 SE2d 670) (1989).

       In fact, the State Bar of Texas has apparently recently adopted new Disciplinary Rules of Professional Conduct that exempt lawyers from the application of certain rules that would otherwise disqualify them from litigation if they are parties to the action and appear pro se. See Ayres, supra at 556.


text:
    A94A2757.
    JUNG v. CHEOUN et al.
    (455 SE2d 310)
   McMurray, Presiding Judge.

Hyo Nam Jung (“plaintiff”) brought an action against Byung Ho Cheoun and Mal Hae Cheoun (“defendants”) to rescind a contract the parties entered into on December 4, 1992, for the purchase and sale of a business known as Glenco Laundry & Cleaners (“the business” or “Glenco Laundry”). Plaintiff alleges he was duped into purchasing the business via a fraudulent misrepresentation by defendant Byung Ho Cheoun that Glenco Laundry had averaged monthly profits of $8,500. Defendants answered and admitted selling Glenco Laundry to plaintiff, but denied giving plaintiff any such information regarding the monthly profits of business. Defendants then counterclaimed for damages stemming from plaintiff’s alleged breach of contract. Defendants later moved for summary judgment, contending (in pertinent part) that any loss suffered by plaintiff was due to his own lack of diligence.

On December 4, 1992, plaintiff entered into an agreement with defendants for the purchase and sale of Glenco Laundry. The first meeting to discuss the transaction was arranged by Sung Tai (Phillip) Kang on November 14, 1992. Plaintiff then learned for the first time that the seller of the business was a long-time acquaintance, defendant Byung Ho Cheoun. Phillip Kang, the only other party in attendance at the meeting, “heard [defendant Byung Ho Cheoun tell plaintiff] Jung after few years experience, like him, he could earn about $8,000 something profit.” Kang also heard defendant Byung Ho Cheoun “encouraging [plaintiff] Jung to check out everything exactly and carefully. . . .” However, taking defendant Byung Ho Cheoun’s word for the value of the business, he agreed (without further inquiry) to purchase Glenco Laundry for $185,000 and (to this end) gave defendant Byung Ho Cheoun $10,000 as “earnest money.”

The next day, November 15, 1992, defendant Byung Ho Cheoun contacted plaintiff and expressed concern about plaintiff’s lack of business experience, offering to terminate the deal and “give [plaintiffs] $10,000 earnest money back.” Plaintiff declined and, on November 17, 1992, presented defendant Byung Ho Cheoun with an agreement for the purchase and sale of Glenco Laundry. Plaintiff and defendant Byung Ho Cheoun executed this agreement and plaintiff turned the matter over to an attorney to consummate the transaction.

On December 4, 1992, plaintiff met defendants at the attorney’s office and the parties executed a detailed purchase and sale agreement for Glenco Laundry. Specifically, plaintiff gave defendants a large sum of cash, executed a promissory note for the balance of the purchase price and assumed the lease covering the business premises. Defendants turned Glenco Laundry over to plaintiff.

On February 27, 1993, plaintiff gave Phillip Kang the keys to the business premises and abandoned Glenco Laundry, conveying an intent of return of the business to defendants. Plaintiff thereafter ceased making payments to defendants under the purchase money note and stopped paying monthly rentals under the lease for the business premises.

The trial court granted summary judgment in favor of defendants as to plaintiff’s claim for rescission of contract. This appeal followed a final judgment in favor of defendants on their counterclaim against plaintiff for breach of contract. Held:

Decided March 6, 1995.

David W. Graybeal, Jr., for appellant.

Plaintiff contends the trial court erred in granting summary judgment in favor of defendants, arguing that genuine issues of material fact remain on his claim of fraud. We do not agree.

To sustain an action for fraud in the inducement of contract, it must be shown “that one who relied upon the representations of another used the means available to him, in the exercise of diligence, to discover the truth. Cosby v. Asher, [74 Ga. App. 884, 887-888 (41 SE2d 793)]. One failing to inform himself, but having equal opportunity of learning the truth, must suffer the consequences of his neglect. Dortic v. Dugas, 55 Ga. 484, 496. Also, see Hunt v. Hardwick & Co., 68 Ga. 100, 104.” Blanchard v. West, 115 Ga. App. 814, 815 (2) (156 SE2d 164). “ ‘ “While questions of due diligence often must be resolved by the trier of fact, that is not always the case. One may fail to exercise due diligence as a matter of law.” (Cit.)’ Citizens Bank of Ball Ground v. Johnson, 191 Ga. App. 155, 158 (1) (381 SE2d 121) (1989).” Trust Co. Bank of Middle Ga., N. A. v. Stubbs, 203 Ga. App. 557, 560 (1) (417 SE2d 373).

In the case sub judice, there is some question (because of apparently conflicting statements between plaintiff’s deposition and affidavit) as to whether defendant Byung Ho Cheoun actually informed or otherwise duped plaintiff into believing that the monthly business profits of Glenco Laundry were around $8,000. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1), 30 (2) (343 SE2d 680). However, it is undisputed that plaintiff neither examined the financial records of Glenco Laundry nor asked to examine such records before purchasing the business. In fact, there is proof that plaintiff ignored defendant Byung Ho Cheoun’s recommendation to “check out everything exactly and carefully. ...” This evidence, undisputed evidence that no confidential relationship existed between the parties and the absence of proof that conditions existed preventing plaintiff from discovering a value of the business authorized the trial court’s finding that no genuine issues of material fact remain as to plaintiff’s claim of fraud. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). See also Charter Med. Mgmt. Co. v. Ware Manor, 159 Ga. App. 378, 382 (5), 384 (283 SE2d 330).

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

Perrie, Buker, Stagg & Jones, Cheryl V. Shaw, for appellees.

       Kang was not paid a commission, finder’s fee or any other compensation for bringing the parties together. He was simply a mutual friend of the parties.


text:
    A94A2792.
    TEEL et al. v. TRUST COMPANY BANK.
    (455 SE2d 312)
   Smith, Judge.

Trust Company Bank brought suit against Charles H. Teel and Michael Lee Carter seeking payment of the debts of G. Steven Best d/b/a Georgia Financial Group, which the bank alleged were guaranteed by Teel and Carter. Teel and Carter answered, denying that they guaranteed the debts of Best or that they were indebted to the bank. The answer further stated that the bank had been “fully compensated by [Teel and Carter] to the extent that they may have guaranteed certain portions of Steven Best’s debt to [it].” Cross-motions for summary judgment were filed, and the trial court granted that of the bank and denied those of Teel and Carter. Teel and Carter appeal from the order granting summary judgment to the bank.

The record shows that in uncontroverted affidavits submitted in opposition to the bank’s motion for summary judgment and in support of their own motion, Teel and Carter stated that on April 16, 1992, after regular business hours, they met at the bank with a bank officer and a representative of Georgia Financial Group, Inc. They agreed at that time to partially guarantee a $5,000 addition to an existing note executed by Georgia Financial Group, Inc. in favor of the bank. The bank officer’s secretary had left for the day, and the bank officer told Teel and Carter he would have the guaranty completed the next day according to the terms discussed that evening. The terms agreed to were that Teel would partially guarantee the additional loan up to the value of stock he owned, which had a value of approximately $1,000, and Carter would partially guarantee the $5,000 additional loan limited to the value of an automobile owned by him. Teel and Carter then signed the guaranty agreements in blank.

The guaranty agreements attached to the bank’s complaint, on the other hand, show that Teel and Carter unconditionally guaranteed the monetary obligations of Georgia Financial Group, Inc. up to $10,000. The note attached to the complaint was signed by Steven Best in his capacity as president of Georgia Financial Group, Inc. In the complaint, the bank alleged that Best was “in bankruptcy and uncollectible.” The complaint sought from Teel and Carter, jointly and severally, $9,213.19 principal plus interest at 12 percent, attorney fees and court costs.

Teel and Carter contend the trial court erred in granting the bank’s motion for summary judgment because material issues of fact remain regarding the terms of the guaranty contracts they executed. We agree and reverse.

As pointed out by the bank, it made out a prima facie right to judgment on the guaranty agreements by introducing documents properly authenticated by their custodian, which indicated Teel and Carter had executed unconditional guaranty agreements for $10,000. It also showed that although a corporation bearing the name Georgia Financial Group, Inc. existed, it was administratively dissolved on January 9, 1992, 11 months prior to the execution of the documents in issue, and had no apparent connection with the Georgia Financial Group apparently used by Best as a trade name. The burden then shifted to the defendants to establish their defense that they were not liable on the agreements they acknowledged signing, as alleged in their answer. See Dixie Diners Atlanta v. Gwinnett Fed. Bank, FSB, 211 Ga. App. 364, 366 (2) (439 SE2d 53) (1993).

Teel and Carter did this by filing affidavits in which they alleged they signed the agreements in blank and gave the bank officer authority to complete them according to terms to which they had agreed. Those terms differed materially from the terms appearing on the documents forming the subject matter of the lawsuit. They argue that under OCGA § 11-3-407 (1) (b), this constituted a material and fraudulent alteration, thereby discharging them under subsection (2) (a).

We need not address the issue created by the fact that in the guaranty agreements Teel and Carter guaranteed the debts of Georgia Financial Group, Inc., and not those of G. Steven Best d/b/a Georgia Financial Group; summary judgment was improper for a different reason. Contrary to the bank’s argument, having been executed ancillary to a note, the guaranty agreements in issue are negotiable instruments. Panasonic Indus. Co. v. Hall, 197 Ga. App. 860, 861, n. 1 (399 SE2d 733) (1990); Fidelity Nat. Bank v. Reid, 180 Ga. App. 428, 429 (1) (348 SE2d 913) (1986). They are therefore governed by the provisions of OCGA § 11-3-407. That statute provides that “[a]ny alteration of an instrument is material which changes the contract of any party thereto in any respect, including any such change in: . . . [a]n incomplete instrument, by completing it otherwise than as authorized.” OCGA § 11-3-407 (1) (b). OCGA § 11-3-407 (2) (a) provides that “[alteration by the holder which is both fraudulent and material discharges any party whose contract is thereby changed unless that party assents or is precluded from asserting the defense.” No question exists that if the alleged alteration was made, it was material. However, a question of fact remains as to whether the alteration was made. Moreover, even assuming it was made, as alleged by Teel and Carter, a question of fact remains whether it was also fraudulent.

The bank argues that Teel and Carter are precluded from asserting fraud because it is an affirmative defense and must be pleaded with particularity. It asserts that Teel and Carter waived this defense when their answers were filed and did not raise the defense of fraud. However, even assuming the bank is correct regarding the nature of the defense, the bank did not object in the trial court to the introduction of this issue, which was presented by the affidavits of Teel and Carter.

Decided March 6, 1995.

Michael A. Lewanski, for appellants.

Stokes, Lazarus & Carmichael, Marion B. Stokes, Richard J. Joseph, for appellee.

“Failure to plead an affirmative defense is immaterial if evidence of the defense is introduced and not objected to for failure to plead it, and no surprise is claimed. Under OCGA § 9-11-15 (b), when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Implied consent usually is found where one party raises an issue material to the other party’s case, or where evidence is introduced without objection.” (Citations and punctuation omitted.) Bowers v. Howell, 203 Ga. App. 636, 637 (417 SE2d 392) (1992). Having failed to object to the admission or consideration of the affidavits raising this issue in the trial court, the bank cannot now insist on appeal that Teel and Carter waived it and are precluded from raising the defense.

We also do not agree with the bank that the parol evidence rule bars evidence of this defense. It is well established that the rule prohibits oral representations to add to, take from, or vary a written contract only in the absence of fraud, accident, or mistake. See, e.g., Citizens &c. Trust Co. v. Johnson, 201 Ga. App. 464, 465 (411 SE2d 543) (1991). We therefore conclude that here, as in First American Bank v. Bishop, 239 Ga. 809 (239 SE2d 19) (1977) (where the same defense was raised on similar facts), issues remain for jury resolution that defeat the motions for summary judgment. The trial court erred in granting summary judgment to the bank. Id. at 810.

Judgment reversed.

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


text:
    A94A2801.
    AKRON PEST CONTROL et al. v. RADAR EXTERMINATING COMPANY, INC.
    (455 SE2d 601)
   Smith, Judge.

We granted appellants’ application for interlocutory review to address the question of whether an agreement “not to solicit, either directly or indirectly, any current or past customers” of appellee may possibly be construed as requiring appellants to turn away clearly unsolicited business.

The underlying facts are not in material dispute. In December 1990, appellant Donald Sellers redeemed his 3,300 shares of common stock in Active Pest Control, Inc., pursuant to a Stock Redemption Agreement. Nonparty Donald Lackey then became sole shareholder of Active, which has since merged into appellee Radar Exterminating Company, Inc. (“Radar”). As part of the transaction, Sellers also entered into a nondisclosure/nonsolicitation agreement in which he agreed “not to solicit, either directly or indirectly any current or past customers or current employees of Buyer, (or in the event of a merger, Radar Exterminating Company, Incorporated) whether as a proprietor, partner, joint venture, employer, agent, consultant, officer, or beneficial or record owner for the purpose of providing pest control services of the kind which Buyer provides as its business.” The restrictions were to last “for a period of two years from the closing date.”

Sellers soon thereafter established corporate appellant Akron Pest Control, Inc. (“Akron”). It is undisputed that Akron did business with former customers of Active (now Radar) within the two-year period covered by the nondisclosure/nonsolicitation agreement. All of the evidence presented shows, however, that Sellers in no way sought out the former Active customers who subsequently did business with him through Akron.

Radar brought suit against Sellers and Akron for breach of contract, tortious interference with contractual relations, and an alleged violation of the Uniform Deceptive Trade Practices Act. Sellers and Akron counterclaimed against Radar for sums due under two promissory notes executed by Active prior to its merger with Radar. Sellers and Akron moved for summary judgment on all counts of the complaint and counterclaim, which was denied. The trial court certified the order for immediate review, and Sellers and Akron petitioned this court seeking interlocutory review. The application was granted, and this appeal followed.

1. Sellers contends he in no way solicited former clients and the trial court erred in finding a jury question remaining on this issue. Radar does not dispute the state of the evidence presented on this issue, but instead takes the position that the nondisclosure language “could be understood by the parties to mean that Appellant Sellers would refuse and, in fact, turn away pest control business if contacted by any customers on Exhibit ‘B’ of the Verified Complaint and refuse to hire and, in fact, turn away employees of Active/Radar as of the date of the stock sale if they came to him looking for employment.” (Emphasis supplied.) We disagree.

“The cardinal rule in the construction of contracts is to ascertain the intention of the parties. The language which the parties have used will be looked to for the purpose of finding that intention, which when it is once ascertained will prevail over all other considerations, in determining the nature of the agreement. The question remaining is whether the language of the contract creates an ambiguity which may be explained by parol. A word or phrase is ambiguous when it is of uncertain meaning and may be fairly understood in more ways than one. Language which is unambiguous will not be construed as ambiguous based on extrinsic circumstances. Where the language of a contract is plain and unambiguous, no construction is required or permissible and the terms of the contract must be given an interpretation of ordinary significance. If the terms used are clear and unambiguous they are to be taken and understood in their plain, ordinary, and popular sense. Dictionaries supply the plain, ordinary and popular sense.” (Citations, punctuation, and emphasis omitted.) Race, Inc. v. Wade Leasing, 201 Ga. App. 340, 341 (1) (411 SE2d 56) (1991).

“Webster’s New Inti. Dictionary, 2d ed., defines ‘solicit’ as ‘to entreat, importune ... to endeavor to obtain by asking or pleading . . . to urge. . . .’” Mgmt. Compensation Group/Southeast v. United Security Employee Programs, 194 Ga. App. 99, 102 (2) (389 SE2d 525) (1989). The word has been otherwise defined as: “To appeal for something; to apply to for obtaining something; to ask earnestly; to ask for the purpose of receiving; to endeavor to obtain by asking or pleading; to entreat, implore, or importune; to make petition to; to plead for; to try to obtain; and though the word implies a serious request, it requires no particular degree of importunity, entreaty, imploration, or supplication. [Cit.] To awake or incite to action by acts or conduct intended to and calculated to incite the act of giving. [Cit.] The term implies personal petition and importunity addressed to a particular individual to do some particular thing.” Black’s Law Dictionary, p. 1392 (6th ed. 1990).

The phrase “not to solicit. . . indirectly,” though undisputedly a broad statement of the parties’ intent with respect to the activity in which Sellers agreed not to engage, is not ambiguous. See Citadel Corp. v. Sun Chemical Corp., 212 Ga. App. 875, 876 (2) (443 SE2d 489) (1994); Manderson & Assoc. v. Gore, 193 Ga. App. 723, 730 (5) (389 SE2d 251) (1989). For Sellers to violate the written nonsolicitation agreement at issue would require some affirmative action on his part that could be considered a solicitation in the broadest possible sense. Marcoin, Inc. v. Waldron, 244 Ga. 169, 171 (1) (259 SE2d 433) (1979). Radar informs us of no act by Sellers that could possibly be considered a solicitation. Merely accepting business that Sellers was forbidden otherwise to seek out for a period of time does not in any sense constitute a solicitation of that business. Id.

Sellers and Akron are entitled to summary judgment on the question of whether the nonsolicitation agreement could be violated by failing to turn away the business of former customers of Active. Therefore, except as to Count 4 of Radar’s complaint, the judgment is reversed.

2. It is well established that monetary relief is not authorized under the Uniform Deceptive Trade Practices Act, OCGA § 10-1-370 et seq. Magliaro v. Lewis, 203 Ga. App. 632, 634-635 (3) (417 SE2d 395) (1992); the Act authorizes only equitable relief. Id. The trial court therefore erred in failing to grant the motion for summary judgment of Sellers and Akron to the extent of Radar’s claim for damages under that Act.

However, this does not end the inquiry. The arguments of Sellers and Akron on this issue focus solely on whether the undisputed facts in this case make any relief under OCGA § 10-1-370 inappropriate as a matter of law; in effect, they seek a determination in this court that an injunction under the Act should not issue against them. That issue, however, is not before us.

This court is without jurisdiction to consider a claim sounding in equity unless the relief sought is merely incidental to an underlying legal question. Beauchamp v. Knight, 261 Ga. 608 (409 SE2d 208) (1991); Ga. Const. 1983, Art. VI, Sec. VI, Par. 111 (2). In this case, Sellers and Akron argue that by undisputed evidence, the Active and Akron logos have been shown not to be confusingly similar as a matter of law. That issue of similarity is clearly a “substantive issue of equity in this interlocutory appeal,” Beauchamp, supra at 609, and therefore a matter within the jurisdiction of the Supreme Court. This is illustrated by the fact that the eight cases discussed in the parties’ briefs on appeal are all Supreme Court decisions: Elite Personnel v. Elite Personnel Sucs., 259 Ga. 192 (378 SE2d 117) (1989); Diedrich v. Miller & Meier &c. Architects & Planners, 254 Ga. 734 (334 SE2d 308) (1985); Reis v. Ralls, 250 Ga. 721 (301 SE2d 40) (1983); Dolphin Homes Corp. v. Tocomc Dev. Corp., 223 Ga. 455 (156 SE2d 45) (1967); Fraser v. Singer, 211 Ga. 26 (83 SE2d 599) (1954); First Fed. Savings &c. Assn. v. First Finance &c. Corp., 207 Ga. 695, 697 (64 SE2d 58) (1951); Gano v. Gano, 203 Ga. 637 (47 SE2d 741) (1948); Seybold Baking Co. v. Derst Baking Co., 196 Ga. 391 (26 SE2d 536) (1943).

In their statement of jurisdiction required by OCGA § 5-6-37, Sellers and Akron affirmatively aver that this case “involves solely contract and tort claims and counterclaims seeking monetary relief.” All questions within their statement of jurisdiction have been answered, and we have reversed the trial court to the extent of any and all such claims for “monetary relief.” The case is therefore remanded for such further proceedings as may be necessary to resolve appellee’s remaining claim for equitable relief under the Deceptive Trade Practices Act.

Decided March 6, 1995.

Harman, Owen, Saunders & Sweeney, Timothy J. Sweeney, for appellants.

Decker & Hallman, Richard P. Decker, Peter V. Hasbrouck, for appellee.

Judgment reversed and remanded.

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


author: Beasley, Chief Judge.

text:
    A94A2467.
    AMERICAN STATES INSURANCE COMPANY v. ZIPPRO CONSTRUCTION COMPANY et al.
    (455 SE2d 133)
   Beasley, Chief Judge.

The insurer appeals from an adverse ruling on its complaint for declaratory judgment regarding coverage for alleged asbestos contamination of a residence. There is no coverage as a matter of law.

The material facts are not in controversy. In January 1992, Zip-pro Construction Company was employed as a subcontractor to remove, scrape, and sand portions of a kitchen floor at the Conley residence. This was a part of repair work following treatment for termite infestation by Alexander Termite & Pest Control Company, Inc. The Conleys sued the pest control company and William H. Zippro, alleging with regard to Zippro: the work was done improperly and not in a skillful and workmanlike manner, causing asbestos fibers in the kitchen flooring to become airborne and contaminate the home, thereby exposing the Conleys and those entering the home to unreasonable risk of personal injury; Zippro was grossly negligent in undertaking the work without determining whether the flooring contained asbestos and in failing to utilize ordinary and necessary precautions and procedures for the removal and handling of such dangerous substance; Zippro acted in a wilful and wanton manner, entitling them to punitive damages. The Conleys asked for the cost to test and remove the contamination from the property in an amount not less than $30,000, vindictive damages for injury to their peace and happiness, punitive damages, reasonable attorney fees, and costs.

Zippro was insured under a commercial liability policy with American States Insurance Company, effective from September 20, 1991 to September 20, 1992. Zippro made demand under the policy for American States to defend and indemnify Zippro on the Conley claim. The insurer denied coverage based on exclusions in the policy.

American States filed the instant action against Zippro, William H. Zippro individually, the pest control company, and the Conleys. The insurer sought summary judgment, as did the Conleys by cross-motion. It was denied to the insurer and granted to all defendants. The court concluded that American States had a duty to defend and indemnify its insured.

1. American States contends that no defendant was entitled to summary judgment because of seven different terms and conditions of the policy which would exclude coverage.

The policy covers “bodily injury,” “property damage,” “personal injury,” and “advertising injury.” There is no provision for coverage of punitive or vindictive damages.

As to any damage to body or property which the Conleys claim, subsection (f) of the policy, which the insurer terms an “absolute pollution exclusion,” bars coverage. As pertinent, it excludes coverage for

“(1) ‘Bodily injury’ or ‘property damage’ arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants: . . .

“(b) At or from any premises, site or location which is or was at any time used by or for any insured or others for the handling, storage, disposal, processing or treatment of waste;

“(c) Which are or were at any time transported, handled, stored, treated, disposed of, or processed as waste by or for any insured or any person or organization for whom you may be legally responsible; or

“(d) At .or from any premises, site or location on which any insured or any contractors or subcontractors working directly or indirectly on any insured’s behalf are performing operations; . . .

“(ii) if the operations are to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the effects of pollutants . . .

“(2) Any loss, cost, or expense arising out of any:

“(a) Request, demand or order that any insured or others test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the effect of pollutants; . . .

“Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.”

The applicable principles are as follows: “ ‘ “The words used in policies of insurance, as in all other contracts, bear their usual and common significance [cit.], and policies of insurance are, as all other contracts, to be construed in their ordinary meaning. (The parties’) rights are to be determined by (the policy’s) terms so far as they are lawful, and the language of the contract should be construed in its entirety, and should receive a reasonable construction and not be extended beyond what is fairly within its plain terms; and where the language fixing the extent of the liability of the insurer is unambiguous and but one reasonable construction is possible, the court must expound the contract as made.” ’ (Citations omitted.) [Cit.]” Hollis v. St. Paul Fire &c. Ins. Co., 203 Ga. App. 252, 253 (416 SE2d 827) (1992).

There is little question that asbestos constitutes a pollutant as unambiguously defined in the exclusion. See Perkins Hardwood Lumber Co. v. Bituminous Cas. Corp., 190 Ga. App. 231 (378 SE2d 407) (1989), which involves a similar pollution exclusion. It is a known respiratory “irritant” and a solid “contaminant.” In fact, the Conleys allege in their suit that the released asbestos fibers contaminated their home. Moreover, the asbestos from the flooring is also accurately characterized as “waste,” within the meaning of the policy and as the asbestos was treated here.

Accepting that the released asbestos is indeed a pollutant, provision (f) subparagraphs (1) (b) & (d) (ii) and (2) (a) bar coverage of any damage to body or property under the circumstances of this case. The fact that the release of asbestos might have been unintended or unanticipated as Zippro contends does not invoke coverage because there is no limitation in the exclusion based on intent or foreseeability. Compare the pollution exclusion clause examined in Claussen v. Aetna Cas. &c. Co., 259 Ga. 333 (380 SE2d 686) (1989). It contained an exception for pollution that was “sudden and accidental,” which the Supreme Court determined to mean “unexpected and unintended.”

Nor can coverage be created under a theory of estoppel, based on the Conleys’ assertion that an American States’ adjuster informed them in March 1992 that there was coverage under the policy and that the insured was negligent. “ ‘The doctrines of implied waiver and of estoppel, based upon the conduct or action of the insurer, or its agent, are not available to bring within the coverage of a policy risks not covered by its terms, or risks expressly excluded therefrom. (Cits.)’ (Cit.)” Lumber Transport v. Intl. Indem. Co., 203 Ga. App. 588, 590 (2) (c) (417 SE2d 365) (1992).

2. It is unnecessary to address the remaining policy terms, which the insurer asserts also block coverage of the Conleys’ claim, and the contention that the Conleys were not entitled to the grant of summary judgment because they are not named insureds under the policy.

Decided February 23, 1995

Reconsideration denied March 7, 1995

Charles M. Goetz, Jr., Scott M. Zahler, for appellant.

Macklyn A. Smith, Sr., for appellees.

Judgment reversed.

Andrews and Johnson, JJ., concur.

       In the summary judgment order, the trial court also lifted a stay of proceedings in the Conleys’ suit.


author: Ruffin, Judge.

text:
    A94A1974.
    SALLIE v. THE STATE.
    (455 SE2d 315)
   Ruffin, Judge.

William Sallie was convicted in Bacon County for murder, burglary, aggravated assault, and two counts of kidnapping with bodily injury. The charges arose from a spree in which Sallie murdered his former father-in-law, shot his former mother-in-law after handcuffing her to her grandson, and kidnapped his ex-wife and former sister-in-law, taking them from Bacon County to Liberty County, where he repeatedly raped and sodomized the ex-wife and repeatedly raped his former sister-in-law. The State now seeks to prosecute Sallie in Liberty County for two counts of false imprisonment arising out of the same set of facts. Sallie filed this interlocutory appeal from the trial court’s order denying his plea of former jeopardy.

Sallie contends the trial court erred in denying his plea of former jeopardy as to the two counts of false imprisonment because those charges constitute lesser-included offenses of kidnapping with bodily injury of which he has already been convicted in Bacon County. Sallie argues that under the “required evidence test,” false imprisonment is a lesser included offense of kidnapping with bodily injury as a matter of law. We agree.

“ ‘Under OCGA §§ 16-1-6 and 16-1-7, a defendant may be prosecuted for two crimes based on the same conduct, but he may not be convicted of more than one crime if one crime is included in the other.’ [Cit.]” Padgett v. State, 205 Ga. App. 576, 578 (2) (423 SE2d 411) (1992). “Under the required evidence test, a lesser crime is included in the crime charged if all of the elements which are required by law to establish the lesser crime also must be established in order to prove the greater crime.” State v. Burgess, 263 Ga. 143, 145 (1) (429 SE2d 252) (1993).

Decided March 7, 1995.

John E. Pirkle, M. Seth Rosenthal, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Assistant District Attorney, for appellee.

In this case, all the elements which are required by law to establish the lesser crime of false imprisonment, have been established in order to convict Sallie of kidnapping. “A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.” OCGA § 16-5-40 (a). “A person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.” OCGA § 16-5-41 (a). “The only difference between the two offenses is asportation, since false imprisonment involves holding a person unlawfully against his will, which is also an essential element of the offense of kidnapping.” Ellis v. State, 181 Ga. App. 630, 634 (5) (353 SE2d 822) (1987).

While in certain factual scenarios false imprisonment is not always a lesser included offense of kidnapping, see, e.g., Johnson v. State, 195 Ga. App. 723 (2) (394 SE2d 586) (1990), we do not agree with the State that the kidnapping in this case ended when Sallie crossed the line into Liberty County, at which point he committed the separate and distinct offense of false imprisonment. When Sallie crossed the line into Liberty County, it was only a continuation of the asportation and detention required for his conviction of kidnapping with bodily injury. Under these circumstances, because Sallie has already been convicted of kidnapping with bodily injury, the trial court erred in denying his plea of former jeopardy.

Judgment reversed.

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

       This rendition of facts was taken from State v. Sallie, 206 Ga. App. 732 (427 SE2d 11) (1992), in which we affirmed the trial court’s order granting Sallie’s plea of former jeopardy as to Liberty County’s subsequent attempt to prosecute him for rape and sodomy.


text:
    A94A2250.
    DECOUDREAUX et al. v. MUTUAL FEDERAL SAVINGS & LOAN ASSOCIATION OF ATLANTA, INC.
    (455 SE2d 88)
   Ruffin, Judge.

Victor and Carol Decoudreaux (“the Decoudreauxs”), entered into a construction loan agreement with appellee, Mutual Federal Savings & Loan Association of Atlanta, Inc. (“Mutual”) for the construction of their new home. After numerous problems with the construction of the home, the Decoudreauxs sued the contractor and Mutual, attempting, inter alia, to rescind the agreement or have Mutual pay to repair certain defects in the house. Section 2 of the agreement between the Decoudreauxs and Mutual provides “[t]hat [Mutual] is authorized to disburse funds under its control in said construction loan account, together with the net proceeds of the loan, only in proportion to its inspector’s report of progress or by Architect’s or Superintendent’s Certificate accompanied by a proper affidavit from the contractor.” The Decoudreauxs alleged that Mutual breached this agreement by disbursing funds to the contractor despite its knowledge of problems with the construction and breached its fiduciary duty by failing to monitor the quality of the construction. Mutual moved for summary judgment, and the Decoudreauxs appeal from the grant of that motion.

1. The Decoudreauxs contend that genuine issues of material fact remain as to whether Mutual’s activities in connection with the project extended beyond that of a conventional lender, thereby imposing upon Mutual fiduciary as well as common law duties flowing from the loan agreement to insure that the contractor’s work was performed in a “workmanlike manner” prior to disbursing any construction funds and to monitor the construction. We disagree. There is no evidence from the agreement or elsewhere that Mutual ever undertook the duty to guarantee the quality of the work prior to disbursing funds. Moreover, the record shows that pursuant to the agreement, the Decoudreauxs signed at least a dozen affidavits which stated that they were “to induce Mutual ... to advance” funds for the construction. The Decoudreauxs continued to do so even after learning of numerous concerns about the construction in letters from Mutual’s inspector, Steve Dukes.

The Decoudreauxs argue that Mutual nonetheless owed a duty to protect them and to monitor the quality of the work prior to disbursing funds. In Harden v. Akridge, 193 Ga. App. 736 (389 SE2d 6) (1989), where similar allegations of fiduciary and other duties were made against the lender, we held that “[o]rdinarily, an action for damages for faulty construction and incidents thereto, by a homeowner or purchaser against a lending or financing authority, will not lie because the lender’s customary participation, the inspection, is normally not made for the benefit of the homeowner, but is made instead for the protection and benefit of the lender. [Cit.] An exception . . . has been recognized when the lender’s financing activity extends beyond that of a conventional construction lender. . . .” Id. at 736.

“If any exception to this rule is made, it will have to be based on some clear promise of the lender to perform certain protective functions, and upon a clear and distinct participation in the activity which resulted in the damage. It is certainly not enough to make general allegations that the lender inspected the work, since such inspections are presumed to be for its own financial purposes and are not intended to ensure a quality of work. The lender is not an insurer of the work of the contractor, unless clear promises appear to the contrary.” Id. at 737 (citing Butts v. Atlanta Fed. Savings &c. Assn., 152 Ga. App. 40, 42 (262 SE2d 230) (1979)).

We found such an exception and reversed a summary judgment entered in favor of the lender in Jordan v. Atlanta Neighborhood Housing Svcs., 171 Ga. App. 467 (320 SE2d 215) (1984). There the evidence showed the lender had prepared the documents and listed the improvements to be made to the house, solicited the bids from the contractor, knew the homeowner was looking to it to assure proper performance of the work, and assured the homeowner that the contractor’s deficiencies would be corrected once payment was made. Id. at 468-469.

The Decoudreauxs allege that inspections of the project by Dukes and two of Mutual’s mortgage lenders, Roy Johnson and Joseph Wood, and correspondence about various problems concerning the construction among these individuals constituted activity beyond that of a conventional lender warranting such an exception. However, there is no evidence showing these activities to be anything but commensurate with those of a conventional construction lender. Although Mutual had, for its own protection, inspected the work pursuant to the disbursement of moneys, there is no evidence that it agreed to guarantee the quality of the work or otherwise inspect the construction prior to disbursing funds to the builder. Nor is there any evidence that Mutual promised to perform protective functions or that it distinctly participated in the faulty construction. Harden, supra. Mrs. Decoudreaux testified she and her husband understood that Dukes was the inspector for Mutual and was responsible for advising Mutual on whether to disburse funds. She also testified that no representation was made that Mutual had any responsibilities to them other than those contained in the loan agreement. The agreement specifically provided that Mutual “assumes no responsibility for the completion of the building, according to the plans and specifications and for the contract price.” Roy Johnson testified that the Decoudreauxs and their contractor would agree to changes in the plans “and as long as they were satisfied with what was happening we would be satisfied and the reason for that is that. . . our basic duty is to make certain that things are done [according to the agreement] but we don’t necessarily pass judgment on quality.” See Butts, supra at 43 (noting that quality control is not the main purpose of the lender’s inspection). Unlike the activities of the lender in Jordan, supra, the facts in the instant case do not warrant an exception to the general rule that a lender is not liable for faulty construction. This is particularly true given the evidence that the Decoudreauxs continued to sign the disbursement affidavits despite their knowledge of problems with the construction.

Decided March 7, 1995.

Herman Pierre, Jr., for appellants.

Thomas, Kennedy, Sampson & Patterson, Myra H. Dixon, for appellee.

“ ‘While issues of negligence and agency are ordinarily for the trier of fact, the question of duty is for the court, [cit.] and if the court finds no duty was owed, no material question of fact remains for determination by the jury. [Cit.]’” Peterson v. First Clayton Bank &c. Co., 214 Ga. App. 94, 100 (1) (b) (447 SE2d 63) (1994). Since we have found Mutual owed no duty to inspect the project on behalf of the Decoudreauxs or to guarantee that the work was of a particular quality prior to making disbursements, we hold the trial court did not err in granting Mutual’s motion for summary judgment.

2. The Decoudreauxs also contend that the trial court erred in having oral argument of the summary judgment motion without a request to do so and in failing to include findings of fact and conclusions of law in its order. However, they cite neither authority nor argument for either of these enumerations, and they are therefore deemed abandoned pursuant to Court of Appeals Rule 27 (c) (2).

Judgment affirmed.

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


author: Johnson, Judge.

text:
    A94A2311.
    WELLS v. SMITH.
    (455 SE2d 321)
   Johnson, Judge.

Henry David Wells filed this negligence action against W. M. Smith, the clerk of Atkinson County Superior Court, after a wrongful death suit Wells filed in that court was dismissed for his failure to appear at trial. Sometime prior to March 2, 1993, Smith had been instructed by the judge to whom the case was assigned to send a notice to Wells and other litigants that trial was set for March 16, 1993. Smith assigned the duty to his deputy clerk, Anne Gaskins. On March 2, 1993, Gaskins placed a copy of the March 16, 1993 trial calendar in an envelope addressed to “H. D. Wells, P. O. Box 310, V. C. I., Valdosta, GA. 31601.” The notice was received by the Valdosta Correctional Institution but was never delivered to Wells. When Wells failed to appear at trial, his case was dismissed. According to an uncontroverted affidavit submitted by Smith, the unopened notice was received by the clerk’s office on March 29, 1993, stamped “Return to sender, Refused by Valdosta C. I.,” and marked “Need I. D. Number, Need Full name.” At that time the court was notified and the envelope containing the notice filed with the record. Wells subsequently filed this action against the court clerk, alleging Smith breached his duty to notify him of the trial date. The trial court granted Smith’s motion for summary judgment and Wells appeals.

Wells contends the trial court erred in granting summary judgment to Smith because Smith breached his duty to notify the court as soon as he learned the notice was not delivered to Wells, Smith breached his duty to properly address the envelope containing the trial notice, and the trial court failed to determine where the notice was between March 4, 1993, and March 29, 1993.

Wells cites no authority for the arguments that Smith owed Wells a duty either to immediately notify the trial judge that the notice was not received or to include more information on the envelope containing the notice. The Code sections referred to in Wells’ brief do not impose either duty upon the court clerk. Likewise, our research has failed to uncover such duties owed to a plaintiff by the court clerk. See generally OCGA § 15-6-50 et seq. Nonetheless, even assuming Smith owed Wells a duty to correctly address the notice and a duty to inform the court immediately upon receiving notice that it was not delivered, there is no evidence that either duty was breached. By way of affidavit, Smith swore that his office received the returned mail on March 29, 1993, and that the judge was so informed upon its receipt. The record before us contains no affidavit or deposition on behalf of Wells to rebut Smith’s and Gaskins’ statements that the clerk’s office received the notice on March 29, 1993.

The same is true regarding Wells’ argument that Smith breached a duty to correctly address the envelope. Wells’ correct last name and first and middle initials were on the envelope, though the first and middle names were not spelled out. Wells has not shown that Smith’s duty to him, if any, included spelling out his first and middle names rather than using initials or that Smith’s duty included placing an inmate identification number on the envelope. The envelope did arrive at the correct address. That the officials at the correctional facility refused to deliver it to Wells while he was detained there should not render the clerk who addressed the envelope liable to Wells. “While it is true that issues of negligence, diligence, and ordinary care are usually for resolution by a jury rather than for summary judgment, in ‘plain and palpable’ cases summary adjudication is entirely proper.” (Citation omitted.) Weldon v. Del Taco Corp., 194 Ga. App. 174 (390 SE2d 87) (1990). In this case, it is undisputed that the envelope was addressed to and arrived at the correct facility and that it bore Wells’ last name and first and middle initials on it. The evidence that Smith did not receive the returned notice prior to March 29, 1993, is also uncontroverted by evidence of record. Inasmuch as there is no evidence that the notice was in the clerk’s office before that date, the question of where the notice was is immaterial. “Once the party moving for summary judgment has made a prima facie showing that it is entitled to judgment as a matter of law, the burden shifts to the non-movant, who must then come forward with rebuttal evidence sufficient to show the existence of a genuine issue of material fact.” (Citations omitted.) Id. Wells has not met this burden.

Decided March 7, 1995.

Henry D. Wells, pro se.

Whelchel, Brown, Readdick & Bumgartner, Terry L. Readdick, Richard K. Strickland, for appellee.

Judgment affirmed.

Beasley, C. J., and Andrews, J., concur.

       Wells filed the wrongful death suit after his motion to intervene in his biological son’s wrongful death suit was denied because of his failure to legitimate, visit or support the child. (Superior Court of Atkinson County, Civil Action No. 91-C-23.) This Court denied Wells’ application for interlocutory appeal of that order. (Wells v. Butler, Application No. A92I0271, decided 7/17/92.)


text:
    A94A2648.
    DEPARTMENT OF CORRECTIONS v. ROBINSON.
    (455 SE2d 323)
   Pope, Presiding Judge.

After Williams filed complaints with the Georgia Office of Fair Employment Practices (“OFEP”), a special master found that the Georgia Department of Corrections (“DOC”) unlawfully discriminated against Williams in the selection of correctional officers at two of its institutions. The special master awarded Williams back pay, but denied her request for attorney fees. Williams appealed pursuant to OCGA § 45-19-39, and the superior court reversed the special master’s denial of attorney fees and remanded the case to the special master for a determination of the amount of attorney fees. (This order of the superior court is referred to herein as the “8-1-91 Order.”) The 8-1-91 Order was not appealed. On remand the special master awarded Williams $50,508.49 in attorney fees, and DOC appealed to the superior court. However, the superior court refused to rule on the merits of the appeal, holding that the attorney fees issue was res judicata based on the unappealed 8-1-91 Order. We granted DOC’s application for discretionary appeal and now reverse.

Decided March 7, 1995.

Michael J. Bowers, Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Terry L. Long, Assistant Attorney General, for appellant.

1. A superior court order remanding a case back to an administrative tribunal is not an appealable final judgment, State Health &c. Bd. v. Piedmont Hosp., 173 Ga. App. 450 (326 SE2d 814) (1985), and thus is not binding for res judicata purposes. See Costanzo v. Jones, 200 Ga. App. 806 (2) (b) (409 SE2d 686) (1991); Lexington Developers v. O’Neal Constr. Co., 143 Ga. App. 440 (238 SE2d 770) (1977). As noted above, the superior court’s 8-1-91 Order remanded this case back to the OFEP special master, and thus could not be an appealable final order. Nonetheless, Robinson suggests we are bound to treat the 8-1-91 Order as an appealable final judgment based on language in Robinson v. Dept. of Corrections, 211 Ga. App. 134, 135 (438 SE2d 190) (1993) (“Robinson I”), a previous appeal in this case which referred to the 8-1-91 Order as a final judgment. This language was not pertinent to the issue addressed in Robinson I, and to the extent it suggested the 8-1-91 Order was final with respect to the remanded question of attorney fees for work before the special master, it was incorrect dicta and cannot be relied on to deprive DOC of its right to appeal. It follows that the superior court erred in concluding that a review of the attorney fees award on the merits was barred by res judicata. See also Johnson v. G. A. B. Business Svcs., 170 Ga. App. 686, 687 (2) (318 SE2d 78) (1984) (where the amount of attorney fees had not been determined at the time of an earlier appeal, the doctrine of res judicata does not bar a subsequent appeal challenging the propriety of the award of attorney fees).

Accordingly, the superior court should have addressed the merits of DOC’s appeal and we remand to allow that court to consider DOC’s arguments with respect to the propriety of the award of attorney fees. We note that if, as DOC contends, Williams used an attorney provided through OFEP at no actual cost to herself, the award should be reversed under Finney v. Dept. of Corrections, 263 Ga. 301 (1) (434 SE2d 45) (1993).

2. Robinson’s motions to dismiss this appeal for mootness and want of jurisdiction, as well as her motion to vacate our order consolidating/supplementing the record, are denied. See OCGA § 5-6-30; Seaton v. Aetna Cas. &c. Co., 189 Ga. App. 546, 547 (1) (376 SE2d 712) (1988).

Judgment reversed and case remanded.

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

Stroup & Coleman, Robert H. Stroup, Elizabeth V. Rogan, for appellee.

       Robinson is administrator of Williams’ estate.


author: Birdsong, Presiding Judge.

text:
    A95A0123.
    BYRD v. THE STATE.
    (455 SE2d 318)
   Birdsong, Presiding Judge.

Richard Byrd appeals his judgment of conviction of one count of armed robbery; the indictment for this count averred, inter alia, that appellant and several co-indictees, acting together as parties to the crime, did take certain property from the immediate presence of the named victim, by use of a revolver. Held:

1. To support the verdict, circumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662). A determination whether other hypotheses have been excluded is primarily a jury function. Murdix v. State, 250 Ga. 272, 274 (1) (297 SE2d 265). Viewing the evidence of this case in a light most favorable to the verdict, we conclude that the jury rationally could exclude every reasonable hypothesis except that of the defendant’s guilt. Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the armed robbery offense of which convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Appellant’s fifth and sixth enumerations of error are without merit.

2. Appellant contends the trial court erred in admitting in evidence certain statements of appellant when he was not furnished with a complete and accurate copy of such statements prior to trial.

The record reveals that appellant was notified by the State of the substance of the statements, within the meaning of White v. State, 253 Ga. 106, 109 (2) (317 SE2d 196), which the State anticipated using against him. Compare Causey v. State, 215 Ga. App. 723 (452 SE2d 564). Further, appellant concedes in his brief that State’s Exhibit 35-A, B, and C contained the written summary of defendant’s statement that was “provided to defendant.” Any discrepancies between the testimony of Captain Walters of the City of Sylvester Police Department, and the contents of the statements of which appellant was notified were sufficiently de minimis to be of no legal consequence. “[T]he law has historically declined to take notice of very small or trifling matters.” Thomason v. Times-Journal, 190 Ga. App. 601, 602 (1) (379 SE2d 551). Additionally, we are satisfied beyond a reasonable doubt that any statements admitted which pertained to offenses of which appellant was acquitted did not contribute to his conviction for the robbery of Jimmy Bridges at the pawn shop.

Captain Walters testified, regarding appellant’s explanation of events following the pawn shop robbery, that appellant made the statement: “ T told him, hell,’ to take the shit home.” State Exhibit 35-C, however, summarizes this particular sentence as follows: “I told him hell do to take that shit on.” When the testimony of Captain Walters is compared in its totality with the contents of State’s Exhibit 35-C, we find beyond a reasonable doubt that the discrepancy noted did not contribute to the guilty verdict of armed robbery of the pawn shop.

3. Appellant contends it was error to allow a witness to testify when the State had negotiated an agreement with the witness to obtain such testimony and had not disclosed the details of the agreement until after jury selection notwithstanding appellant’s timely request for such disclosure. Two co-indictees were called to testify by the State. Appellant’s sole contention in support of this enumeration is that an undisclosed negotiated plea existed between the witness Telley Styles and the State.

As appellant does not assert in support of this enumeration that an undisclosed negotiated plea existed between co-indictee Casynthia McWhorter and the State this particular issue has not been preserved on appeal. Court of Appeals Rule 27 (c) (2).

As appellant did not timely assert at trial any claim of error before the trial court on the grounds that an undisclosed negotiated plea existed between the State and Telley Styles, this issue is not preserved for appeal. Compare Cole v. State, 211 Ga. App. 236, 238 (438 SE2d 694).

Additionally, the record does not affirmatively disclose that any negotiated agreement existed between Telley Styles and the State, which was executed in consideration of Styles’ testifying in appellant’s trial; the State in its appellate brief expressly denies the existence of such an agreement. Appellant merely asserts in his appellate brief that “[a]ny negotiated plea between Telley Styles and the State regarding his testimony was never provided to appellant prior to trial or otherwise.” Facts and inferences asserted in appellate briefs unsupported by the record cannot be considered on appeal. Behar v. Aero Med Intl., 185 Ga. App. 845, 846 (1) (366 SE2d 223). Appellant has failed to establish affirmatively by the record that any such negotiated agreement existed between the witness Styles and the State; appellant must establish both harm and error to obtain reversal of a conviction on appeal. Robinson v. State, 212 Ga. App. 613, 616 (2) (442 SE2d 901).

4. Appellant contends the trial court erred in allowing the State to call a witness whose name was not provided in response to appellant’s demand, pursuant to OCGA § 17-7-110, for a list of witnesses. Specifically, appellant asserts that the name of Casynthia McWhorter was not provided to appellant until after jury selection. The record discloses that Casynthia McWhorter was averred as one of several coindictees in Count 6 of the indictment, the armed robbery count of which appellant was found guilty. The State contends, without contravention, that appellant was provided a copy of the co-indictee’s pretrial statement before she testified, and, at the commencement of trial, the trial court directed that appellant be provided the co-indictee’s statements made at the sentencing phase of her trial. Before appellant cross-examined Casynthia McWhorter, the witness admitted in direct examination that she had made a statement to the police when she was arrested and that subsequently she negotiated a plea agreement on agreeing to testify as a State’s witness. Appellant made neither a request for a continuance nor a motion for mistrial in regard to the co-indictee’s direct testimony; neither did appellant object when the State called the co-indictee to the stand.

“When a witness’ name is contained in the indictment, a defendant cannot validly contend that he had been surprised or unable to interview the witness in question through lack of knowledge of such witness.” Garvin v. State, 144 Ga. App. 396, 399 (5) (240 SE2d 925). It was not error to allow the testimony of the co-indictee, Casynthia McWhorter, notwithstanding that her name was not included in the list of witnesses; a defendant is placed on due notice that all parties named as victims or co-indictees in an indictment may be called as witnesses. Id.; Wright v. State, 167 Ga. App. 445 (1) (306 SE2d 428), citing Lingerfelt v. State, 238 Ga. 355, 358 (233 SE2d 356); compare State v. McBride, 258 Ga. 321 (368 SE2d 758), citing, inter alia, Garvin, supra; see Manning v. State, 207 Ga. App. 181, 182 (3) (427 SE2d 521), where the indictment contained the name of the victim-witness.

Additionally, the record affirmatively reveals that, prior to the co-indictee being called to the stand, the trial court directed that appellant be given an opportunity “to thoroughly interview” her; subsequently, appellant’s counsel affirmatively responded when asked if counsel “had an opportunity to talk with the witnesses” and stated she was ready to go forward with the trial of the case-in-chief.

Bentley v. State, 210 Ga. App. 862 (438 SE2d 110) is distinguishable and not controlling. In Bentley, the record revealed the witness declined to be interviewed before testifying, and the State’s tactics created an appearance that it was attempting to circumvent the defendant’s right to reasonable pretrial access to evidence. In the case at bar, the witness was listed on the indictment as a co-indictee and appellant’s counsel made an admission on the record that counsel was accorded an opportunity to talk with the witness and was ready to proceed to trial.

The purpose of OCGA § 17-7-110 is to afford the defendant a reasonable opportunity to interview witnesses prior to trial so as to avoid his being surprised by testimony at trial. White v. State, supra at 109 (3). The purpose of the statute is satisfied, however, where the trial court permits the appellant a reasonable opportunity to interview a witness before he testifies. Id. at 110; accord Thomason v. State, 215 Ga. App. 189, 190 (3) (450 SE2d 283); see Moss v. State, 196 Ga. App. 81, 83 (3) (395 SE2d 363). For this additional reason, the trial judge did not abuse his discretion in permitting the witness to testify. See generally Moody v. State, 258 Ga. 818, 821 (4) (375 SE2d 30).

Decided March 7, 1995.

Herbert W. Benson, Melinda B. Banks, for appellant.

C. Paul Bowden, District Attorney, Melinda I. Ryals, Assistant District Attorney, for appellee.

Further, assuming arguendo error had occurred as enumerated, appellant, by failing to invoke the remedies of continuance or mistrial (id.) and by announcing his readiness to proceed after affirming he had the opportunity to talk with the witness, would have aided such error by his own trial tactics and conduct. See generally Williams v. State, 205 Ga. App. 445, 446 (2) (422 SE2d 309).

5. To the extent the legal issues raised in appellant’s fourth enumeration of error (that it was error for the district attorney to fail to respond to his written notice for production of evidence favorable to appellant/defendant) were not properly addressed in the appellant’s brief in support of his first enumeration of error, they have been abandoned. Court of Appeals Rule 27 (c) (2). The issues contained in appellant’s first enumeration of error were decided against him in Division 2 above.

Appellant’s contentions in support of his various enumerations of error are without merit.

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A95A0205.
    LAMAR v. THE STATE.
    (455 SE2d 316)
   Birdsong, Presiding Judge.

Tommy D. Lamar a/k/a Tommy Lamar appeals his judgment of conviction of possession of cocaine with intent to distribute. His sole enumeration of error is insufficiency of the evidence to support the verdict. Held:

1. Appellant has abandoned any claims of error based either on allowing the evidence custodian to testify when his name was not on the witness list furnished appellant, or based on the appearance of a set of initials of an unknown person on a certain brown paper bag. Court of Appeals Rule 27 (c) (2).

2. In execution of a “no-knock” search warrant, a drug unit team approached the premises to be searched at approximately 11:30 p.m.; the premises was that of Joe Johnson, which had a reputation among both the drug community and law enforcement drug investigation community as a drug house where drugs are sold and consumed. An unnamed male came out of the premises, spotted the drug unit, cried “police,” and started running to a car. Except for uniformed officers, the members of the drug unit were wearing black raid jackets with the word “police” printed on the back. As members of the drug unit entered the front door, a police investigator yelled, “police.” Upon entering the premises, four males were observed: Joe Johnson was at the door, another was sitting on a couch, and appellant and another male were standing up in the front room. Appellant immediately ran to the bathroom, closed the door, and locked it. Police officers followed appellant in hot. pursuit. The toilet was heard to flush and the police kicked in the bathroom door when appellant would not open it. Appellant was found in a kneeling position on the floor “over the toilet bowl.” The water was still running in the bowl. When the police tried to pick appellant up, he grabbed the toilet bowl. The police pried appellant loose from the toilet bowl. No drugs were discovered in the flushed toilet. Appellant was searched and no drugs were found but appellant had $258.25 in cash on his person.

Joe Johnson, who was at the door, was secured by force; a clear plastic wrapping containing a large quantity of crack cocaine was found in plain view behind the door; another bag of crack cocaine subsequently fell out of his pants. Several rocks of cocaine were in plain view on the coffee table in front of the male sitting on the couch. The cocaine on the coffee table was approximately three to four feet from where appellant had been standing before he fled into the bathroom.

Appellant fled the crime scene and locked himself in the bathroom and proceeded to kneel over and flush the toilet. “ ‘Flight is circumstantial evidence of consciousness of guilt’ and the weight to be given such evidence is for the jury to decide; the fact that a suspect flees the crime scene points to the question of guilt in a circumstantial manner.” Campbell v. State, 215 Ga. App. 14, 15 (1) (449 SE2d 366); Green v. State, 206 Ga. App. 42, 44 (3) (424 SE2d 646).

On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737). To support the verdict, circumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662). Viewing the evidence of this case in its totality, we conclude that the jury rationally could find it excluded every reasonable hypothesis except that of the defendant’s guilt. Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided March 7, 1995.

John L. Tracy, for appellant.

Britt R. Priddy, District Attorney, Johnnie M. Graham, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson and Smith, JJ., concur.