text:
    A91A1320.
    HODGES v. THE STATE.
    (411 SE2d 775)
   Sognier, Chief Judge.

Joseph Hodges pled guilty to a seven count indictment and, after a restitution hearing was held, was found to owe his victims restitution in the amount of $4,750. He appeals contending the evidence was insufficient to authorize the judgment of $4,750 in restitution.

1. As to four counts of the indictment, appellant admitted his guilt regarding the burglary of Doug Turner’s storage building and his theft by taking of tools, a 1986 Honda motorcycle, and a 1985 Honda motorcycle, but now contends the State failed to prove the value of these items.

“[T]he maximum amount of restitution recoverable in a criminal case is that which would be recoverable in a civil action. [Cits.]” Lawrenz v. State, 194 Ga. App. 724 (1) (391 SE2d 703) (1990). “It has long been the rule that an owner of property may not testify as to his opinion of the value of the property without giving his reasons therefor, and an opinion as to value based solely on cost price is inadmissible in evidence as it has no probative value. To be admissible, testimony as to cost price must be coupled with other evidence such as a showing of the condition of the item both at the time of purchase and at the time its value is in issue. [Cit.]” Lovell v. State, 189 Ga. App. 311, 313 (3) (375 SE2d 658) (1988). “[T]he sufficiency of evidence to support an order of restitution should be measured by the civil standard of preponderance of the evidence. [Cit.]” Lawrenz, supra at 725 (1).

(a) As to the tools appellant took, Turner testified that he had used those tools to repair the equipment in his grading business, that he bought tools in the course of that business, and that he had also acquired some of the tools as gifts or as personal purchases. Admitted into evidence was an itemized list made by Turner of the tools that were not recovered, listing each tool’s condition and the value Turner had estimated for each. The transcript thus establishes that Turner’s opinion of the value of the tools was based on his experience as one who buys and uses tools in the course of his business, as well as on the condition of the tools when purchased and when stolen. Under the preponderance of the evidence standard, we find this evidence sufficient to establish the value of the tools for restitution purposes. Lovell, supra.

(b) As to the 1985 Honda motorcycle, Turner’s testimony and the documentary evidence established that the motorcycle, which Turner had obtained through a trade, was in good running condition. Based on the trade he made for the motorcycle, together with the estimated value of the motorcycle from the dealer where it was originally purchased and the condition of the motorcycle when stolen, as well as its “black-book value/’ Turner valued the 1985 Honda motorcycle at $900. We find this evidence sufficient to support the amount of restitution awarded for the stolen 1985 motorcycle. Id.

(c) As to the 1986 Honda motorcycle, David Turner testified that he was the owner of the vehicle, that he had owned it for a year and kept it very well maintained, and that he had expended approximately $500 on the motorcycle in rebuilding the engine, equipping it with new tires, and similar matters. Based on what he paid for the motorcycle, the work performed on it, and the “very good condition” of the motorcycle when it was stolen, and his “years of dealing with motorcycles and buying used motorcycles,” he valued the vehicle at $1,200. We find no error in the trial court’s award of restitution for the 1986 motorcycle based on this evidence. Id.

2. In the remaining count of the indictment at issue here, appellant admitted his guilt as to the theft by receiving of a Honda four wheeler owned by Elroy Warbington. Appellant contends that the evidence was insufficient to support the restitution ordered for this vehicle. We do not agree.

Decided October 23, 1991

Reconsideration denied November 4, 1991

Rafe Banks III, for appellant.

Garry T. Moss, District Attorney, T. Russell McClelland III, C. David Gafnea, Assistant District Attorneys, for appellee.

“The amount of restitution ordered may be equal to or less than, but not more than, the victim’s damages.” OCGA § 17-14-9. “ ‘Damages’ means all damages which a victim could recover against an offender in a civil action. OCGA § 17-14-2 (2). The statutory scheme requires the court to determine what type of civil action could be maintained by the victim, and to determine what the proper measure of damages would be in such a civil action. [Cit.] The victim [of theft by receiving] could maintain an action for conversion. Under that legal theory recovery of the value of the vehicle plus hire was permitted . . . . [Cits.]” (Punctuation omitted.) Sutton v. State, 190 Ga. App. 56, 57 (2) (378 SE2d 491) (1989). See also Lomax v. State, 200 Ga. App. 233, 234 (407 SE2d 462) (1991).

The evidence established that the 1989 vehicle, purchased for $3,300, was 20 months old when stolen in September 1990, and that Warbington and his insurer estimated the value of the stolen vehicle at $2,640 based on a ten percent depreciation per year. Warbington testified he received $1,640 from his insurer because of the $1,000 deductible on his policy. Based on this evidence, we find no error in the trial court’s award of $1,000 in restitution for the vehicle. See Lovell, supra; compare Sutton, supra at 57-58 (3). We note that no claim was made for reasonable hire, and although the vehicle was' recovered damaged (with the insurer assuming possession), no evidence was adduced regarding the devaluation of the vehicle attributable to that damage.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.

       Appellant in his brief expressly waived the error in the indictment setting forth Doug Turner as the owner of the 1986 motorcycle.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A91A1391.
    D’ANNA v. THE STATE.
    (412 SE2d 857)
   Andrews, Judge.

Defendant appeals his convictions for being an habitual violator and possession of less than an ounce of marijuana. He was acquitted of DUI and attempting to elude the police, based on the same incident.

The evidence was that Sgt. Whitlock was patrolling at 3:30 a.m. on Buford Highway when he noticed a pickup travelling toward him. He activated his radar and clocked the truck at 61 mph. He turned around to pursue the truck and it sped up. Whitlock described the driver as a white male with brown hair.

Although Whitlock called for backup and Officer Finn responded, coming up Buford Highway in the opposite direction, the truck eluded them. Whitlock backtracked and located the pickup parked behind a commercial establishment. There were no occupants in the truck but the engine was warm and there was the odor of burning rubber. Upon the arrival of Officer Finn, they looked into the truck and saw two purses on the seat. The keys were not in the truck.

Officer Finn began searching the area and saw defendant walking along Buford Highway. He directed him to cross the street and defendant did not respond initially, but did obey a second request. Officer Finn, with defendant’s consent, conducted a pat down, discovering a bulge in defendant’s front waistband. Upon investigating, Finn found a wallet and a set of keys stuffed in the waistband. Upon being asked his name and birthdate, defendant gave his first and middle name, but not his last and an incorrect birthdate. He denied the truck belonged to him. The truck was owned by a friend of defendant’s. Defendant said he had been selling T-shirts with his girl friend at an intersection and somebody had just dropped him off there. He said he was looking for a pay phone to call someone to come pick him up.

Officer Finn gave the keys to Sgt. Whitlock. The keys started the truck. Sgt. Whitlock returned to Finn and defendant and announced this. Defendant then said that the truck belonged to a friend and he was driving it.

1. Prior to trial, defendant made a request pursuant to OCGA § 17-7-210 for any statements made by him. None had been provided.

Upon the introduction of the statement, defendant objected on this basis. The court excused the jury and conducted the hearing required by Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964). The court ruled the statement was voluntary and was not the result of questioning, but was spontaneously offered by defendant. The court further held that defendant was not under arrest at the time the statement was made, therefore there was no violation of the statute. We disagree.

OCGA § 17-7-210 (a) and (c) provide that at least ten days before trial, “the defendant shall be entitled to have a copy of any statement given by him while in police custody[,]” and that “[f]ailure of the prosecution to comply with a defendant’s timely request for a copy of his statement, whether written or oral, shall result in such statement being excluded and suppressed from the prosecution’s use. ...”

The issue here is whether at the time the statement was made, defendant was “in police custody.” Coney v. State, 198 Ga. App. 272, 273 (1) (401 SE2d 304) (1991).

While Sgt. Whitlock’s testimony was contradictory as to when the statement occurred, it is not disputed that after the keys found on defendant had started the truck it was the intention of the officers to arrest defendant, whether the formal arrest had occurred or not. The statement also occurred at a time when defendant believed he was not free to leave. Both officers also agreed that, after the location of the keys and wallet, defendant was not free to leave, although the decision to formally arrest came later. See Shy v. State, 234 Ga. 816, 821 (1) (218 SE2d 599) (1975). Therefore, the court was in error in concluding that OCGA § 17-7-210 did not apply. The statement was inadmissible. Coney, supra.

Improper admission of such a statement does not require reversal if it is highly probable that its admission did not contribute to the verdict because evidence, exclusive of the statement, was overwhelming. Id.; Davis v. State, 198 Ga. App. 375 (2) (401 SE2d 581) (1991).

Defendant testified that he was a passenger in the truck and his girl friend, who had brown curly hair similar to his, was driving because he was inebriated and was asleep in the passenger seat. He was an habitual violator and she drove him to and from work in the friend’s truck. He and she had met at AA and he was in rehabilitation. She was angry with him and decided he should walk. home. He denied seeing the police car following them and there was no evidence the police employed their sirens during the pursuit. When she pulled behind the store, he grabbed the keys so she would also have to walk and began walking down the highway. She ran from the scene because of prior difficulty with the law. Defendant said the purses in the truck belonged to her. Although he had sent her a subpoena for the trial, he had been unable to locate her and she did not testify.

Because the evidence here of defendant’s driving the truck, aside from the statement, was wholly circumstantial and defendant offered a reasonable hypothesis explaining his presence for the jury’s consideration, it is highly probable that the statement contributed to the verdict on the habitual violator charge. Coney, supra; Davis, supra. This conclusion is mandated when the verdicts of not guilty on the eluding and DUI charges in addition to the jury’s initial split votes on all counts except the possession of marijuana charge and the court’s giving of the “dynamite” charge are considered. Therefore, the habitual violator charge is reversed.

2. Division 1 makes unnecessary consideration of the remaining enumerations of error.

Judgment affirmed in part and reversed in part.

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

Decided November 4, 1991.

G. Wayne Lancaster, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

       The possession of marijuana conviction is not the subject of the appeal and stands affirmed.


author: Beasley, Judge.

text:
    A91A1442.
    PAUL DAVIS SYSTEMS OF SAVANNAH, INC. v. PETH.
    (412 SE2d 279)
   Beasley, Judge.

Peth’s house was damaged by fire. He contracted with Paul Davis Systems for repair. Alleging that the repair work was not performed satisfactorily according to contract, Peth sued Davis. The only cause of action was breach of contract, and the jury returned a verdict in favor of plaintiff.

The parties’ contract was composed of a work authorization and an itemized estimate of the cost to repair the fire damage, plus a change order for designer solarium flooring instead of vinyl. The estimate consists of a computer printout describing the repairs to be made in the rooms of the house and to the roof and several miscellaneous items, including electrical work and plumbing. The repairs are divided into categories such as ceilings, walls, windows, floors, doors, roof. Within each category, the work to be done is itemized and calculated according to units, price per unit, and extension (total price per item). The total estimate of the cost of repairs is $48,922.82, which was increased by the change order of $748.

Plaintiff sought a recovery of $45,000 plus other damages which were eliminated at trial, and defendant filed a counterclaim for the unpaid balance due of $4,670.83. The verdict and judgment were $40,000 on the claim and zero on the counterclaim.

Plaintiff’s expert witnesses included a county building inspector (Davis), a consulting engineer (Kern), and a home improvement contractor (Daily). Their opinions, individually or collectively, were that the roof was not structurally sound; that there were many humps or waves in it; that it had not been framed properly; that rafters had not been installed properly; and that the correction of these problems would necessitate the removal and reconstruction of the roof. They also testified as to extensive problems with the sheetrock in the walls and on the ceilings and that substantial portions of the sheetrock would have to be either removed and repaired or entirely replaced. They also testified that wallpaper had not been hung properly and that attic insulation had not been installed properly.

A home videotape, taken by plaintiff’s wife after Davis was stopped from proceeding, was played before the jury over objection. Plaintiff’s wife described by testimony what was being depicted. She pointed out such things as doors, windows, and carpeting which she testified had been installed improperly or not at all, unrepaired cabinets, and areas of uneven and missing and peeling wallpaper. In addition, she testified about items in defendant’s estimate which had been done improperly or not at all.

Daily estimated that the total cost to remedy would be $53,750. His itemized proposal contains 19 items, e.g., tear off and rebuild roof, tear out and redo sheetrock, clean and re-paint all walls and ceilings. It does not apportion the amount proposed for each item. An item not included in defendant’s contract was removal of the fire-damaged roofing and sheetrock, which had been done before defendant commenced work.

Defendant moved for jnov or new trial, contending that the verdict is contrary to law and to the evidence, without evidence to support it, contrary to principles of justice and equity, and excessive in amount. Defendant also contended that the court erred in allowing the videotape presentation. The court denied the motion in an explanatory order, ruling that there was “ample evidence” to support the verdict. The appeal incorporates the foregoing contentions into a single enumeration of error.

1. Defendant argues that he contracted to provide only certain remodeling and repairs to an older residence which had been partially destroyed by fire, and there was no correlation between the testimony of plaintiff’s witnesses as to the items in the house in need of repair and the items which defendant was contractually obligated to repair, since the witnesses had not reviewed the parties’ contract and because testimony included items not covered by the contract.

Although plaintiff’s witnesses had not reviewed the parties’ contract, Daily testified that he compiled his proposal based on his inspection of the residence and plaintiff’s statements to him as to the repair work defendant had contracted to do. Defendant’s repair estimate and Daily’s proposal were admitted in evidence; these documents show that the jury could have found that the items in the proposal represented repair work necessitated by defendant’s improper repairs. Daily and all witnesses were subject to cross-examination to ferret out any items in their testimony which in defendant’s view were not covered by the contract, which was in evidence.

As to damages, “[a] jury must be able to calculate the amount of damages from the data furnished and it cannot be placed in a position where an allowance of loss is based on guesswork. [Cit.] A jury must be able to calculate loss with a reasonable certainty. [Cit.] The party claiming damages carries not only the burden of proving the damages, but also furnishing the jury with sufficient data to estimate the damages with reasonable certainty. Tt is not necessary, however, that the party on whom the burden thus rests should submit exact figures.’ [Cit.j” Moultrie Farm Center v. Sparkman, 171 Ga. App. 736, 740 (6) (320 SE2d 863) (1984); also see Pool Markets South v. Coggins, 195 Ga. App. 50, 51-52 (3, 4) (392 SE2d 552) (1990); Doughty v. Simpson, 190 Ga. App. 718, 722 (3) (380 SE2d 57) (1989). “Generally, the proper measure of damages for defective workmanship would be the cost of repair of the defect. [Cits.]” Adamson Co. v. Owens-Illinois Dev. Corp., 168 Ga. App. 654, 657 (309 SE2d 913) (1983). This principle was expressly applied, correctly, by the trial court. There was sufficient data to determine the damages with reasonable certainty. See generally Pool Markets, supra; Palmer v. Howse, 133 Ga. App. 619, 620 (1) (212 SE2d 2) (1974); OCGA § 13-6-2.

2. Citing Ideal Pool Corp. v. Hipp, 187 Ga. App. 273 (1) (370 SE2d 32) (1988), defendant argues that the verdict is excessive in that plaintiff has had the use of the residence both during and after defendant’s contract performance, and he has thus been unjustly enriched. The alternate measure of damages appropriate there, where the defect was not remediable at a reasonable price, was diminution in value as constructed when compared with value had the contract been properly performed. That yardstick does not apply in this case because the deficiencies were remediable. The court charged OCGA § 13-6-2 and cost to cure, and defendant took no exception.

The cost of redoing the repairs included additional charges for such things as the removal of roofing, sheetrock, and wallpaper improperly installed. According to the usual course of things, this could be expected. Cf. Palmer, supra, involving consequential damages to a house caused by improper construction. “[T]he measure of damages includes all items that ‘arise naturally and according to the usual course of things from such breach and such as the parties contemplated, when the contract was made, as the probable result of its breach.’ OCGA § 13-6-2. . . .” Adamson, supra.

“The question of damages being one for the jury, a reviewing court should not interfere unless the damages are either so small or so excessive as to justify the inference of gross mistake or undue bias.” OCGA § 13-6-4; Pool Markets, supra.

3. Construing the evidence in a light most favorable to the verdict, Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 159 (1C) (256 SE2d 916) (1979), the trial court did not err in refusing to grant defendant’s motion for new trial on the evidentiary grounds asserted.

4. Defendant argues that the videotape was not correlated to work performed by defendant, was of such extreme poor quality and coloration that it was not an accurate representation of what it sought to depict, and was inflammatory, thereby leaving an indelible mental impression in the minds of the jurors.

Decided November 4, 1991.

Remler, Koski & Near, Albert N. Remler, for appellant.

Duffy & Feemster, Dwight T. Feemster, Jo Beth Gosdeck, for appellee.

“Georgia follows a liberal policy in the admission of photographic evidence. [Cit.] Whether, under the evidence, the photograph or movie tape is a fair and accurate representation of the scene sought to be depicted addresses itself to the discretion of the trial judge which will not be controlled unless abused. [Cits.] . . .” Eiland v. State, 130 Ga. App. 428, 429 (1) (203 SE2d 619) (1973). The videotape as a whole showed the areas of work covered by the contract, it was taken at a time relevant to the issues, and its quality and color were not so bad as to make it misleading or otherwise inadmissible as a matter of law. The witness, who took it and explained it and the circumstances in which it was taken, was subject to cross-examination. It was not necessary that she correlate the scene to the particular terms of the contract, as the body of evidence connected it up. Contrary to the videotape in Keith v. State, 186 Ga. App. 273, 274 (2) (367 SE2d 255) (1988), the evidence in this case was “a fair and accurate representation of the scene sought to be depicted” despite its shortcomings. Defendant has not shown an abuse of discretion here.

Judgment affirmed.

Carley, P. J., and Judge Arnold Shulman concur.


author: Birdsong, Presiding Judge.

text:
    A91A1810.
    STEPHENS v. THE STATE.
    (412 SE2d 568)
   Birdsong, Presiding Judge.

Jesse Dicky Stephens, Jr. was convicted of the offenses of DUI, driving with excessive blood alcohol concentration, and driving on the wrong side of the roadway. He appeals and asserts as his sole enumeration of error that the trial court erred by failing to give his requested charge on circumstantial evidence. Appellant asserts he “had requested that the [trial] court charge the jury on circumstantial evidence presenting two reasonable theories one consistent with innocence and the other consistent with guilt then justice compels acceptance of the theory that [is] consistent with innocence.” Held:

1. Although the notice of appeal is deficient as it does not contain a concise statement of a judgment, ruling, or order from which appellant would be entitled to appeal (OCGA § 5-6-37), the judgment being appealed is apparent from examining the notice of appeal, enumeration of error and trial record. OCGA § 5-6-48 (f).

2. Appellant correctly conceded in open court that his requested charge was applicable only if proof of the case rested entirely upon circumstantial evidence. This charge request is not contained in the trial record.

The evidence most favorable to the State establishes that an officer who had been employed for three years with the local sheriff’s department and who has attended several traffic schools observed an Oldsmobile drive across the roadway centerline “on three different occasions.” The car was definitely on the wrong side of the road. The officer followed for .4 or .5 mile without losing sight of the vehicle and then stopped it; within a matter of seconds, the officer turned on his spotlights and “that’s when the driver exited the vehicle on the driver’s side.” (Emphasis supplied.) It was appellant who exited the vehicle on the “driver’s side.” There was no doubt in the officer’s mind that appellant was “the driver of the vehicle.” A passenger who was seated on the passenger side immediately opened his door. Appellant walked around to the passenger side, the passenger got out, and the passenger and appellant started talking to each other. The officer was probably 25 to 30 feet away at the time. Appellant’s eyes were bloodshot, his speech extremely slurred, and the officer could smell a strong odor of alcohol on appellant. Appellant was placed under arrest for DUI. In the officer’s opinion appellant was an unsafe driver due to “extreme impairment of alcohol.” Appellant tested .19 grams on the Intoximeter 3000. As the officer drove appellant and the passenger to the substation, appellant claimed for the first time that he was not the driver; and, appellant and the passenger who owned the vehicle “were talking back and forth in the back” of the police car.

Appellant and the passenger who owned the vehicle both testified it was the passenger and not appellant who had been driving the vehicle at the time of the incident. An official property receipt reflects it was the passenger who checked the car keys in at the police station. Appellant made an admission in open court that he was intoxicated the night of the incident.

The so-called “two theories” charge is appropriate only when all the evidence is circumstantial. Hamilton v. State, 260 Ga. 3, 5 (4b) (389 SE2d 225); Hawkins v. State, 260 Ga. 138, 139 (6b) (390 SE2d 836); Cook v. State, 195 Ga. App. 461, 462 (1) (394 SE2d 121). The evidence in this case was both direct and circumstantial in nature. The charge was not required.

Secondly, it may be inferred from Hamilton, supra, that the giving of the following charge would substantially and adequately cover the principles contained in a “two theories” charge: “To warrant a conviction on circumstantial evidence alone, the proven facts must not only be consistent with the theory of guilt but must exclude every reasonable theory other than the guilt of the accused. The comparative weight of circumstantial evidence and direct evidence on any given issue is a question of fact for the jury to decide.” This charge was given in the case at bar. Cf. Harrison v. State, 257 Ga. 528 (4) (361 SE2d 149).

Decided November 4, 1991.

Victor Hawk, for appellant.

Michael C. Eubanks, District Attorney, Richard E. Thomas, Hugh M. Hadden, Assistant District Attorneys, for appellee.

Additionally, even if the “two theories” charge was required and even if it was not adequately and substantially covered by the charges given, for the following reason we would still be compelled to support the trial court’s determination not to give the requested charge. The notice of appeal does not specify that the entire record will be forwarded for appellate review, and the record does not contain a written request to charge by appellant. It would be essential in order to overturn the trial court’s ruling that we actually review the contents of the written charge request tendered at trial, this being the only way we could verify that the charge as drafted was a correct statement of law, was neither misleading nor confusing, and was not argumentative in form. Compare Hunnicutt v. Hunnicutt, 182 Ga. App. 578, 579 (356 SE2d 679); see Ross v. State, 195 Ga. App. 624, 626 (3) (394 SE2d 418).

Appellant’s enumeration of error is without merit.

3. 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 (1) (393 SE2d 737). Viewing the evidence of this case in a light most favorable to the verdict, we conclude that the jury, consistent with the instructions given, rationally could have found that the competent and relevant evidence of record excluded every reasonable hypothesis except that of 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 offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A1824.
    COUNTRY PRIDE HOMES, INC. v. DuBOIS et al.
    (412 SE2d 282)
   Birdsong, Presiding Judge.

This is an appeal from a judgment following a trial without jury, in an action by appellees Charles and Carol DuBois against Country Pride Homes, Inc., for breach of contract and fraud in the inducement involving the DuBoises’ execution of a purchase contract. The trial court made extensive findings of fact and conclusions of law, finding that by promising and representing to appellees that certain options were available, Country Pride Homes’ salesman induced them to agree to purchase a mobile home and to execute a check for $6,800, when the salesman knew the options were not available or recklessly misrepresented the fact. The options appellees chose were “blue sculpted” carpet and a window in the utility room. The salesman wrote the options on a separate paper which he signed contemporaneously with the contract execution. This was on Saturday. On Monday, appellees were told the options were not available. They decided not to go through with the purchase. Country Pride Homes refused to return their money on grounds it had an enforceable contract, although it had also altered the financial terms of the purchase, including changing the cash price, after appellees executed the contract. The trial court gave judgment to appellees for a return of their money plus interest, and attorney fees. Held:

1. Appellant Country Pride Homes contends the trial court erred in its construction of the contract and the evidence. We have reviewed the trial court’s well reasoned findings and conclusions, and find the judgment to be supported by the evidence. Appellant’s view of the case is essentially a dispute of the facts found by the trial court. Appellant contends the “blue sculpted” carpet which appellees chose was not unavailable, but that appellees neglected to examine the carpet samples when they signed the contract on Saturday and then changed their minds after looking at the samples on Monday.

These facts have been found adversely to appellant, and since the evidence supports the trial court’s findings of fact, we are not authorized to consider the appeal in light of contrary facts as argued by appellant. When a trial court sits as both judge and jury, the court’s findings of fact are binding on appeal and, unless wholly unsupported or clearly erroneous, will not afford a basis for reversal; on appeal this court must not substitute its judgment for that exercised by the trial court when there is some support for the trial court’s conclusion; our duty is not to weigh evidence de novo, but merely to determine if there is any evidence which supports the judgment below; and on appeal we construe the evidence with every inference and presumption in favor of upholding the verdict. Target Properties v. Gilbert, 192 Ga. App. 161, 162 (384 SE2d 188).

Decided November 4, 1991.

Herndon, Chestnut & Rosenblum, Herbert J. Chestnut, for appellant.

Karsman, Brooks & Calloway, R. Kran Riddle, for appellees.

The judgment below is fully supported by evidence and authorized by the law of contract interpretation including OCGA § 13-2-2. The trial court was authorized to find that the contract had no firm agreement as to cost and was unenforceable (Charter &c. Co. v. Urban Med. Svcs., 136 Ga. App. 297, 298 (220 SE2d 784)) because certain terms were changed after it was signed (see Vlass v. Walker, 86 Ga. App. 742 (72 SE2d 464)); and that the salesman fraudulently induced appellees to execute the contract by representing that “blue sculpted” carpet was available when he knew it was not or recklessly asserted the fact with intent to deceive (see Bill Spreen Toyota v. Jenquin, 163 Ga. App. 855 (294 SE2d 533); OCGA § 23-2-52).

2. Appellant’s assertion that an attorney fee award is unauthorized because this is not an action ex delicto is in error. An award of attorney fees is authorized “where the defendant has acted in bad faith in making the contract, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.” OCGA § 13-6-11. This statute specifically refers to actions in contract and may apply to suits where recovery as to a contract lies in both contract and tort, that is, where the contract was procured or transacted in bad faith or was induced by fraud and deceit. Canal Ins. Co. v. Lawson, 123 Ga. App. 376 (181 SE2d 91). The evidence supports the award of attorney fees in this case.

Judgment affirmed.

Pope and Cooper, JJ., concur.


author: Cooper, Judge.

text:
    A91A1272.
    C. W. MATTHEWS CONTRACTING COMPANY, INC. v. STUDARD et al.
    (412 SE2d 539)
   Cooper, Judge.

This appeal originated from a suit by Martha Jane Studard (“Studard”) and her husband against the Georgia Department of Transportation (“DOT”) and its commissioner, Thomas Moreland (“Moreland”), various other employees of the DOT, and appellant. Studard was involved in a traffic accident with a hit-and-run driver on a stretch of Georgia highway that was being resurfaced by appellant pursuant to a contract with the DOT. In their complaint, the Studards alleged that certain of the defendants, including Moreland, “negligently and carelessly permitted, allowed, and/or placed inadequate and insufficient traffic controls and/or warnings” along the roadway where Studard’s accident occurred and the defendants “knew or in the exercise of ordinary care should have known” that the roadway conditions would result in an accident. After much discovery, the trial court ruled on motions for summary judgment filed by all defendants, granting Moreland’s motion and denying the motions of the other defendants. Appellant then filed a notice of appeal of the trial court’s order, specifically appealing the grant of summary judgment to Moreland and the denial of summary judgment to appellant. Appellant did not obtain a certificate of immediate review from the trial court, nor did appellant follow the procedures for appeal set forth in OCGA § 5-6-34. Appellees have moved to dismiss the instant direct appeal on the grounds that appellant has no standing to appeal the grant of summary judgment to Moreland and consequently appellant has no right to appeal the denial of its own notion for summary judgment. For the reasons stated below, we agree with appellees and dismiss this appeal.

1. Appellees argue that the appeal should be dismissed because appellant failed to obtain a final judgment from the trial court pursuant to OCGA § 9-11-54 (b). This argument fails because “[OCGA § fill-56 (h)], which permits direct appeal from any grant of summary judgment, is an exception to the finality rule expressed in [OCGA § fill-54 (b)].” Edwards v. Davis, 160 Ga. App. 122 (1) (286 SE2d 301) (1981). “ ‘Even in the absence of “an express determination that there is no just reason for delay”. . . , the order granting the . . . summary judgment is nevertheless appealable. [Cits.]’ [Cit.]” Advanced Contouring v. McMillan Div. &c., 179 Ga. App. 128 (2) (345 SE2d 666) (1986).

2. Despite the order’s appealability, we agree with appellees’ contention that in the instant case, appellant has no standing to appeal the grant of summary judgment to its co-defendant, Moreland. Appellant relies on the holding in Merritt v. McCrary, 162 Ga. App. 825 (1) (292 SE2d 920) (1982) that “the 1972 amendment to [OCGA § 51-12-32] eliminated the rule that a co-defendant in a tort action is without standing to appeal the grant of summary judgment to another co-defendant against whom he asserts a right of contribution.” However, this court has limited this relaxation of the standing requirement to situations in which the co-defendants are being sued as joint tortfeasors. Shackelford v. Green, 180 Ga. App. 617, 618-619 (349 SE2d 781) (1986), aff’d 257 Ga. 9 (356 SE2d 27) (1987). Only if the co-defendants are sued as joint tort-feasors does the grant of summary judgment as to one potentially affect the other’s right of contribution. Therefore, it is only in this situation that the co-defendant is deemed a losing party and therefore has standing to appeal the grant of summary judgment to another co-defendant. Id. at 618. “ ‘Defendants are joint tort-feasors when their separate and distinct acts of negligence concur to proximately produce an injury. (Cits.)’ [Cit.] . . . ‘Where the liability of the employer for the negligent acts of his employee rests only on the doctrine of respondeat superior, the employer becomes liable although he was not negligent because the employee’s negligence was imputed to him as a matter of law, and thus the nonnegligent employer is not a “joint tortfeasor” in the sense in which the phrase is ordinarily used. . . .’ [Cit.] ‘An action brought against defendants jointly on the theory that one, as principal, is liable for the tortious acts of another ... , is a joint action but not a joint cause of action. [Cit.]’ [Cit.] ... It follows that ... a co-defendant in a multiparty action which is not a joint cause of action, cannot complain of the grant of summary judgment in favor of [an] alleged vicariously liable co-defendant.” Id. at 618-619. See Gay v. Piggly Wiggly Southern, 183 Ga. App. 175 (1) (358 SE2d 468) (1987).

Appellant contends that Moreland was sued under the theory of his vicarious liability as commissioner and on the theory of negligence for his own personal, direct actions. Thus, argues appellant, Moreland and appellant were sued as joint tortfeasors, and appellant has standing to pursue this appeal. A review of the voluminous record completely belies appellant’s argument. Although the complaint was phrased in general language, the pleadings filed by the Studards in this action, including the Brief in Opposition to Moreland’s Motion for Summary Judgment and the Response to Moreland’s Statement of Material Facts, clearly indicate that liability as to Moreland was based only upon his position as commissioner, i.e., based on the theory of respondeat superior. The Studards, in their brief to this court, admit that the suit against Moreland was always predicated only on his vicarious liability, and they did not appeal the grant of summary judgment to Moreland. The only theory of Moreland’s liability that was presented to the trial court was respondeat superior; the issue of liability based on personal actions of Moreland was not raised by the pleadings. There was no evidence submitted to the court on the personal negligence of Moreland, and in fact all the evidence clearly showed Moreland’s complete lack of personal involvement in the circumstances leading to Studard’s accident. Appellant never responded to Moreland’s motion for summary judgment even though it was based upon the theory of respondeat superior but instead filed a cross-claim against Moreland raising the issue of Moreland’s personal negligence well after the trial court’s order on the motions for summary judgment had been issued. Under these circumstances, we conclude that appellant and Moreland were not sued as joint tort-feasors, that Moreland’s liability was based only on his vicarious liability under the doctrine of respondeat superior and that appellant has no standing to appeal the grant of summary judgment to Moreland. Without standing to bring this direct appeal, appellant cannot appeal the denial of its own motion for summary judgment. See OCGA § 9-11-56 (h); OCGA § 5-6-34. This appeal is dismissed.

Decided September 30, 1991

Reconsideration denied November 5, 1991

Gerard & Mathews, William T. Gerard, for appellant.

Michael J. Bowers, Attorney General, George P. Shingler, Senior Assistant Attorney General, C. LaTain Kell, Assistant Attorney General, Susan J. Levy, Staff Attorney, Robert K. Finnell, for appellees.

Appellees’ request for penalties pursuant to Court of Appeals Rule 26 (b) is hereby denied.

Appeal dismissed.

Birdsong, P. J., and Pope, J., concur.


author: Pope, Judge.

text:
    A91A1124.
    STEPHENS v. THE STATE.
    (412 SE2d 571)
   Pope, Judge.

Appellant Kenneth Leon Stephens was indicted for the offenses of pointing a pistol at another, carrying a concealed weapon, carrying a pistol without a license, possession of a firearm by a convicted felon and arson. In March of 1985 he entered a special plea of not guilty by reason of insanity and was committed to the custody of the Department of Human Resources, under the provisions of OCGA § 17-7-131, to receive involuntary treatment pursuant to Chapter 3 of Title 37 of OCGA. On October 19, 1990, appellant filed his second petition for release from custody pursuant to OCGA § 17-7-131 (f), contending he no longer met the criteria for civil commitment. The trial court denied appellant’s petition for release and appellant filed a timely appeal to this court. We affirm.

1. In his first two enumerations of error appellant argues the trial court erred in denying his petition for release because he met his burden of showing that he no longer meets the criteria for continued civil commitment. In support of his argument appellant points to the testimony of Dr. Robert J. Storms, chief psychologist for the Forensic Services Division of Central State Hospital, who testified that appellant met all the criteria for release established by the hospital and that it was his position, as well as the position of the staff at the hospital, that appellant should be released. Dr. Storms also testified that appellant suffers from a biochemical (manic-depressive/paranoid-agressive) disorder which is controlled, but not cured, by medication (lithium). On cross-examination Dr. Storms testified that appellant was being maintained on lithium at the time he committed the offenses giving rise to the charges which led to his confinement but that appellant had quit taking his medication at that time. However, Dr. Storms testified it was his opinion that appellant now had a better understanding of his need to take his medication. Testimony was also offered that appellant had escaped and remained outside the confines of the hospital for approximately three years shortly after his original confinement and that approximately a year ago appellant had become aggressive and had to be moved to a more restrictive environment following the denial of his first petition for release.

“The superior court, and not mental health professionals, has the responsibilty for deciding applications for release under OCGA § 17-7-131. Loftin v. State, 180 Ga. App. 613, 615 (349 SE2d 777) (1986). The court may rely on the presumption of continued insanity, OCGA § 24-4-21, and is not bound by the opinions of either lay or expert witnesses, Cox v. State, 171 Ga. App. 550, 551 (320 SE2d 611) (1984), and Pitts v. State, 151 Ga. App. 691, 695 (261 SE2d 435) (1979).” Butler v. State, 258 Ga. 344, 345 (1) (369 SE2d 252) (1988). In this case the trial court, based on the evidence presented, was authorized to deny the appellant’s application for release from commitment. See, e.g., Haugebrooks v. State, 196 Ga. App. 5 (395 SE2d 348) (1990); Cox v. State, 171 Ga. App. 550 (320 SE2d 611) (1984). Consequently, appellant’s first two enumerations of error are without merit.

2. Appellant next contends it was error for the trial court to refuse to admit into evidence a psychological report prepared by the staff of Central State Hospital because OCGA § 17-7-131 (e) (3) gives him the right to offer evidence. The record shows, however, that appellant did not challenge the trial court’s ruling on the admissibility of the evidence; consequently he has wavied the right to raise this issue on appeal. See Lewis v. State, 198 Ga. App. 808, 809 (2) (403 SE2d 233) (1991); Holland v. State, 197 Ga. App. 496 (1) (398 SE2d 810) (1990); Brinson v. State, 191 Ga. App. 151 (2 & 3) (381 SE2d 292) (1989).

3. Appellant next challenges the trial court’s failure to exclude the testimony of the State’s witness, Dr. Martin Youngleson. However, the arguments posited in support of this enumeration go to the credibility of the witness and the weight to be given his testimony; they do not support appellant’s contention that the testimony should have been excluded. Thus we find no merit to this enumeration.

4. Appellant also raises for the first time on appeal certain constitutional challenges to OCGA § 17-7-131. “While this is an enumeration of error over which the Georgia Supreme Court has exclusive jurisdiction, we need not transfer the appeal for lack of jurisdiction because defendant did not raise this constitutional issue at trial and therefore forfeited his right to raise the issue on appeal. Senase v. State, 258 Ga. 592 (372 SE2d 813) (1988).” Anthony v. State, 197 Ga. App. 297, 299 (3) (398 SE2d 580) (1990). See also Grant v. McKiernan, 82 Ga. App. 82 (1) (60 SE2d 794) (1950).

Decided November 5, 1991.

Barham & Manley, William W. Barham,'for appellant.

Lewis R. Slaton, District Attorney, Rebecca A. Keel, Joseph J. Drolet, A. Thomas Jones, Assistant District Attorneys, for appellee.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A1255.
    CARSWELL v. THE STATE.
    (412 SE2d 572)
   Pope, Judge.

Appellant/defendant Robert Carswell appeals from his conviction for possession of cocaine with intent to distribute. Construed so as to support the verdict, the evidence adduced at trial showed that Officer Martin Ursetti, a member of the Macon-Bibb County Drug and Vice Unit, acting on a tip from an informant that drugs were in a particular car, stopped the car driven by defendant. The car came to rest on the up-slope of a hill. A woman named Pamela Moore was seated in the front passenger’s seat when the car was stopped. Ursetti approached the driver’s side of the stopped car and asked the defendant for a driver’s license. Defendant responded that he did not have his driver’s license. Ursetti asked defendant for his name, and defendant identified himself as Calvin Carswell, which is defendant’s brother’s name. The officer then called the radio room and asked them to run a check to see if defendant had a valid driver’s license and if there were any outstanding warrants for his arrest.

Approximately three to four minutes elapsed between the time defendant’s car was first stopped and when Ursetti returned to the car. Ursetti then informed defendant that he intended to search the vehicle for cocaine. At that time the defendant started making motions toward the floorboard, where the transmission was located. The defendant told Ursetti that the brakes were failing on his vehicle and that he could not get it to stop. The car rolled down the hill. Ursetti testified that there was a lot of movement within the vehicle while it was rolling. After the vehicle came to rest at the bottom of the hill, the officer moved the vehicle and both the regular brakes and the parking brake appeared to operate normally. Suspecting that the defendant had identified himself falsely, Ursetti called another officer to the scene who Ursetti thought would know Calvin Carswell. This officer identified the defendant as Robert Carswell not Calvin Carswell. The defendant was then placed under arrest for giving the officer a false name.

Defendant was searched and a hand-held calculator was removed from his jacket pocket. Inside the calculator case, the officer found two razor blades, one in the original wrapper bearing the name brand Treet and the other in a matchbook.

A pat-down search of the passenger was also conducted. When it was noticed that she had a conspicuous bulge in the lower abdominal area, a female officer was called to search her. The search by the female officer revealed a pill bottle located in the passenger’s crotch area, which contained 13 pieces of crack cocaine and a wrapper for a razor blade bearing the name brand Treet. Moore was also arrested. Both defendant and Moore were indicted for jointly possessing cocaine with intent to distribute, and defendant was indicted for giving a false name. Moore pleaded guilty to possessing cocaine with intent to distribute. Defendant was convicted of both charges, but only appeals from his conviction for possession of cocaine with intent to distribute.

Defendant argues that the trial court erred in denying his motion for directed verdict of acquittal, because the circumstantial evidence connecting Carswell to the cocaine found in Moore’s clothing is insufficient to support a verdict of guilty. “As a general rule a motion for directed verdict of acquittal should be granted only where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. [Cit.] However, the proper test when sufficiency of the evidence is challenged by a motion for directed verdict of acquittal is the ‘reasonable doubt’ test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]; Humphrey v. State, 252 Ga. 525, 527 (314 SE2d 436) [(1984)].” Wilburn v. State, 199 Ga. App. 667 (1) (405 SE2d 889) (1991).

“Possession may be joint or exclusive, and actual or constructive. [Cits.]” Sanders v. State, 199 Ga. App. 671, 672 (2) (405 SE2d 727) (1991). As a general rule, when “drugs are found in the ‘immediate presence’ of the defendant, the jury is authorized to find they are ‘in the constructive possession’ of the accused. [Cits.]” Id. “ ‘To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.’ OCGA § 24-4-6. Whether this burden has been met is a question for the jury, and its determination will not be disturbed unless the verdict is [ijnsupportable as a matter of law. [Cit.]” Doe v. State, 189 Ga. App. 793, 795 (377 SE2d 546) (1989).

Defendant contends that the only connection between the cocaine found in Moore’s clothing and him was that she was a passenger in his car. He correctly argues that a finding of constructive possession must be based upon something more than mere “spatial proximity.” Shirley v. State, 166 Ga. App. 456, 457 (1) (304 SE2d 468) (1983).

Decided November 5, 1991.

Buford D. Hunnicutt, for appellant.

Willis B. Sparks III, District Attorney, Vernon R. Beinke, Thomas J. Matthews, Assistant District Attorneys, for appellee.

Our review of the transcript in this case leads us to conclude that the trial court correctly denied defendant’s motion for directed verdict of acquittal. The arresting officer testified that there was considerable movement in defendant’s vehicle as it rolled down the hill. Defendant did not present any evidence to refute that testimony. Construing the evidence in the light most favorable to the verdict, the jury could have concluded that defendant used the ruse of brake failure to transfer the contraband to Moore or to allow her to retrieve the drugs from the passenger compartment of the car and place them in an area of her clothing that would not normally be searched by male police officers. Furthermore, the razor blade wrapper found with the contraband bore the same brand as the razor blade in its original package found in defendant’s calculator case. The jury could have deduced that it was the original wrapper for the unwrapped razor blade defendant was carrying. The evidence was sufficient to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt of possession of cocaine with intent to distribute. Accord Alfaro v. State, 199 Ga. App. 761, 762 (2) (406 SE2d 86) (1991); see generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Accordingly, the trial court did not err in refusing to direct a verdict of acquittal in favor of defendant since there was more than spatial proximity connecting the defendant to the contraband. Ellis v. State, 164 Ga. App. 366, 371 (11) (296 SE2d 726) (1982); cf. Murrell v. State, 200 Ga. App. 231, 232 (407 SE2d 460) (1991) (holding that there was insufficient evidence to support the jury’s determination that defendant had actual possession of the contraband found in his sister’s purse); Crenshaw v. State, 183 Ga. App. 527 (1) (359 SE2d 419) (1987) (no evidence connecting defendant with cocaine found strapped to the body of a man who was presumably defendant’s travelling companion).

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A1290.
    JACOBSON v. THE STATE.
    (412 SE2d 859)
   Pope, Judge.

Defendant Ronald Richard Jacobson was convicted of kidnapping with bodily injury, aggravated assault and aggravated sodomy. The trial court merged the aggravated assault and kidnapping charges for the purpose of sentencing. Defendant appeals the denial of his motion and amended motion for new trial.

1. Defendant first challenges the sufficiency of the evidence. The victim testified that the defendant, whom she had previously dated, entered the Golden Pantry Convenience Store at Highway 142 and Interstate 20 where she was working at approximately 4:00 a.m. on January 6, 1990. Another employee was in the store at the time and saw the defendant drive up but left when the victim indicated she knew the defendant. Defendant entered the store and purchased a pack of cigarettes; he then came around the counter to where the victim was standing and told her she was going with him. The victim refused and defendant told her he had a knife; the victim then felt something which she described as a stinging sensation on the side of her head and when she reached up and touched her head she saw that there was blood on her hand. Defendant dragged her outside and put her in his truck and drove away from the store. Once on 1-20 the defendant told the victim to undress. The defendant hit the victim several times, grabbed her by her hair and forced her to put her mouth on his penis while he continued to drive. Defendant next stopped at a rest area and raped the victim. After they got back in the truck and back on the highway, defendant again stopped the truck and took the victim into a wooded area where he unsuccessfully tried to put his penis in her anus. The defendant and the victim got back in the truck and defendant drove to Wesley Chapel Road where he parked behind a van. Defendant again raped the victim and then placed his penis in her anus, while inserting a flashlight into her vagina. Defendant then forced the victim to place her mouth on his penis. Following these acts, defendant got back on 1-20 and allowed the victim to dress. Defendant continued to hit the victim and at one point tried to choke her because, as the defendant explained to the victim, he feared she would tell somebody about the attack if he let her leave. The victim assured the defendant she would not tell anyone about the attack and the defendant threatened to kill her if she did. While travelling on I-20 the truck ran out of gas; when defendant left to get gas the victim made her way to a nearby house where police and an ambulance were summoned. The owner of the house testified that the victim arrived at his house between 5:00 and 6:00 a.m. bleeding very badly and that she told him she had been kidnapped and raped. The victim testified she did not originally identify the defendant as the person who had committed the crimes against her because she was afraid that he would kill her. The victim did, however, subsequently identify the defendant as her assailant. Robert Knight, the employee who was with the victim in the store the night of the attack also identified the defendant as the person who entered the store on that date and was identified by the victim as her former boyfriend.

Defendant also testified at trial and denied the charges against him, stating that he had been at his girl friend’s home in the Chattanooga, Tennessee/Rossville, Georgia, area at the time of the incident. His girl friend’s mother and his girl friend also testified that defendant was at their home at that time. Defendant explained that his pretrial statement to police that he was “at home” at the time of the incident referred to his girl friend’s home and not his home in Atlanta. Defendant also testified the reason he told police that his roommate left for work at 6:45 the morning of the incident was because that was the time his roommate customarily left for work, not because he witnessed his roommate leaving for work that particular morning.

“ ‘It is the function of the jury to determine the credibility of the witnesses, including that of the defendant. The jurors must weigh and resolve any conflicts presented by the evidence. The appellate court must view the evidence in the light most favorable to the jury’s verdict. (Cit.)’ King v. State, 157 Ga. App. 733, 734 (1) (278 SE2d 491) (1981). The evidence presented at trial was sufficient to enable any rational trier of fact to find [defendant] guilty beyond a reasonable doubt of the [crimes] charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Rayburn v. State, 194 Ga. App. 676 (1) (391 SE2d 780) (1990). Accord Seidel v. State, 197 Ga. App. 14 (1) (397 SE2d 480) (1990).

2. (a) Defendant next contends his character was improperly injected into evidence by testimony that he turned himself in to the pardons and parole office on the request of his parole officer. The record shows the testimony concerning defendant’s turning himself in to the pardons and parole office was elicited by defense counsel on cross-examination of a State’s witness in an apparent attempt to show defendant voluntarily surrendered to authorities. On rebuttal, the State questioned the witness concerning whether defendant voluntarily turned himself in or whether he was requested to come in. The witness responded that defendant was requested to come in by his parole officer. Clearly the State was entitled to question further the witness concerning whether the defendant voluntarily turned himself in to authorities, once the defendant initiated this line of inquiry! “ ‘(A) party will not be heard to complain of error induced by his own conduct. . . . (Cits.)’ [Cit.]” Littlefield v. State, 197 Ga. App. 343, 344 (2) (398 SE2d 375) (1990). Moreover, “[t]his court has previously held that a passing reference to a defendant’s record does not place his character in evidence. [Cits.]” Johnson v. State, 256 Ga. 604, 605 (2) (351 SE2d 623) (1987).

(b) Defendant next contends his character was improperly injected into evidence by testimony from a State’s witness concerning defendant’s in-custody statement that he had active, infectious genital herpes at the time the crime was committed and by questions by the State while cross-examining the defendant concerning whether defendant knew “what AIDS is.” Again we find no error. The record shows the testimony relating to defendant’s in-custody statement was admitted without objection and after defense counsel stipulated that the statement had been voluntarily made. Likewise, the defendant did not object or move for a mistrial in response to the questions propounded by the State now challenged on appeal. “ ‘Objections not raised at trial cannot be raised for the first time on appeal, as they are deemed waived. (Cit.)’ Fancher v. State, 190 Ga. App. 438, 439 (1) (378 SE2d 923) (1989).” Hight v. State, 195 Ga. App. 727, 730 (6) (394 SE2d 636) (1990).

3. Defendant also contends the in-court identification of defendant by Robert Knight was tainted by an illegally suggestive pretrial identification of defendant by the witness. Specifically, defendant argues the pretrial identification by the witness was based “upon a single photo viewing of [defendant’s] driver’s license photo, and no others.” As to this issue, the record shows one of the investigating officers testified that the witness made a statement and “gave” him a possible suspect. The officer also testified that he obtained a photograph of the defendant from the driver’s license section of the Georgia State Patrol headquarters and that the photograph was used in his investigation of the crime. The officer did not testify that Knight identified the suspect from the driver’s license, or even that the driver’s license photograph was shown to Knight. “ ‘We will not presume error from a silent record. The defendant has the burden of showing error affirmatively by the record and this burden is not discharged by recitations in the brief. [Cit.]’ [Cit.]” Williams v. State, 188 Ga. App. 496, 499 (3) (373 SE2d 281) (1988).

4. Defendant next contends the trial court erred in admitting a summary of defendant’s out-of-court statement which had not been provided to him upon request as required by OCGA § 17-7-210. As to this issue, the record shows defendant was provided with a summary made by one of the officers who interviewed him and that the officer was allowed to read the summary to the jury without objection by the defendant. See Division 2 (b), supra. On rebuttal, another investigating officer testified that he also made a summary of defendant’s statement and defendant objected to the admission of this statement on the ground that it had not been provided to him pursuant to his request under OCGA § 17-7-210. The trial court overruled defendant’s objection and found that testimony concerning the second statement was admissible. Defendant did not renew his objection or move for a mistrial at this time. “A litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal.” (Citations and punctuation omitted.) Pressley v. State, 197 Ga. App. 270, 271 (398 SE2d 268) (1990). Moreover, although the record reveals the officer testified he had compared the two summaries and they were “essentially the same,” it does not appear, contrary to defendant’s enumeration of error on appeal, that the second summary actually was admitted into evidence at trial. Consequently, we find no merit to this enumeration.

5. Defendant argues his trial counsel was ineffective. “The bench mark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. In order to prevail on an ineffectiveness claim, a convicted defendant must show (1) that counsel’s performance was deficient, i.e., that counsel’s performance was not reasonable under all the circumstances, and (2) that this deficient performance prejudiced the defense, i.e, that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. The complaining defendant must make both showings.” (Citations and punctuation omitted.) Richardson v. State, 194 Ga. App. 358, 358-359 (390 SE2d 442) (1990).

(a) Defendant first contends his trial counsel was ineffective because he failed to object when defendant’s character was wrongfully placed into evidence. See Division 2, supra. However, as held in Division 2 (a), “a passing reference” to a defendant’s prior criminal record does not place his character in evidence. Moreover, although defendant contends on appeal that his trial counsel should have objected to testimony concerning sexually transmitted diseases because this testimony made defendant appear promiscuous (see Division 2 (b)), it is clear from defendant’s testimony that part of his trial strategy was to convince the jury that he could not have committed the acts with which he was charged because at the time these acts were committed he had an active case of genital herpes. “This court has repeatedly held that trial strategy and tactics do not equate with ineffective assistance of counsel.” (Punctuation omitted.) Foreman v. State, 200 Ga. App. 400, 401 (3) (408 SE2d 178) (1991).

(b) Defendant’s contention that trial counsel was ineffective because he failed to renew his objection and preserve the record for appeal after a photographic Identikit was admitted into evidence is without merit in that defendant fails to specify how he was harmed by the introduction of the Identikit. Defendant further contends his trial counsel was ineffective because he failed to preserve the issue of the voluntariness of defendant’s pretrial oral statement, failed to preserve his objection to or ask to review the “second” summary of defendant’s statement, failed to renew his objection to testimony concerning explanations for the crime scene and waived his right to object to the trial court’s charge to the jury. These arguments likewise must fail because defendant does not say how he was harmed by trial counsel’s inactions.

(c) As stated in Division 3, the record fails to support defendant’s argument on appeal that defendant was identified by Knight after an improper pretrial photographic display. Consequently, defendant’s contention that his counsel was ineffective because he failed to object to Knight’s trial testimony concerning his identification of the defendant also is without merit.

(d) Defendant also maintains he was prejudiced because the trial court rebuked and admonished defense counsel for wrongfully questioning the victim about her “relationship” with a witness and because defense counsel argued to the jury that the victim had been committed to “GMHI.” The transcript shows that, although there was extensive discussion about trial counsel’s use of the word “relationship” in questioning the victim, the jury was not present during this discussion. Although the trial court subsequently instructed the jury that they were not to infer a sexual or romantic relationship from the use of the word “relationship,” we fail to see how this instruction prejudiced the defendant. Likewise we fail to see how the defendant was prejudiced by trial counsel’s erroneous statement in closing argument that the victim had been committed to “GMHI” for a few days when the defendant testified he had visited the victim shortly before the incident because she was “talking suicide” and had “a history of mental problems.” Moreover, any “rebuke” from the court concerning trial counsel’s erroneous statement occurred outside the presence of the jury, and thus could not have prejudiced the defendant.

“In determining the effectiveness of counsel, this court looks to the totality of the representation provided by counsel. A defendant’s right to effective assistance of counsel does not guarantee errorless counsel or counsel judged ineffective by hindsight, but counsel . . . likely to render and rendering reasonably effective assistance.” (Citation and punctuation omitted.) Richardson, supra at 361. “ ‘Although arguendo (defendant’s) representation may have been less than perfect, there is no indication in the record that the conduct of (his) counsel met the Strickland (v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)) criteria denoting ineffective assistance. A defendant is entitled not to perfect representation but to “reasonably effective assistance.” See Gabler v. State, 177 Ga. App. 3, 6 (338 SE2d 469) (1985). The burden is on the party alleging error to show it affirmatively by the record, and when he does not do so, the judgment is assumed to be correct and must be affirmed. Griner v. State, 192 Ga. App. 283 (384 SE2d 398) (1989).’ Anderson v. State, 197 Ga. App. 54, 55 (397 SE2d 557) (1990). ‘ “ ‘A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. . . .”” (Cit.) The trial court’s finding in the instant case is not clearly erroneous. Harris v. State, [198 Ga. App. 503 (402 SE2d 62) (1991)].” Foreman, supra at 401.

Decided November 5, 1991.

Steven A. Hathorn, for appellant.

Alan A. Cook, District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A1296.
    BORDERS v. THE STATE.
    (412 SE2d 284)
   Cooper, Judge.

Appellant was convicted by a jury of two counts of voluntary manslaughter and appeals from the denial of his motion for new trial. Appellant raises as his sole enumeration the insufficiency of the evidence to support the conviction.

“On appeal of a criminal conviction, the evidence is to be viewed ‘in the light most favorable to the prosecution’ (i.e., in the light most favorable to the jury’s determination that the defendant is guilty), not in the light most favorable to the defendant.” Adams v. State, 255 Ga. 356, 357 (338 SE2d 860) (1986). Viewed in a light most favorable to the verdict, the evidence is as follows: Andrew and Melvin Bush, brothers, were outside their mother’s apartment, near their car. A car driven by appellant then entered the apartment complex and passed the Bush brothers. Appellant drove his car around a circle in the complex and again passed the Bush brothers on the way out of the complex. At that point, there were words spoken between the Bush brothers and appellant, although the witnesses gave varying accounts of the exact language used. In any event, after the exchange, the Bushes got in their car, sped up to appellant’s car, passed it and cut in front of it. Both cars then stopped, and the passenger in the Bushes’ car, identified by a witness as Melvin Bush, got out of the car, walked up close to appellant’s car and was shot three times. A witness testified that the passenger did not put his hands into appellant’s car. After the shooting, appellant began to drive off when the driver of the Bushes’ car, identified by a witness as Andrew Bush, got out of the car and walked toward appellant’s car but did not reach the car. Andrew was then shot once, and appellant’s car drove off. Both Bush brothers died from gunshot wounds to the chest. A witness testified that neither victim ever put his hands in his pockets nor inside his pants or shirt, and that, as far as the witness could observe, neither victim had anything in his hands. Appellant later turned himself in to the police and gave a statement, in which he admitted shooting the Bushes but claimed that it was in self-defense. Appellant stated that Melvin tried to hit him through the window of the car, and as he was blocking Melvin’s punches, he shot Melvin. Then, appellant stated that Andrew approached his car and raised his arm. Thinking Andrew had a gun, appellant shot Andrew. Appellant said that the Bushes had been threatening him for a while over a woman that appellant and Andrew had dated, and appellant had heard that Andrew had a gun and had said that he was going to get appellant. No weapons were found on either victim or in their car; however, blood tests did reveal the presence of cocaine in their systems. The woman who had dated both appellant and Andrew Bush testified at trial that several weeks before the shooting, appellant called her and told her to tell Andrew to meet him at a certain location because appellant was going to kill Andrew. Also, an acquaintance of both appellant and the Bushes testified that appellant told him that appellant was going to get back at Andrew if he continued to go out with the woman and if Melvin got in the way he would get Melvin also. Appellant showed this acquaintance a gun similar to the gun used to kill the Bushes. After appellant gave his statement to the police, a revolver was recovered from appellant’s brother’s truck, and tests showed that the bullets that killed the Bushes were fired from this gun.

“ ‘A person commits the offense of voluntary manslaughter when he causes the death of another human being, under circumstances which would otherwise be murder, and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person; however, if there should have been an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, of which the jury in all cases shall be the judge, the killing shall be attributed to deliberate revenge and be punished as murder . . . .’ [OCGA § 16-5-2] ‘When a homicide is neither justifiable nor malicious, it is manslaughter, and if intentional, it is voluntary manslaughter.’ [Cit.]” Syms v. State, 175 Ga. App. 179 (1) (332 SE2d 689) (1985). Appellant contends that the state did not prove the absence of self-defense beyond a reasonable doubt. See State v. Shepperd, 253 Ga. 321 (320 SE2d 154) (1984). Despite appellant’s own statement and the evidence of cocaine in the victims’ systems, the jury was not required to believe appellant’s claim of self-defense. See Daniels v. State, 172 Ga. App. 315 (1) (323 SE2d 229) (1984). “The evidence adduced in the trial of the instant case would authorize a rational trier of fact to find the elements of voluntary manslaughter, and the absence of self-defense, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979); [cit.]” Syms, supra at 180. Accordingly, the court did not err in denying appellant’s motion for new trial.

Decided November 5, 1991.

Albert M. Pearson III, for appellant.

Harry N. Gordon, District Attorney, Steve C. Jones, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A1316.
    MEYER v. THE STATE.
    (412 SE2d 575)
   Cooper, Judge.

Appellant, a former deputy sheriff, was convicted on two counts of cruelty to inmates, two counts of simple assault and one count of violation of oath of public office for the assault of two inmates in the Floyd County jail with a stun gun. This appeal followed the denial of appellant’s motion for new trial.

1. Appellant’s first two enumerations of error charge that the State did not establish that a stun gun used at trial for demonstration purposes was sufficiently similar to the weapon actually used by appellant and that appellant was prejudiced by the demonstration of the stun gun before the jury. At trial, the prosecutor showed a stun gun, which had no connection to either of the assaults in question or to appellant, to several witnesses to establish their familiarity with such a weapon. As the gun was activated, witness after witness testified that the sound emitted by the weapon in court was the same sound heard during appellant’s assaults of the inmates. Ultimately however, relying on Jones v. State, 190 Ga. App. 416 (2) (379 SE2d 189) (1989), the trial court declined to admit the gun into evidence. In Jones, this court recognized the long-standing principle that “ ‘articles which are similar to ones used in a crime but are not identical are nevertheless admissible.’ [Cits.] However, . . . the weapon in question must be one in possession of or belonging to the accused and [not] . . . a gun which merely resembled the description given by the victim.” Id. at 417. Thus, the trial court was correct in declining to admit the weapon in evidence; however, it does not necessarily follow that the testimony regarding the stun gun and the demonstration of the weapon prejudiced appellant and required a mistrial. The evidence of appellant’s guilt, including appellant’s admission that he used a stun gun on both victims, was so overwhelming that even assuming error, it is highly probable that such error did not contribute to the verdict. McCoy v. State, 190 Ga. App. 258 (4) (378 SE2d 888) (1989). Moreover, “the record shows that appellant ‘admitted possession of a [stun gun], described it and pointed out the ways in which it was dissimilar from the one offered in evidence. Under these circumstances, there was no harmful error. [Cits.]’ [Cit.]” Mattox v. State, 196 Ga. App. 64 (2) (395 SE2d 288) (1990).

Decided November 5, 1991.

Barbara J. Gale, for appellant.

Stephen F. Lanier, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

2. Appellant contends that the trial court erred in permitting the sheriff to testify as an expert with regard to the use of stun guns; that the sheriff’s testimony was tainted by bias and an interest in the outcome of the case; and that the court erred in failing to charge the jury on bias and prejudice of a witness and expert testimony. “ ‘It is a matter within the sound discretion of the trial judge as to whether a witness has such learning and experience in a particular area to be deemed expert. [Cit.]’ [Cit.]” Washington v. State, 194 Ga. App. 756 (1) (391 SE2d 718) (1990). A review of the sheriff’s testimony reveals no abuse of discretion, and appellant did not submit a charge on expert testimony. “ ‘[T]his court has held that where there has been no written request to charge, failure to give the charge is not error. (Cits.)’ [Cits.]” Lamb v. State, 196 Ga. App. 665 (3) (396 SE2d 497) (1990). Furthermore, the court’s charge on credibility of witnesses adequately covered the questions of bias and interest in the outcome of the case. See Sims v. State, 197 Ga. App. 214 (6) (398 SE2d 244) (1990).

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A1386.
    JONES v. WARD.
    (412 SE2d 576)
   Cooper, Judge.

Appellant was a construction worker who fell behind in his rent when he was unable to work due to bad weather. Appellant went to the Fulton County Department of Family & Children’s Services (“DFCS”) to apply for assistance in paying his rent, and was assigned to appellee, a DFCS caseworker. Appellant contends that after informing appellee that he had received a late rent notice, appellee instructed him to wait until he received a notice of eviction to actually apply for assistance. Upon receipt of an eviction notice, appellant submitted his application for assistance and gave the notice to appellee. Appellant maintains that appellee assured him that DFCS would take care of the eviction notice. Appellant received a second eviction notice, and appellee allegedly repeated assurances that the matter was being handled. Appellee denied making such statements, and ultimately, appellant was evicted. His belongings were placed on the street, where they were stolen.

Appellant brought an action against appellee individually alleging negligence, bad faith and wanton and wilful misconduct for appellee’s failure to act to prevent appellant’s eviction after she allegedly assumed a duty to intercede on his behalf. Appellant sought damages in the amount of $33,000, the value of his stolen belongings, punitive damages and litigation costs but did not seek retroactive or prospective General Assistance benefits or a review of DFCS’s determination regarding his eligibility. In her answer to the complaint, appellee denied the allegations asserted by appellant and raised as affirmative defenses, appellant’s failure to state a claim upon which relief could be granted and appellant’s failure to exhaust administrative remedies. These defenses were re-asserted in support of appellee’s motion to dismiss which relied upon and included the General Assistance Manual (Manual), which contains the rules governing Fulton County’s general assistance program. In the motion to dismiss, appellee also argued that she owed no duty to appellant to assist him in avoiding eviction. In his responsive brief to the motion to dismiss, appellant objected to the trial court’s consideration of the Manual as a matter outside the pleadings, but requested alternatively, in the event the Manual was considered, that the court also consider supplemental material attached to his brief. Despite appellant’s objection, the trial court dismissed the complaint after concluding that consideration of the Manual was proper because the Manual was made a part of the record, and appellant had ample opportunity to respond to appellee’s references to the Manual. This appeal followed.

1. Appellant contends the trial court erred in dismissing his complaint because he was not provided notice that appellee’s motion to dismiss was being treated as a motion for summary judgment. The motion to dismiss was supported by the Manual, a matter outside the pleadings. “When such matters are considered, ‘the motion shall be treated as one for summary judgment and disposed of as provided in Code Section 9-11-56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Code Section 9-11-56.’ OCGA § 9-11-12 (b). [Cit.]” Barrett v. Wharton, 196 Ga. App. 688, 688-689 (396 SE2d 603) (1990). “OCGA § 9-11-56 (c) requires service of a motion for summary judgment on the opposing party at least 30 days before a hearing. [Cit.] Since ‘the motion to dismiss was converted to a motion for summary judgment . . . [appellant] was entitled to have the notice requirements of OCGA § 9-11-56 (c) . . . met.’ [Cit.]” Id. at 689. Moreover, “[evidence in support of summary judgment] must be filed thirty days before the hearing to be considered on behalf of the movant. [Cit.]” Lynch v. Ga. Power Co., 180 Ga. App. 178 (348 SE2d 719) (1986).

The trial court’s order recites that the matter came on for hearing, although neither the order nor the remainder of the appellate record indicate when the hearing was held. Nevertheless, the motion to dismiss was filed on August 16, 1989; it was supplemented with the Manual on August 17, 1989, and thereafter the parties entered into a joint stipulation to extend the time for appellant’s response until October 23, 1989. “We view the purpose of the 30-day waiting period required by [OCGA § 9-11-56 (c)] as placing the opposing party on notice as to the material relied upon by the movant in support of his motion so that he might have sufficient opportunity to prepare his response.” Benton Bros. Ford Co. v. Cotton States Mut. Ins. Co., 157 Ga. App. 448 (1) (278 SE2d 40) (1981). Appellant’s responsive brief was filed on October 23, 1989. Appellant specifically addressed therein the issues supported by the Manual and filed supplemental materials in opposition, thus demonstrating that appellant had sufficient opportunity to respond as envisioned by the statute. Accordingly, the trial court did not err in considering the Manual and in treating the motion to dismiss as a motion for summary judgment.

2. Appellant also contends the trial court erred in concluding he was not entitled to rely on appellee’s alleged assurances that she or DFCS would intercede to prevent an eviction. The trial court found that although appellant sued appellee individually, his allegation related to her performance of official duties as a DFCS caseworker; that when dealing with public agents, each person must take notice of the agent’s power at his peril; that appellant mistakenly relied on the type of assistance which appellee could provide; and that appellant could not have relied on powers which appellee, by law, could not have performed. We agree.

Appellant correctly recites the duties of a DFCS caseworker as set forth in the Manual: to dispose of applications in a timely and accurate manner and notify the client of the status of the application, but appellant cites no rule or regulation which authorizes caseworkers to intercede in eviction proceedings or take any other action beyond the processing of an application. In our view, appellee’s contention that appellant was charged with knowledge of the scope of assistance which could be rendered to him as described in the Manual is correct. “Persons dealing with a public officer must take notice of the extent of the officer’s powers. [Cit.]” State of Ga. v. U. S. Oil Co., 194 Ga. App. 1, 2 (389 SE2d 498) (1989); OCGA § 45-6-5. Even assuming the promises were made (which appellee denies), appellant was not entitled to rely on such promises as they were beyond the powers conferred upon appellee as described in the Manual. State of Ga., supra. Moreover, the promises would have been based on misrepresentations of law, i.e., promises to perform tasks appellee was not legally authorized to perform, which are not relievable. Knight v. Dept. of Transp., 239 Ga. 368 (4) (236 SE2d 826) (1977).

Appellant argues that appellee’s failure to process his application in timely fashion and failure to notify him of the status of the application resulted in his reliance on her representations to his detriment and that such conduct supported a proper claim for negligence against appellee individually. However, the gravamen of the complaint is not negligent processing of an application, but rather alleged misrepresentations by appellee that she would intercede in appellant’s eviction. Indeed, appellant abandoned any claim based on appellee’s action or inaction in processing his application for general assistance benefits by not exhausting administrative remedies. OCGA §§ 49-4-13; 50-13-19 (a). Furthermore, there is no evidence to indicate that appellant exercised ordinary diligence to prevent the injury of which he complains. See Williams v. Lockhart, 221 Ga. 343 (2) (144 SE2d 528) (1965); Knight, supra.

Finally, appellant argues that even if appellee did not have a duty to assist him in avoiding eviction as an employee of DFCS, she assumed such a duty individually by virtue of gratuitous promises to act on appellant’s behalf which appellee should have realized would induce appellant’s reliance. However, this issue, whether appellee assumed a duty to appellant purely as an individual, outside the scope of her employment, is being raised for the first time in this court. Prior to this appeal, in the complaint and in his response to the motion to dismiss, appellant raised this issue of gratuitous promises giving rise to a duty only in the context of appellee’s employment by DFCS. Therefore, this contention cannot be considered on appeal. Venture Design v. Original Appalachian Artworks, 197 Ga. App. 432 (3) (398 SE2d 781) (1990).

3. Appellant argues that he was not seeking a review of any administrative decision; therefore, the trial court erred in determining, as a basis for dismissing the complaint, that he failed to exhaust administrative remedies. The trial court, by considering the issue of administrative remedies, was viewing the complaint liberally and addressing an arguable claim for lost general assistance benefits; however, since appellant concedes that he is not seeking to recover general assistance benefits, we need not consider the trial court’s determination on this issue because it is not relevant to the claims asserted and relief sought by appellant. Nevertheless, our discussion in Division 2 demonstrates that there was sufficient basis for dismissing appellant’s complaint.

Decided November 5, 1991.

Griffin, Cochrane, Marshall & Eiger, Alma L. White, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Assistant Attorney General, for appellee.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


author: Carley, Presiding Judge.

text:
    A91A1405.
    WATSON v. GEORGIA STATE DEPARTMENT OF EDUCATION CREDIT UNION.
    (412 SE2d 286)
   Carley, Presiding Judge.

Appellee-plaintiff brought suit, seeking to recover on a promissory note executed by appellant-defendant. After appellant had answered, cross-motions for summary judgment were filed. Appellant appeals from the trial court’s grant of summary judgment in favor of appellee.

1. The only evidence submitted in support of appellee’s motion was the affidavit of its president. Although the affidavit referred to appellee’s records regarding the note, the records were not attached thereto and they do not otherwise appear of record. Nevertheless, appellee urged below and urges on appeal that, under Murphy v. First Nat. Bank, 182 Ga. App. 788 (6) (357 SE2d 266) (1987), the affidavit of its president was sufficient to meet its evidentiary burden as the movant for summary judgment.

“ ‘Where records relied upon and referred to in an affidavit are neither attached to the affidavit nor included in the record and clearly identified in the affidavit, the affidavit is insufficient. [Cit.] [Appellee] should have attached copies of the records pertinent to [appellant’s] debt. [Cits.]’ The affidavit in question in this case recited that it was based in part on [appellee’s] records, and it is clear from the context that the portion of the affidavit which set out the amount owed by [appellant] was based on [appellee’s] records. Murphy v. First Nat. Bank, [supra,] on which [appellee] relies, is incorrect in holding that the balance owed on a debt could be established on summary judgment by means of a bank president’s affidavit which referred to bank records but did not have the records attached. That holding is contrary to the requirements of OCGA § 9-11-56 (e) and is disapproved.” Taquechel v. Chattahoochee Bank, 260 Ga. 755, 756 (2) (400 SE2d 8) (1991).

Decided November 5, 1991.

James R. Jester, for appellant.

A. Joseph Nardone, Jr., for appellee.

It follows that, under controlling Supreme Court authority, the trial court erred in granting appellee’s motion for summary judgment.

2. Appellee contends that appellant’s answer was not timely filed and that it is, therefore, nevertheless entitled to a default judgment against her under OCGA § 9-11-55. However, appellee’s motion was not at all “predicated on assertions of appellant’s default. The motion did not, [moreover], invoke the applicable statutory provisions. OCGA § 9-11-55, not OCGA § 9-11-56, is the controlling statute on the issue of default. A motion for ‘. . . summary judgment’ is not an appropriate means by which a plaintiff can secure a judgment based upon the defendant’s alleged default. ‘Assuming for the purpose of argument that [appellant] . . . was in default, the proper judgment to be entered was ... a default judgment pursuant to (OCGA § 9-11-55), and not a summary judgment pursuant to (OCGA § 9-11-56), which is inappropriate under the circumstances here.’ [Cit.]” Williams v. Heykow, Inc., 171 Ga. App. 936, 937 (321 SE2d 431) (1984).

3. Construing the evidence most favorably for appellee, appellant likewise failed to demonstrate that no genuine issue of material fact yet remains as to her liability on the note. Accordingly, the trial court correctly denied appellant’s motion for summary judgment.

Judgment affirmed in part and reversed in part.

Beasley, J., and Judge Arnold Shulman concur.


text:
    A91A1449.
    PETERSON v. FIRST NATIONAL BANK OF ATLANTA.
    (412 SE2d 579)
   Carley, Presiding Judge.

Acting pursuant to the power contained in a deed to secure debt, appellee-creditor conducted the foreclosure sale of real property. Appellee then sought confirmation of the sale pursuant to OCGA § 44-14-161. After a hearing, the superior court confirmed the sale and appellant-debtor appeals from that order of confirmation.

1. Appellant enumerates the general grounds, urging that the property had not been sold for its true market value.

The record shows the following: The property was sold at the foreclosure sale for less than appellant had paid two years earlier. However, the superior court was authorized to find that the real estate market was depressed at the time of the foreclosure sale. Alaska Southern Co. v. First Nat. Bank of Gainesville, 161 Ga. App. 241 (288 SE2d 315) (1982). Although it was less than the price that appellant had paid, the price that had been obtained at the foreclosure sale was, in the opinion of appellee’s appraiser, the true market value of the property at the time.

“ ‘ “In confirmation proceedings, the (superior court) sits as a trier of fact, and (its) findings and conclusions have the effect of a jury verdict. (It) hears the evidence and (its) findings based upon conflicting evidence should not be disturbed by a reviewing court if there is any evidence to support them. (Cits.) What value is, or may have been, is a question of fact to be resolved as others are. In so doing, the (superior) court is the judge of the credibility of the witnesses and of the weight to be given the evidence. (Cits.)” (Cits.)’ [Cit.] ‘Although [appellant presents certain challenges] to the means by which [appellee’s] expert arrived at his opinion as to value, the expert provided the court with the basis for his opinions. (As) it appears that his opinion (was) not based on sheer speculation, an appellate court cannot second guess any methodology utilized to reach the opinion. (Cits.)’ [Cit.] ‘The superior court . . . had sufficient data in evidence upon which (it) could apply (its) own knowledge and ideas so as to derive (its) own opinion as to the market value of the project at the time of the sale.’ [Cit.] There being sufficient competent evidence to support the superior court’s conclusion that . . . the price brought at foreclosure was at least the true market [value] of [the property], the enumeration of the general grounds is without merit.” Armstrong v. Cal. Fed. Savings &c. Assn., 192 Ga. App. 508, 509 (2) (385 SE2d 113) (1989). “In this case, the trial court accepted one appraiser’s opinion over another’s, and we will not disturb that decision.” Smith v. Great Southern Fed. Savings Bank, 192 Ga. App. 386, 387 (3) (385 SE2d 1) (1989).

2. Appellant contends that the doctrine of promissory estoppel barred appellee from seeking confirmation of the sale.

Pursuant to the Fair Debt Collection Practices Act, 15 USC § 1692 et seq., the letter from appellee’s counsel which formally notified appellant of the default contained the following notice: “If you dispute the debt in writing to me within 30 days of receiving this notice, I will send you a verification of the debt.” There is considerable doubt whether the federal statute has any applicability to appellant’s debt to appellee. See King v. Amoco Oil Co., 182 Ga. App. 838, 840 (3d) (357 SE2d 291) (1987). In any event, the notice has no bearing whatsoever in this confirmation proceeding. “Except as to the confirmed amount of the sale, [a confirmation order] does not establish the liability of any party with regards to the indebtedness.” Harris & Tilley, Inc. v. First Nat. Bank of Cartersville, 157 Ga. App. 88, 91 (5) (276 SE2d 137) (1981). “ ‘(T)he duty of the court is to test the fairness of the technical procedure of the actual sale and to insure that the sale has brought at least the true market value of the property. The statute does not contemplate that the court shall undertake to decide controversies between the parties as to the amount of the debt or side agreements which could have been the basis of an injunction preventing the foreclosure sale.’ [Cits.] Issues which go to the heart of the underlying obligation itself should be raised within the confines of a subsequent suit for a deficiency judgment. Since appellant’s argument . . . cannot properly be considered within the narrow statutory context of confirmation proceedings, the trial court [did not err]. [Cit.]” Alexander v. Weems, 157 Ga. App. 507-508 (1) (277 SE2d 793) (1981). See also Guthrie v. Bank South, Douglas, 195 Ga. App. 123, 125 (3) (393 SE2d 60) (1990).

Decided November 5, 1991.

Andersen, Davidson & Tate, Gerald Davidson, Jr., William M. Ray II, for appellant.

Hearn & Childers, Eugene M. Benton, for appellee.

Judgment affirmed.

Beasley, J., and Judge Arnold Shulman concur.