text:
    A00A0303.
    ANDERSON v. THE STATE.
    (536 SE2d 540)
   Miller, Judge.

Stanley Bernard Anderson, along with co-defendants Moody and Davis, was tried before a jury and, notwithstanding his defense of justification, was found guilty of two counts of armed robbery, one count of possession of a firearm during the commission of a felony, and one count of possession of a firearm by a convicted felon. Anderson’s motion for new trial was denied, and this appeal followed. In four enumerations of error, Anderson challenges the sufficiency of the evidence and complains the trial court erred in (1) trying him jointly with his co-indictees, (2) expressing or intimating an opinion, and (3) denying a request for continuance to explore fingerprint evidence produced by the State in midtrial. We affirm.

1. For the reasons expressed in Davis v. State, the appeal of Anderson’s co-defendant, the evidence was sufficient under the standard of Jackson v. Virginia to authorize the jury’s verdicts that Anderson is guilty, beyond a reasonable doubt, as a party to the two armed robberies and the possession of a firearm during the commission of a felony. Anderson’s prior burglary conviction authorized his separate conviction for possession of a firearm by a convicted felon, in that as a party to the crimes, he jointly possessed the shotgun used to rob Lawrence Price and Sherry Chaffin. The enumeration of the general grounds is without merit.

2. Anderson next contends the trial court impermissibly expressed or intimated an opinion during the charge to the jury, by bringing “undue attention to the indictment accusing [Anderson] which was misleading and detrimentally prejudicial.” After explaining the possible forms of the verdict, the trial court instructed:

As previously stated . . . , each defendant is charged with three crimes, and each of these charges is represented by an indictment. . . . Now, I’m holding up for the record an indictment naming Stanley Bernard Anderson and accusing him of armed robbery. On the reverse side of this indictment is a form at the top that says, “We, the jury, find the defendant” blank. ... In that blank, you would insert your verdict of guilty or not guilty, and it would be dated and signed by the person you elect as your foreperson. This would represent your verdict concerning that charge in that indictment against that defendant. The next indictment that I’m holding up charges Stanley Bernard Anderson with armed robbery, a second count, and the same would apply there. You would put your verdict for that charge against that defendant on the reverse side at the space indicated, and it would be filled in as guilty or not guilty, depending on what your verdict is, signed and dated by your foreperson, and this would be done for each of the nine indictments, three against each defendant, in this case.

The court’s charge as a whole must be considered to determine whether there was a violation of OCGA § 17-8-57. This Code section is violated only when the court’s charge assumes certain things as facts and intimates to the jury what the judge believes the evidence to be. Here, the trial court simply used two of the indictments against Anderson as examples of where to physically write the verdicts as to each and every charge against each of the three co-defendants. There is no intimation of what those verdicts should be. The court expressly disavowed any intent to bring special attention to Anderson, noting there are three indictments each against Moody and Davis as well. There is nothing subtly coercive or prejudicial by this example, and we conclude there was no violation of OCGA § 17-8-57.

3. Anderson’s justification defense was not compromised by his co-defendants. The trial court did not abuse its discretion in trying the parties jointly.

Decided June 27, 2000.

Boyce, Ekonomou & Atkinson, Michael G. Lambros, for appellant.

Alan A. Cook, District Attorney, for appellee.

4. Anderson’s remaining enumeration, complaining of the denial of his request for a continuance in order to evaluate fingerprint evidence, is also controlled adversely to him by this Court’s opinion in the appeal of co-defendant Davis.

Judgment affirmed.

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

       244 Ga. App. 345, 346 (1) (535 SE2d 528) (2000).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Coursey v. State, 196 Ga. App. 135 (1) (395 SE2d 574) (1990) (whole court). Accord Hindman v. State, 234 Ga. App. 758, 763 (2) (507 SE2d 862) (1998).

       Ordinarily, an objection that OCGA § 17-8-57 was violated during trial will not be reached unless a timely objection or motion for mistrial is interposed. Driggers v. State, 244 Ga. 160, 162 (2) (259 SE2d 133) (1979). But objection to a violation of OCGA § 17-8-57 occurring during the charge to the jury is preserved by reserving exceptions to the charge. Sims v. State, 266 Ga. 417, 418 (2) (467 SE2d 574) (1996).

        Jones v. State, 268 Ga. 12, 15 (5) (483 SE2d 871) (1997).

        Mitchell v. State, 190 Ga. 571, 572 (3) (9 SE2d 892) (1940). Accord Jones v. State, supra at 15 (5).

       Id.

        Davis v. State, supra at 347 (4).

       Anderson’s citations to the record fail to indicate where, if at all, he joined in the purported request for a continuance made by counsel for co-defendant Davis.

       Id. at 347-348 (5). See Saunders v. State, 195 Ga. App. 810, 811 (5) (395 SE2d 53) (1990).


source: Caselaw Access Project

author: Blackburn, Presiding Judge.

license: Public Domain

text:
    A00A0397.
    GEORGIA PUBLIC SERVICE COMMISSION et al. v. ALLTEL GEORGIA COMMUNICATIONS CORPORATION et al.
    (536 SE2d 542)
   Blackburn, Presiding Judge.

The Georgia Public Service Commission (Commission) appeals from the decision of the Superior Court of Fulton County which reversed the Commission’s order reducing the rates that ALLTEL Georgia Communications Corporation could charge long distance providers for use of ALLTEL’s telecommunications network within Georgia. We reverse for the reasons set forth below.

This case having already appeared before this Court and the Supreme Court of Georgia, we repeat the pertinent facts:

The appellants (collectively “ALLTEL”) are related companies and are “Tier 2” local exchange companies [(see OCGA § 46-5-162 (10) (B))] that provide telephone service in mostly rural areas of the state. In 1993 ALLTEL and the Public Service Commission, exercising its regulatory authority, agreed upon a five-year “Regulatory Plan.” Under the Regulatory Plan, the PSC permitted ALLTEL to retain any excessive earnings in exchange for making significant capital improvements. The Plan called for periodic earnings reviews and, if ALLTEL’s rates of return exceeded an allowed return, required ALLTEL to accelerate its capital expenditures. The rationale for this plan was the PSC’s determination that requiring upgraded service was a more appropriate use of ALLTEL’s overcharges than a rate reduction because the area over which ALLTEL has a monopoly suffered from such poor service. In 1995, the Georgia legislature enacted the Georgia Telecommunications and Competition Development Act, [OCGA § 46-5-160 et seq.,] which created a new regulatory model for telecommunications services reflecting the transition to market-based competition. [OCGA § 46-5-161 (a) (1).] The Act allows companies to elect market-based alternative forms of regulation. [OCGA § 46-5-161 (a) (2), (3), (b) (1), (5).] On June 14, 1996, before the conclusion of the agreed-upon Plan, ALLTEL filed a notice that it was electing alternative regulation and specified July 15, 1996, as the date alternative regulation would become effective. On June 21, 1996, the PSC issued a rule nisi directing an immediate review of ALLTEL’s earnings and rates. Following a hearing, the PSC determined that ALLTEL’s return on equity earnings exceeded that authorized and ordered ALLTEL to apply its over-earnings to reduce its intrastate access rates.

ALLTEL Ga. Communications Corp. v. Ga. Pub. Svc. Comm., 270 Ga. 105, 106 (505 SE2d 218) (1998).

Thereafter, ALLTEL sought judicial review of the Commission’s decision. Fulton Superior Court reversed the Commission’s decision finding that the Commission lacked jurisdiction to conduct the rule nisi. This Court reversed the decision of the superior court, holding that:

during the transition period occurring between the date of an incumbent LEC’s [(local exchange company)] election of alternative regulation and the date alternative regulation becomes effective, the [Commission] retains its authority to adjust the existing rates of incumbent LECs so that such rates remain reasonable and just.

Ga. Pub. Svc. Comm. v. ALLTEL Ga. Communications Corp., 227 Ga. App. 382, 385 (489 SE2d 350) (1997). The Supreme Court affirmed the decision of this Court. 270 Ga. 105.

Upon remand, the superior court once again reversed the order of the Commission. On appeal, the Commission enumerates as error the superior court’s finding that: (1) ALLTEL was denied due process; (2) the Commission shifted the burden of proof to ALLTEL; (3) the Commission did not carry its burden of proving that ALLTEL’s existing rates were unjust and unreasonable; and (4) that the Commission order violated OCGA §§ 46-2-25 (d) and 46-5-166 (f) (2). The Commission also contends the superior court erred by ordering that the proceedings against ALLTEL be dismissed, rather than ordering the Commission to correct the alleged errors.

Under the Administrative Procedure Act (APA), “the Commission is the finder of fact and weighs the credibility of the evidence.” Ga. Pub. Svc. Comm. v. Southern Bell, 254 Ga. 244, 246 (327 SE2d 726) (1985). In reviewing the decision of the Commission, the superior court “shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.” OCGA § 50-13-19 (h). However,

[t]he court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) In excess of the statutory authority of the agency; (3) Made upon unlawful procedure; (4) Affected by other error of law; (5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

OCGA § 50-13-19 (h). “Upon farther discretionary appeal to this Court, our duty is not to review whether the record supports the superior , court’s decision but whether the record supports the final decision of the [Commission].” (Punctuation omitted.) Sawyer v. Reheis, 213 Ga. App. 727, 729 (1) (445 SE2d 837) (1994).

1. In several enumerations of error the Commission correctly argues that ALLTEL was given reasonable notice and an opportunity to be heard. The superior court erred by reversing the Commission order on due process grounds, so we reverse the superior court.

The constitutionally-guaranteed right to due process of law is, at its core, the right of notice and the opportunity to be heard. Nix v. Long Mountain Resources, 262 Ga. 506 (3) (422 SE2d 195) (1992). Neither the federal nor the state constitution’s due process right guarantees a particular form or method of procedure, but is satisfied if a party “has reasonable notice and opportunity to be heard, and to present (its) claim or defense, due regard being had to the nature of the proceeding and the character of the rights which may be affected by it.”

Cobb County School Dist. v. Barker, 271 Ga. 35, 37 (2) (518 SE2d 126) (1999).

(a) Although the superior court found that the rule nisi failed to give ALLTEL adequate notice, we disagree. The rule nisi gave reasonable notice, sufficient for ALLTEL to prepare its defense. ALLTEL was notified that the hearing would address its return on equity and that its rates might be adjusted.

Under the APA, a notice must state the issues involved. OCGA § 50-13-13 (a) (2) (D). The rule nisi identified the issue to be considered at the hearing:

You are hereby notified that [the Commission] will hold a hearing ... for the purpose of conducting an earnings review of [ALLTEL]. The scope of the earnings review shall be limited to hearing evidence regarding any appropriate change in the authorized return on equity of the ALLTEL Companies, and any rate adjustments that may be necessary in order to reflect such a change in the authorized return on equity. . . . This earnings investigation shall focus on and be limited to a determination of the level of earnings that should be authorized for the ALLTEL Companies, based upon the appropriate return on equity. ... In the event that the return on equity should be adjusted, then this investigation shall at the same time determine any rate changes that should be made in order to reflect such a change in the earnings.

The rule nisi further identified as the “Matters Asserted and Issues Involved”:

(1) What is the appropriate return on equity that should be adopted at this time, for the authorized earnings level for [ALLTEL]? It is asserted that [ALLTEL’s] earnings level may need to be adjusted to reflect a current, appropriate authorized return on equity. (2) What rate adjustments, if any, should be made in order to reflect the authorized earnings level for [ALLTEL], given the appropriate return on equity? It is asserted that [ALLTEL’s] rates may need to be adjusted to reflect a current, appropriate authorized return on equity.

Thus, the rule nisi expressly and repeatedly advised ALLTEL that the Commission intended to investigate ALLTEL’s authorized return on equity and, if needed, to adjust its rates prior to its election of alternative regulation.

ALLTEL argues erroneously that this notice was insufficient because it did not include a detailed statement of facts and analyses showing that the company was earning an excessive return, a procedure which ALLTEL asserts is typically done. However, due process does not guarantee a particular procedure. Cobb County School Dist., supra. The rule nisi provided reasonable notice.

Furthermore, the notice is eminently reasonable when viewed in the circumstances of the Regulatory Plan, which “was designed to allow the ALLTEL Companies’ high rates to remain in effect for the fixed five-year time period to provide them with the capital necessary to meet their upgrade commitments.” 227 Ga. App. at 386 (2). ALLTEL was still operating under the Regulatory Agreement when it notified the Commission on June 14,1996, of its election of alternative regulation effective 30 days later, the shortest period allowed by OCGA § 46-5-165. Under that statute, upon the effective date of the election, “a company’s rates are deemed ‘just and reasonable’ and not subject to traditional PSC regulatory authority.” 270 Ga. at 106; OCGA § 46-5-165 (d). A company must give at least 30 days notice to the Commission of its election of alternative regulation to provide the Commission the opportunity to review the company’s rates and to take action if the rates are not reasonable. 270 Ga. at 107-108; OCGA § 46-5-165 (c). In this case, the Commission, availing itself of the 30-day window before ALLTEL’s rates were locked in, issued the rule nisi on June 18 and held the hearing on July 9 and 10.

Thus, at the time of the notice, ALLTEL and the Commission knew that under the Plan, ALLTEL had been permitted a higher return and that its election of alternative regulation would lock in its rates if the Commission took no action. OCGA § 46-5-165. Given this context and the rule nisi, ALLTEL had reasonable notice of the Commission’s intent to investigate ALLTEL’s authorized return on equity and to adjust its rates prior to its election of alternative regulation. Cobb County School Dist., supra.

(b) The superior court erroneously found that the Commission’s hearing procedure effectively denied ALLTEL the opportunity to be heard. The superior court based its finding upon the requirement that both parties simultaneously pre-file direct testimony in the few weeks between the notice and the hearing. We disagree.

As an initial matter, the timing of the hearing schedule was not unreasonable. The hearing schedule was dictated, in large part, by ALLTEL’s decision to give the Commission the minimum 30 days notice of its election of alternative regulation. See OCGA § 46-5-165 (c); 270 Ga. 105, affirming 227 Ga. App. 382 (PSC retains the authority to adjust existing rates during the transition period). ALLTEL never requested a continuance of the hearing or an extension to file supplemental testimony or sought to delay its election of alternative regulation. It simply objected to the proceedings by filing a motion to dismiss the rule nisi and a petition for reconsideration. Therefore, we must assume that ALLTEL took issue only with the substance of the proceedings, not its timing.

Additionally, ALLTEL knew what the witnesses would say the week before the hearing. ALLTEL subpoenaed witnesses. At the hearing ALLTEL cross-examined witnesses and chose to offer one witness. Under these circumstances, ALLTEL was not denied an opportunity to be heard on the matters noticed in the rule nisi. Cobb County School Dist., supra.

2. The superior court erred by finding that the Commission shifted the burden of proof at the hearing to ALLTEL and that the Commission failed to carry its burden of proof that ALLTEL’s rates were unjust and unreasonable.

The superior court found that the Commission had shifted the burden of proof to ALLTEL based upon the requirement that both parties simultaneously pre-file direct testimony. In its order the superior court concluded that the pre-filing procedure coupled with the scope of the hearing shifted the burden to ALLTEL and prevented ALLTEL from responding to the Commission’s assertions. However, the superior court gave no basis for its finding, and ALLTEL articulates none in its brief. Neither do we find any basis for the conclusion. The superior court erred in reversing the Commission’s decision on this basis.

The superior court also found that the Commission failed to carry its burden of proof, determining that there was no evidence showing ALLTEL’s rates at the time were unjust and unreasonable; however, it did not reverse the Commission’s decision on this ground. We nonetheless address this finding because the superior court failed to apply the proper standard of review and grossly exceeded the permissible scope of its review.

The superior court must accept the factual findings of the PSC if there is any evidence to support them. . . . [A]s this court then reviews the actions of the PSC, the evidence is again construed in favor of the decision rendered, as it is when it is reviewed by the superior court.

(Punctuation omitted.) Atlanta Gas Light Co. v. Ga. Pub. Svc. Comm., 212 Ga. App. 575, 580 (2) (442 SE2d 860) (1994); Commr. of Ins. v. Stryker, 218 Ga. App. 716, 717 (1) (463 SE2d 163) (1995).

Construing the evidence in favor of the Commission’s decision, Stryker, supra, the Commission presented evidence that ALLTEL was overearning. Using the very methodology for rate adjustment which ALLTEL had approved in the Regulatory Plan, the Commission presented John Legler who testified about an appropriate return on equity of 12.25 percent. Richard Koda testified that, based upon the rate of return on equity supplied by Legler and financial data previously filed by ALLTEL for the year ending 1995, ALLTEL was overearning. Timothy Hopkins testified regarding the disposition of the overearnings. This testimony by the experts is sufficient to satisfy the any evidence standard. Ga. Power Co. v. Ga. Pub. Svc. Comm., 196 Ga. App. 572, 579-580 (5) (396 SE2d 562) (1990). The evidence supported the Commission’s findings that ALLTEL’s rates were unreasonable.

This evidence was overlooked, however, when the superior court, in an inappropriate review of the Commission’s decision, failed to apply the “any evidence” standard, contrary to longstanding precedent. See, e.g., Ga. Real Estate Comm. v. Peavy, 229 Ga. App. 201 (493 SE2d 602) (1997); Miles v. Andress, 229 Ga. App. 86 (493 SE2d 233) (1997); Stryker, supra; Ga. Power Co., supra. Instead, the superior court took on the role of witness, expert witness, and factfinder when it substituted its own findings for that of the Commission. The superior court order questioned the Commission’s reliance on staff witnesses, questioned the expert’s methodology, and questioned the data used by the experts while ignoring completely the existence of the Regulatory Plan which permitted ALLTEL excessive earnings. In so doing, the superior court directly addressed the credibility and weight of the evidence. Under the “any evidence” standard, the superior court should not have weighed the factors considered by the Commission; it should have only determined whether there was any evidence to support the decision. Consequently, the superior court order is reversed as to its findings on the evidentiary matters.

3. The Commission’s order addressing the disposition of the over-earnings violated neither OCGA § 46-2-25 (d), which prohibits rate-making orders with retroactive effect, nor OCGA § 46-5-166 (f) (2) regarding adjustments to intrastate access rates.

After determining that ALLTEL had overearned, the Commission ordered that the ALLTEL Companies apply the overearnings to reduce its intrastate access rates. The Commission further ordered the disposition of the overearnings was:

deemed to reduce the intrastate switched access rates of the ALLTEL Companies from the levels which were in effect immediately prior to July 1, 1996. From the effective date of this order, [July 12, 1996,] the ALLTEL Companies’ first-step access rate reductions, pursuant to OCGA § 46-5-166 (f) (2), shall be a reduction from the new levels set by this Order.

Decided June 27, 2000

Thurbert E. Baker, Attorney General, Robert S. Bomar, Deputy Attorney General, Harold D. Melton, Senior Assistant Attorney General, Thomas K. Bond, John H. Maclean, for appellants.

Long, Aldridge & Norman, Edgar H. Sims, Jr., Bruce P. Brown, Gregory S. Brow, Alan R. Jenkins, for appellees.

Newton M. Galloway, amicus curiae.

The “first step access rate reduction” is part of the process for the phasing down of intrastate rates. For Tier 2 companies which elect alternative regulation, OCGA § 46-5-166 (f) (2) establishes a method by which intrastate rates are phased down to reach parity with interstate rates by July 2000. This Court has previously described the method in Ga. Pub. Svc. Comm. v. ALLTEL Ga. Communications Corp., 230 Ga. App. 563, 565 (497 SE2d 50) (1998). Significantly, a Tier 2 LEC was not entitled to recover the revenue lost thereby until it had elected alternative regulation. OCGA § 46-5-166 (a).

ALLTEL was not entitled to the recovery of revenue lost because of the phase-down pursuant to OCGA § 46-5-166 (f) (2) until its alternative regulation was effective on July 15, 1996. Three days prior to that date, the Commission issued the subject order. Since ALLTEL was not entitled to recovery under OCGA § 46-5-166 (f) (2) at the time, the order did not violate that statute and did not have a retroactive effect in violation of OCGA § 46-2-25 (d).

4. For the reasons set forth above, the superior court order remanding the case to the Commission with direction to dismiss is reversed.

5. The motion to withdraw the appeal is denied. While the parties have settled this case, an appeal can be considered where a case is moot because the error is capable of repetition, yet evades review. Because all similar cases involving the Commission are heard in Fulton County, and the potential for repetition of the trial court’s error is high, we address the issues raised on appeal.

Judgment reversed.

Eldridge and Barnes, JJ, concur.

        ALLTEL Ga. Communications Corp. v. Ga. Pub. Svc. Comm., 270 Ga. 105 (505 SE2d 218) (1998), affirming Ga. Pub. Svc. Comm. v. ALLTEL Ga. Communications Corp., 227 Ga. App. 382 (489 SE2d 350) (1997).


author: Miller, Judge.

text:
    A00A0437.
    ROBINSON et al. v. GEORGIA HOUSING & FINANCE AUTHORITY.
    (536 SE2d 548)
   Miller, Judge.

The Georgia Housing & Finance Authority foreclosed on property that was owned by William Robinson, deceased. The trial court issued a writ of possession for the premises on June 2, 1999, when the appellants (persons in possession of the property) failed to submit payment into the registry of the court by June 1 as ordered. On June 8, the appellants filed a motion for reconsideration and stay of the execution of the writ of possession, and on June 9, the court stayed the June 2 order pending a hearing. On June 16, the court denied the motion for reconsideration and stay and vacated its June 9 order. Robinson filed a notice of appeal on June 23.

1. The Authority argues that this appeal should be dismissed for lack of jurisdiction due to failure of appellants to file a timely notice of appeal. Specifically, the Authority argues that because the June 2, 1999 order was a final judgment, under OCGA § 44-7-56 the notice of appeal should have been filed within seven days of the date the judgment was entered despite the filing of the motion for reconsideration. While it is true that “[a] motion for reconsideration does not extend the time for filing a notice of appeal,” the June 9 grant of the motion to stay the execution of the writ of possession did extend the date for filing the notice of appeal. Therefore, this court has jurisdiction over this appeal as the appellants timely filed the notice of appeal within seven days of the final judgment of June 16.

2. The appellants contend that the court erred in continuing to exercise jurisdiction over Robinson after having been informed of his death. The affidavit of dispossession and summons listed the tenant as “WILLIAM ROBINSON or persons in possession” of the premises. Robinson’s widow received service, and an answer was filed also styled ‘WILLIAM ROBINSON or persons in possession.” OCGA § 9-11-10 permits the use of any name in the caption where a party’s name is not known. This would include “persons in possession.” The use of Robinson’s name in the pleadings is not a ground for dismissal of the action, and because Robinson was deceased, the court exercised jurisdiction only over “persons in possession” of the property as the affidavit and summons plainly use the alternative “or.” Had the appellants desired to have Robinson’s name removed, they could have made a motion to remove him as a party in accordance with OCGA § 9-11-21.

Decided June 27, 2000.

O. Torbitt Ivey, Jr., for appellants.

Lester, Lester & Flynt, James L. Lester, Fowler, Hein, Cheatwood, Passino & Williams, J. Steven Cheatwood, for appellee.

Moreover, the appellants have failed to show how they were harmed as a result of the inclusion of Robinson as a named party. If they wished to contend that service of process was insufficient, then they should have enumerated such as error. Although the appellants did claim insufficiency of service of process in their answer, they did not enumerate the court’s ruling thereon as error on appeal. Furthermore, even if enumerated, we could not evaluate any alleged error on that issue as the hearing on the right of possession was not transcribed and is therefore not included in the record on appeal. This precludes review of jurisdiction as to the “persons in possession,” and we must assume the court correctly found that service of process was sufficient.

Judgment affirmed.

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

       (Citation omitted.) Hardrick v. Morgan, 240 Ga. App. 155 (522 SE2d 742) (1999).

        See Austin v. Carter, 248 Ga. 775, 777 (1) (285 SE2d 542) (1982); Dougherty County v. Burt, 168 Ga. App. 166, 167 (1) (308 SE2d 395) (1983).

       See OCGA § 9-11-21.

       See Swift Loan &c. Co. v. Duncan, 195 Ga. App. 556, 558 (8) (394 SE2d 356) (1990); Henderson v. Colony West, 175 Ga. App. 676, 677-678 (1) (332 SE2d 331) (1985).

       See Regency &c. Owner’s Assn. v. Wilmock, Inc., 237 Ga. App. 193, 194 (514 SE2d 446) (1999).

       Cf. Boles v. Lee, 270 Ga. 454, 456 (3) (511 SE2d 177) (1999); Attwell v. Heritage Bank &c., 161 Ga. App. 193, 194 (2) (291 SE2d 28) (1982).


author: Smith, Presiding Judge.

text:
    A00A0841.
    ROWE v. THE STATE.
    (538 SE2d 452)
   Smith, Presiding Judge.

Leon Marcellus Rowe was convicted on two counts of child molestation and one count of aggravated child molestation. His motion for new trial as amended was denied, and he appeals. We find no error, and we affirm.

1. Rowe first contends that the evidence was insufficient to support the jury’s verdict. The State presented the testimony of the three victims. The first victim, who was 12 at the time of the alleged incident, testified that she was attending day camp and had exited the ladies’ bathroom when Rowe called out to her from the men’s bathroom. She testified that she walked toward him, and he pulled her into the men’s restroom, into a stall, pulled down her shorts and underwear, and “put his penis inside my butt.” Although she said nothing when this activity first began, she testified that after a while she told him to “stop,” explaining that she was only 12. She stated that she did not make an immediate outcry because she was scared.

The second victim, 14 at the time of the alleged incident, knew Rowe socially. She testified that at her invitation Rowe came to her aunt’s house, and she left with Rowe in his car. Sometime later, while the two were inside his car, he began kissing her “so I would stop talking.” According to this victim, Rowe grabbed her neck and pushed her down, eventually having sexual intercourse with her, without her consent.

The third victim was 13 at the time of the alleged incident. She testified that she was visiting the home of a friend when Rowe burst in the door, while the friend was in the shower. According to the victim, after Rowe apparently danced for a short time, he threw her onto the couch and “got on top” of her, and although she tried to push him away, he managed to pull off her pants and underwear, unzip his pants, and have sexual intercourse with her. Rowe denied inappropriate sexual contact with any of the victims.

We find no merit in Rowe’s contention that the evidence was insufficient to convict him.

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant ... no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Citations and punctuation omitted.) Vickers v. State, 241 Ga. App. 452, 453 (527 SE2d 217) (1999). Furthermore, “[t]he testimony of a victim of child molestation or aggravated child molestation need not be corroborated.” (Citations omitted.) Id.

Here, Rowe’s arguments that the victims’ testimony was contradicted and even that one victim’s testimony was so contradictory “as to lack credibility” are unavailing. As stated in Vickers, the jury was the judge of witness credibility, and “[a] jury is authorized to believe or disbelieve all or any part of the testimony of witnesses, and it serves as the arbiter of conflicts in the evidence before it. [Cit.]” Drake v. State, 238 Ga. App. 584, 586 (1) (519 SE2d 692) (1999). The facts as testified to by the victims authorized the jury to convict Rowe of the crimes charged against him, and the trial court therefore did not err in denying his motion for new trial on the general grounds.

2. Rowe contends that the State impermissibly injected evidence of his character into the trial. During direct examination of one of the victims, the prosecutor asked whether she knew the other two victims when she made an outcry against Rowe. After receiving a negative answer, the prosecutor then asked whether she knew “whether anyone else had made a complaint to the police about any sexual assault against them.” The victim answered affirmatively, and the prosecutor instructed her to “tell the jury about that.” The victim answered, “My mom had said that it was two other girls that. . . ,” and defense counsel objected. The trial court sustained the objection, and the State proceeded with the case.

We do not agree with Rowe that reversal is required. First, the prosecutor did not ask whether any other complaints had been made against Rowe, nor did the victim directly answer that anyone had made other allegations against Rowe. But even if an inference arose from this line of questioning that two other individuals had complained about Rowe’s sexual behavior, defense counsel failed to move for mistrial, and error, if any, therefore was not preserved for appeal. See McCannon v. State, 268 Ga. 393, 395 (5) (489 SE2d 801) (1997).

3. Rowe contends he was denied effective assistance of counsel in three respects: trial counsel’s failure to move for a mistrial when the State elicited testimony of bad character as discussed in Division 2; trial counsel’s eliciting evidence of bad character from one of the victims and from Rowe himself; and defense counsel’s “advising and permitting the defendant to testify at trial.”

To prevail on a claim that trial counsel was ineffective, an appellant must show that counsel’s conduct was deficient and that a reasonable probability exists that, but for counsel’s errors, the outcome of the case would have been different. Tenant v. State, 218 Ga. App. 620, 622 (4) (462 SE2d 783) (1995). Trial strategy and tactics do not amount to ineffective assistance of counsel. Id.

Defense counsel testified on motion for new trial that he did not move for mistrial when the State elicited testimony concerning other complaints because he did not believe the testimony “reached the level of prejudicial conduct or statements that would give rise to a mistrial.” Even more importantly, he testified that he thought Rowe “had a very good jury considering our defense and the charges against” Rowe and that he did not believe a mistrial “would have been advantageous to our position.” Based on this testimony, his failure to move for mistrial clearly was a matter of trial strategy. See Aleman v. State, 227 Ga. App. 607, 613 (3) (d) (489 SE2d 867) (1997); McKenzie v. State, 223 Ga. App. 108, 110 (1) (b) (ii) (476 SE2d 868) (1996). Similarly, the record shows that defense counsel’s questions to one of the victims and to Rowe himself, which elicited testimony about Rowe’s nickname and the name of his rap group, were matters of trial strategy intended to elicit possibly unfavorable testimony before the State succeeded in doing so.

Decided June 27, 2000.

Elizabeth C. Calhoun, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Finally, Rowe’s contention that trial counsel was ineffective because he did not prevent him from testifying is, as argued by the State, spurious. A criminal defendant has a fundamental right to testify. See, e.g., Mobley v. State, 264 Ga. 854, 855-856 (2) (452 SE2d 500) (1995). And the decision whether to testify lies solely with the defendant after full consultation with counsel. Washington v. State, 238 Ga. App. 561, 562 (2) (d) (519 SE2d 234) (1999). Trial counsel unequivocally testified that he advised Rowe not to testify but that Rowe insisted on doing so. Indeed, as argued by the State, under the circumstances of this case, trial counsel likely would have been ineffective had he prevented Rowe from testifying.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       We reach this argument despite the fact that Rowe provides no citation to the record or argument, apart from the general statement in his brief that trial counsel elicited evidence of bad character from one of the victims and from Rowe. We would be authorized to consider this contention abandoned under these circumstances. See Court of Appeals Rule 27 (c) (2), (3) (i).


text:
    A00A1297.
    WALTERS v. THE STATE.
    (538 SE2d 451)
   Blackburn, Presiding Judge.

Following a jury trial, Bobby Walters appeals his convictions of rape and aggravated assault. Walters contends that the evidence was insufficient to support the verdict. For the reasons set forth below, we affirm.

On appeal the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility.

Decided June 27, 2000.

Jerry W. Moncus, for appellant.

Kermit N. McManus, District Attorney, Forest L. Miles, Assistant District Attorney, for appellee.

Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990). See also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Walters admitted that he had sex with the victim, but he testified that it was consensual sex and that he paid the victim $40. The victim testified that it was not consensual sex and that Walters attacked her and threatened her with a knife. Two other witnesses testified against Walters regarding similar transactions. Therefore, the issue for the jury was one of credibility, not one of evidence. As issues of credibility are within the exclusive province of the jury, Walters’ convictions are affirmed. See Grant, supra.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.


text:
    A00A0501.
    LYONS v. THE STATE.
    (535 SE2d 841)
   Blackburn, Presiding Judge.

In this interlocutory appeal of a DUI prosecution, Nancy L. Lyons challenges the trial court’s denial of her motion to suppress the results of field sobriety tests, contending that: (1) an admitted videotape of the traffic stop unequivocally contradicted the arresting officer’s testimony regarding the basis of his suspicions and (2) the arresting officer failed to advise Lyons of her rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), prior to administering the field sobriety tests. Because we cannot say that the trial court was clearly erroneous in its decision to deny Lyons’ motion, we must affirm.

When reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.

(Citations omitted.) Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990). Where controlling facts are not in dispute, however, such as those facts discernible from a videotape, our review is de novo. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

The record in this case reveals that Officer Jack Moody, a member of the Gwinnett County Police Department’s DUI Task Force, stopped Lyons for speeding on the night of March 18, 1998. Moody approached Lyons and asked for her driver’s license and proof of insurance. Moody asked Lyons if she had been drinking, and she responded that she had not. Moody then suggested that he might be smelling Lyons’ perfume, rather than alcohol, and Lyons told him that she was wearing a new fragrance.

After initially questioning Lyons, Moody returned to his patrol car and filled out a citation for speeding. While writing the ticket, he received a cell phone call from his wife and told her that he was writing a traffic ticket (for speeding) and was almost finished with the traffic stop. He then returned to Lyons’ vehicle and told Lyons he was giving her a speeding ticket. Moody then told her that he just wanted to be sure that she had not been drinking before he turned her loose and asked her to perform an alco-sensor test. Lyons asked Moody if she was required to take the test, and Moody advised her that all tests were voluntary. Lyons exercised her right not to take the breath test.

At that point, based on Lyons’ refusal to take the alco-sensor test, Moody asked her to step out of the car. He then asked Lyons to perform other field sobriety tests, which Lyons consented to do. The video showing the performance of the field tests has been redacted from the appellate record. Moody testified, however, that Lyons failed these tests and he then arrested her for DUI.

Lyons filed the underlying motion to suppress the results of her field sobriety tests. Although Lyons made numerous motions in the trial court with regard to her stop, including the propriety of a subsequent Intoxilyzer evaluation, the appeal addresses only the trial court’s decision not to suppress the results of Lyons’ field sobriety tests.

1. Relying heavily on a videotape of the stop, Lyons contends that the evidence failed to show that Moody had the appropriate suspicion to investigate her for a DUI violation after pulling her over for speeding. We are constrained by our standard of review to disagree.

At the outset, we point out that it is undisputed that Moody properly pulled Lyons over for speeding; therefore, the efficacy of the initial stop is not in question here. The only question is whether there were articulable facts supporting Moody’s further investigation for DUI.

In general, investigative stops of vehicles are analogous to Terry stops. See Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

While a reasonable investigative stop does not offend against the Fourth Amendment, a Terry stop is subject to strict boundaries regarding duration, intent, and scope. Such a stop has been described by this court as a brief stop, limited in time to that minimally necessary to investigate the allegation invoking suspicion, and limited in scope to identification and limited questioning reasonably related to the circumstances that justified the initiation of the momentary stop.

(Citations and punctuation omitted.) Smith v. State, 216 Ga. App. 453, 454 (2) (454 SE2d 635) (1995). In addition, “[a]n officer who questions and detains a suspect for other reasons [than those precipitating the initial stop] exceeds the scope of permissible investigation unless he has ‘reasonable suspicion’ of other criminal activity.” State v. Blair, 239 Ga. App. 340, 341 (521 SE2d 380) (1999). See Simmons v. State, 223 Ga. App. 781, 782 (2) (479 SE2d 123) (1996).

In this case, therefore, Moody, who initially stopped Lyons for speeding, could detain Lyons for further questioning regarding DUI only if he had a reasonable suspicion of such criminal activity. Simmons, supra. In his testimony, Moody explained that his suspicion that Lyons was drinking arose shortly after he stopped her. He cited as support for his suspicion Lyons’ bloodshot eyes, her thick speech, her inability to locate her insurance card, and the odor of an alcoholic beverage on her breath. Moody averred that based on these overt physical clues of possible inebriation, he developed a reasonable articulable suspicion precipitating his request that Lyons perform field sobriety evaluations. Moody did not explain why in view of the facts to which he later testified, he curtailed his investigation and returned to his vehicle to write a speeding ticket. All of those observations had been made prior to Moody terminating his investigation and returning to his vehicle to write a speeding ticket and have a telephone conversation with his wife. Moody’s conduct, when he returned to Lyons’ car to present her with the speeding ticket, is puzzling. Almost as an afterthought, he said that he just wanted to be sure that she had not been drinking before he turned her loose. Yet he testified that he had previously determined that her eyes were bloodshot, her voice was thick, that she could not locate her insurance card, and that her breath smelled of an alcoholic beverage, which facts created a suspicion that she was DUI. He also testified, however, that he believed her when she said she had not been drinking after he made these observations and before he concluded his investigation and returned to his vehicle to write Lyons a speeding ticket.

This scenario would have supported a conclusion by the trial court that the officer’s testimony was not credible, there was no articulable suspicion, and that the request for the breath test was simply a standard inquiry following a non-DUI traffic stop. Before police officers are authorized to conduct an investigation of citizens for DUI, there must be an articulable suspicion that the driver is driving under the influence. Non-DUI stops cannot be used as a screening device for DUI offenders absent specific facts authorizing such inquiry in each case. Here, the trial court accepted Moody’s testimony and denied Lyons’ motion to suppress.

Lyons’ contention that the videotape reviewed by the trial court and Moody’s own testimony belie Moody’s account of the stop, though supported by some evidence in the record, does not require a reversal of the trial court’s ruling. With regard to Moody’s factual account of the stop, Lyons argues that the tape proves that her voice was not thick, as Moody described it. On this point, using the de novo standard of Vansant, supra, we agree. Our review of that portion of the videotape during which Officer Moody contends he developed an articulable suspicion of Lyons’ intoxication so as to authorize further questioning and a request for field sobriety tests reveals that Lyons spoke clearly when Moody communicated with her.

The videotape, however, does not directly contradict Moody’s testimony that Lyons’ eyes were bloodshot, although one must wonder how he could make that determination looking into a dark car at night, as was the case. This conclusion was reached prior to Lyons exiting her car. There is no visible footage of Lyons’ search for her insurance card. On cross-examination, Moody admitted that he simply observed an insurance card which Lyons passed over. He acknowledged that he did not look at the card closely as Lyons thumbed through her documents and that he did not know if the insurance card he saw was for the subject vehicle or if it might have been either an expired card or a card for her husband’s car. Nonetheless, on these issues, the trial court’s ruling was in part dependent upon Moody’s credibility and the weight the trial court put upon the evidence. We must therefore defer to the findings of the trial court, as issues of disputed fact, the veracity of a witness, and the weight of the evidence are within its province.

Finally, Lyons argues that the videotape shows that Moody lacked articulable suspicion that she was driving under the influence of alcohol because, after asking Lyons whether she had been drinking, he postulated on tape that the odor he was smelling might be Lyons’ perfume. Moody testified, however, that he had already reached the conclusion that Lyons had been drinking at the time he asked about her perfume and that he was trying to see if she would tell him the truth. The incongruity of this testimony has been previously discussed. This court is not free' to substitute its judgment for the trial court’s determination that Moody was credible and that he had an articulable basis for the inquiry concerning DUI. See Cann-Hanson v. State, 223 Ga. App. 690, 691 (1) (478 SE2d 460) (1996).

Although, pursuant to our standard of review, we affirm the trial court’s decision in this case. We must point out, however, that we are nonetheless troubled by what happened here. Moody’s testimony is riddled with inconsistencies and mischaracterizations which make his behavior suspect. Moody, himself, testified that he believed Lyons when she told him that she had not been drinking and that it was contrary to his training to wait until after he had filled out a speeding citation to pursue a DUI investigation. Trial courts must closely scrutinize the facts of every case to ensure that reasonable suspicion actually was present at the initiation of the DUI investigation and was not invented after the arrest to cover a scheme of screening routine traffic stops without observing constitutional safeguards.

2. Lyons further contends that the results of Moody’s DUI investigation should be suppressed because she was not given her Miranda rights prior to the field sobriety tests. We disagree.

As a general rule, no Miranda warnings are required while the investigating officer conducts preliminary questioning or field sobriety tests or advises a defendant of his right to an independent test. But because state law affords greater protection against self-incrimination than the federal constitution, after arrest, Miranda warnings must precede questioning during field sobriety tests.

(Citations omitted.) State v. Warmack, 230 Ga. App. 157, 158 (495 SE2d 632) (1998). If a defendant is under arrest, the results of field sobriety evaluations will be inadmissible unless the defendant has previously been informed of his Miranda rights in accordance with OCGA § 24-9-20 (a). State v. O’Donnell, 225 Ga. App. 502, 504 (2) (484 SE2d 313) (1997).

Here, Lyons argues that, at the time Moody asked her to perform the field sobriety evaluations, she was in custody and her Miranda rights were triggered. However,

“[flor the proscriptions of Miranda[, supra,] to apply, 'a person must be taken into custody or otherwise deprived of his freedom of action in some significant way.’ Lobdell v. State, 256 Ga. 769, 773 (6) (353 SE2d 799) ((1987)). Tn determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation, but “the ultimate inquiry is simply whether there (was) a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” (Cits.)’ Stansbury v. California, 511 U. S. 318, 322 (114 SC 1526, 128 LE2d 293) ((1994)).” McConville v. State, 228 Ga. App. 463, 465 (491 SE2d 900) (1997). “The test for determining whether a person is ‘in custody' at a traffic stop is if a reasonable person in the suspect’s position would have thought the detention would not be temporary. Berkemer v. McCarty, 468 U. S. 420, 442 (104 SC 3138, 82 LE2d 317) (1984).” (Emphasis supplied.) Hughes v. State, 259 Ga. 227, 228 (378 SE2d 853) (1989); see also Price v. State, 269 Ga. 222 (498 SE2d 262) (1998); State v. O’Donnell, [supra at 503 (1)].

State v. Kirbabas, 232 Ga. App. 474, 475 (502 SE2d 314) (1998).

Georgia case law dealing with similar factual circumstances does not support Lyons’ argument that a reasonable person in her position would believe that she was under arrest at the point that Moody asked her to step out of her car and perform field sobriety tests. “For seizure of a person ‘there must be either the application of physical force, however slight, or, where that is absent, submission to an officer’s “show of authority” to restrain the [defendant’s] liberty.’ ” Id. at 477. Lyons agreed to step out of her car and submit to field sobriety tests after she had just refused to perform an alco-sensor test. She had asked if she was required to take the breath test and had been informed that all tests were voluntary. Therefore, Lyons had been given explicit notice that her submission to testing was voluntary. Based upon the trial court’s acceptance of Moody’s testimony as credible, we cannot say that the trial court erred in denying Lyons’ motion to suppress.

Contrary to Lyons’ arguments, under current Georgia law, Moody’s testimony that she was not free to leave does not change this result, for Moody took no overt action which would make Lyons reasonably believe that she was under arrest rather than being the subject of an investigatory stop.

Decided June 15, 2000

Reconsideration denied June 28, 2000

William C. Head, for appellant.

Gerald N. Blaney, Jr., Solicitor, Jeffrey P. Kwiatkowski, Emilien O. Loiselle, Jr., Assistant Solicitors, for appellee.

[A]bsent the officer making any statement that would cause a reasonable person to believe that she was under arrest and not temporarily detained during an investigation, the officer’s “belief” that probable cause exists to make an arrest does not determine when the arrest is effectuated until the officer overtly acts so that a reasonable person would believe she was under arrest.

Kirbabas, supra at 476.

An investigatory stop is not automatically an arrest for Miranda purposes simply because an officer is armed. See Franklin v. State, 143 Ga. App. 3, 5 (2) (237 SE2d 425) (1977). Here, Lyons had agreed to submit to field sobriety tests, which she understood to be voluntary. She was not therefore under arrest.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

       Using radar, Moody clocked Lyons’ speed at 78 mph in a 55-mph zone.


author: Johnson, Chief Judge.

text:
    A00A0031.
    ALLSTATE INSURANCE COMPANY v. BALDWIN et al.
    (536 SE2d 558)
   Johnson, Chief Judge.

Allstate Insurance Company filed this interlocutory appeal from the trial court’s order granting Rufus Baldwin’s motion to add a defendant to a renewal action and denying Allstate’s motion for summary judgment. Because no valid renewal action was filed, the trial court erred in allowing the plaintiff to add a defendant to the purported action after the six-month renewal period expired. Therefore, we reverse the trial court’s order.

On July 8, 1992, while driving his pickup truck, Baldwin was involved in a collision with a car being driven by Wendy Wisenbaker. In February 1994, Baldwin sued Wisenbaker for injuries he allegedly sustained in the collision. At sometime during 1994, Wisenbaker’s insurance carrier, State Casualty Insurance Company, became insolvent. Baldwin’s uninsured motorist insurance carrier, Allstate, had not been named or served in the suit. The case remained pending for over four years when, on March 20, 1998, Baldwin voluntarily dismissed the action against Wisenbaker without prejudice. On September 14, 1998, Baldwin and his wife attempted to recommence the action by filing suit against their uninsured motorist insurance carrier, Allstate. They failed to name Wisenbaker or any other entity as a defendant.

Allstate moved for summary judgment, arguing that the purported renewal action was invalid because it was filed solely against Allstate, when Allstate was not a party to the original action. Allstate urged that since the alleged tortfeasor named in the original complaint, Wisenbaker, was not named in the purported renewal action, the action was not valid. And because it was not a valid renewal action, any defect therein could not be cured by amendment.

On March 1, 1999, nearly six months after the time for filing a renewal action expired, but before the trial court ruled on Allstate’s motion for summary judgment, Baldwin moved to add Wisenbaker as a defendant. The trial court allowed Baldwin to add Wisenbaker as a defendant and denied Allstate’s motion for summary judgment, finding that the addition of Wisenbaker made the second action a valid renewal action.

.1. Allstate contends that the trial court erred in denying its motion for summary judgment when the purported renewal action was not valid because it was not filed against the original defendant, and such a defect could not be cured by amendment. We agree.

OCGA § 9-2-61 (a) provides, in relevant part, that when a case has been commenced within the applicable statute of limitation and the plaintiff dismisses the case, it may be recommenced either within the original limitation period or within six months after the dismissal. To be a valid renewal of an original suit, so as to suspend the running of the statute of limitation, the new petition must be substantially the same as the original as to the essential parties. The renewal statute may not be used to suspend the running of the statute of limitation as to defendants different from those originally sued.

Baldwin attempted to recommence his personal injury action within six months after dismissing it. However, in refiling his action, Baldwin neglected to name the one essential party named in the first action, Wisenbaker. Wisenbaker was the alleged tortfeasor and the only party sued in the original suit. Filing an action against Allstate was not the equivalent of recommencing an action against Wisenbaker. Besides never being a party to the original suit, Allstate did not occupy the same position as Wisenbaker. Allstate was not the tortfeasor and could be held liable only on a derivative basis. And, unlike Wisenbaker, Allstate, as an uninsured motorist insurance carrier, could not be forced to become a party to either tort action; All-state could opt to participate in the proceedings in its own name, in Wisenbaker’s name, or in both or could do nothing. Thus, the new petition was not substantially the same as to the essential parties. Accordingly, the action purportedly filed by Baldwin against Allstate was not a valid renewal action.

2. It is unnecessary to address the issue of whether the trial court properly applied the amendment and relation-back provisions of OCGA §§ 9-11-15 (c) and 9-11-21 in the purported renewal action. Baldwin failed to file a valid renewal action within the six months permitted by the statute. That the trial court has authority to allow amendments to pleadings and to permit relation-back of the amendments presupposes the existence of a valid action. Here there was no valid action pending when Baldwin sought to add Wisenbaker as a defendant.

Furthermore, we note that as an uninsured motorist insurance carrier, Allstate is allowed to assert any defense that would be available to Wisenbaker. Wisenbaker, even in a renewal action, could raise the defenses of lack of service and expiration of the renewal or limitation period. Baldwin has shown no excuse or justification for having failed to name and serve Wisenbaker within six months of the dismissal. Indeed, he offers no explanation for failing to sue her within the renewal period. Under these circumstances, summary judgment should have been granted in favor of Allstate.

3. On remand, the trial court is directed to vacate its order allowing the amendment and to enter summary judgment in favor of Allstate.

Judgment reversed and case remanded with direction.

Phipps and Mikell, JJ., concur.

Decided June 28, 2000.

Young, Thagard, Hoffman, Scott & Smith, Daniel C. Hoffman, Elizabeth C. Cleveland, for appellant.

Copeland & Haugabrook, Roy W. Copeland, Karla L. Walker, for appellees.

       See U. S. Fidelity &c. Co. v. Reid, 268 Ga. 432, 434 (491 SE2d 50) (1997); Heyde v. Xtraman, Inc., 199 Ga. App. 303 (404 SE2d 607) (1991).

       See Patterson v. Rosser Fabrap Intl., 190 Ga. App. 657, 659 (379 SE2d 787) (1989); Wagner v. Casey, 169 Ga. App. 500, 501 (2) (313 SE2d 756) (1984).

       See generally Rodgers v. St. Paul Fire &c. Ins. Co., 228 Ga. App. 499, 500 (1) (492 SE2d 268) (1997).

       See U. S. Fidelity &c. Co., supra at 433; OCGA § 33-7-11 (d).

       See id.; U. S. Fidelity &c. Co., supra; U. S. Fidelity &c. Ins. Co. v. Myers, 214 Ga. App. 851, 852 (449 SE2d 359) (1994); Smith v. Phillips, 172 Ga. App. 459, 461 (1) (323 SE2d 669) (1984).

       See generally El Chico Restaurants v. Transp. Ins. Co., 235 Ga. App. 427, 430 (2) (509 SE2d 681) (1998); Bil-Jax, Inc. v. Scott, 183 Ga. App. 516 (359 SE2d 362) (1987); Wagner, supra at 501-502 (2).

       See Brown v. State Farm &c. Ins. Co., 242 Ga. App. 313, 315 (2) (529 SE2d 439) (2000).

       See, e.g., Kimball v. KGB Transp., 241 Ga. App. 511, 512 (527 SE2d 233) (1999); Watters v. Classon, 193 Ga. App. 493, 494 (1) (388 SE2d 397) (1989).

       See generally Hall v. Scott USA, Ltd., 198 Ga. App. 197, 198-199 (1) (400 SE2d 700) (1990).


author: Pope, Presiding Judge.

text:
    A00A0586.
    SMITH v. THE STATE.
    (536 SE2d 561)
   Pope, Presiding Judge.

Clarence E. Smith was charged with armed robbery, terroristic threats, and kidnapping. He was acquitted of armed robbery, terroristic threats, and kidnapping but convicted of the lesser offense of robbery and sentenced to serve 12 years.

On the night of May 2, 1996, Smith and Norris Galbert drank a few beers together at Galbert’s home. Smith was a neighbor and had been to Galbert’s house at least once before. Smith testified that they ran out of beer and that Galbert gave him $40 to go to the store and buy more. Smith also testified he took $10 from Galbert’s jewelry box to buy himself a different type of beer. Galbert testified to a different version of events. Galbert testified that she declined Smith’s request to buy more beer, and he then asked to use her restroom. Galbert testified that Smith returned from the restroom with his hand in his pocket, told her he had a gun, and forced her into her bedroom where he took approximately $100 from her wallet and a ring and watch off her dresser. In addition, Galbert testified that Smith threatened to kill her if she did not give him $500.

1. Smith first enumerates as error the failure of the trial court to give his requested charge on the offense of theft by taking as a lesser included offense of armed robbery. We agree that the requested charge should have been given and reverse Smith’s conviction.

The complete rule with regard to giving a defendant’s requested charge on a lesser included offense is: where the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense. [But] [w]here a case contains some evidence, no matter how slight, that shows that the defendant committed a lesser offense, then the court should charge the jury on that offense.

(Citations omitted; emphasis in original.) Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994).

In this case, Smith and Galbert gave differing accounts of the circumstances surrounding the theft of the money, and there were no other witnesses to the event. Smith claims that Galbert gave him two $20 bills from her purse and that while he was leaving, he took a $10 bill from her jewelry box. Galbert testified Smith took approximately $100 and some jewelry after telling her he had a gun and threatening to kill her. Although the State argues that Galbert saw Smith take the money, the transcript shows that Galbert was not aware that Smith took the $10 from her dresser. Likewise, the record does not support the State’s argument that Smith claimed at trial that he had permission to take the $10. Smith testified that he saw the $10 sticking out from under Galbert’s jewelry box and that he grabbed it on his way out the door. Additionally, one of the investigating officers testified at trial that Smith told him the victim gave him $40 and he took $10 for himself. Consequently, the trial court erred by refusing to give the requested charge under the facts of this case. Pearson v. State, 216 Ga. App. 333, 334 (454 SE2d 205) (1995) (defense counsel was deemed ineffective for failure to request charge on lesser included offense of theft by taking in prosecution for armed robbery where defendant admitted theft and sole defense was that he did not use a weapon); King v. State, 214 Ga. App. 311, 312-313 (2) (447 SE2d 645) (1994) (trial court, upon written request, should have charged the jury on theft by taking in a prosecution for robbery by sudden snatching; where there was evidence to support defendant’s written request to charge on the lesser included offense of theft by taking, the trial court’s failure to give the requested charge was reversible error); cf. Espinoza v. State, 243 Ga. App. 665 (534 SE2d 127) (2000) (failure to charge on the lesser offense of theft by taking not error when evidence showed robbery was committed either with a handgun or by intimidation); Jones v. State, 233 Ga. App. 362, 363-364 (504 SE2d 259) (1998) (defendant did not deny accomplice was armed; lesser included offenses charge thus not required); Thomas v. State, 226 Ga. App. 441, 444-445 (8) (487 SE2d 75) (1997) (charge on lesser included offense not required when the evidence established without dispute that the robberies were committed at gunpoint, and the defendant did not deny he was armed).

Moreover, because the evidence here was not overwhelming, due in large part to the lack of witnesses and conflicts in the testimony presented at trial, and as demonstrated by the jury’s verdict finding Smith guilty of only the lesser offense of robbery after he was charged with armed robbery, terroristic threats, and kidnapping, we cannot say that the error here did not contribute to the verdict. Cf. Edwards v. State, 264 Ga. at 133 (Supreme Court held that the failure to give lesser offense charge of theft by taking was harmless error that did not contribute to the verdict because evidence of defendant’s guilt was overwhelming).

Decided June 28, 2000.

Steven E. Phillips, for appellant.

Paul L. Howard, Jr., District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.

2. For purposes of retrial, we note that the trial court’s charge on reasonable doubt was subsequently disapproved by our Supreme Court in Coleman v. State, 271 Ga. 800, 804-805 (8) (523 SE2d 852) (1999).

3. In light of our reversal in Division 1, it is unnecessary for us to address Smith’s remaining enumerations of error, most of which relate to alleged ineffectiveness of trial counsel.

Judgment reversed.

Smith, P. J., and Miller, J., concur.


text:
    A00A1325.
    GARRETT v. THE STATE.
    (536 SE2d 560)
    Decided June 28, 2000.

      Beverly Harris, for appellant.
   Blackburn, Presiding Judge.

This appeal follows James Mack Garrett’s conviction by a Union County jury of aggravated assault, aggravated assault on a correctional officer, and escape. The State has moved to dismiss the appeal because Garrett, upon remand to the sheriff, escaped custody on November 7, 1999, and remains at large. In support of the motion to dismiss, the State has submitted the affidavit of David Atkins, Sheriff of Union County. In her brief in support of the appeal, Garrett’s attorney acknowledges that his exact whereabouts remain unknown.

As defendant has escaped and remains without the lawful custody and control of the authorities of this state, this case has become moot. Therefore, the motion to dismiss defendant’s appeal must be granted. [Cits.] The public policy of this state is to deter escapes.

Blassingame v. State, 155 Ga. App. 235-236 (270 SE2d 399) (1980). See also Gilbert v. State, 188 Ga. App. 602 (373 SE2d 668) (1988). Accordingly, Garrett’s appeal is dismissed.

Appeal dismissed.

Eldridge and Barnes, JJ, concur.

N. Stanley Gunter, District Attorney, William J. Langley, Assistant District Attorney, for appellee.


author: MlKELL, Judge.

text:
    A00A1439.
    DAVIS v. THE STATE.
    (536 SE2d 563)
   MlKELL, Judge.

Douglas Edward Davis and Kenneth Mack Reed were jointly indicted, tried, and convicted of armed robbery and aggravated assault. Reed was also convicted of possession of a firearm during the commission of a crime. The trial court sentenced Davis and Reed to serve 20 years concurrently for each offense. Reed was sentenced to serve an additional five years for the firearms offense. Davis appeals. In his sole enumeration of error, Davis argues that the circumstantial evidence did not exclude every reasonable hypothesis except that of his guilt. We disagree and affirm.

Evidence adduced at trial revealed that on December 28, 1997, at 4:30 a.m., three men, who wore woolen caps to obscure their faces, robbed a Speedway convenience store on Tara Boulevard in Jonesboro. Doris Hanzard, the manager, testified that she saw two masked men, and heard a third man, enter the store. One man, armed with a gun, leaped over the counter and pushed Hanzard to the floor. The man threatened to kill her unless she opened the cash register drawer. When Hanzard rose to open the drawer, she saw the second robber, armed with a butcher knife, trying to open the coin changer. The first robber demanded she explain how to open it, and Hanzard complied. A second employee, Audrey Oliver, was in the back mopping the floor. The robber with the knife ordered Oliver to lie on the floor. The third man walked outside. The robber with the gun demanded Hanzard’s car keys. He took them and ordered Hanzard to get back on the floor. She heard the car start, then called 911.

The stolen vehicle was found one-half mile from the Speedway, parked in a muddy subdivision that was still under construction. Deputy Sheriff Ethel W. Harris discovered Davis and Reed in the area of the stolen vehicle around 5:00 a.m. Davis and Reed were caked with mud “up to their knees.” When Reed tried to flee, Harris grabbed Davis. Other officers chased and apprehended Reed.

Police found $138 in cash, including 58 $1 bills, on Davis’s person. Davis claimed the money came from a paycheck he had cashed. Reed possessed “wads of cash,” which he admitted belonged to Speedway. After Reed was apprehended and Mirandized, he insisted upon being returned to Speedway to apologize to Hanzard. Additionally, after Reed was taken into custody, he gave an audiotaped confession, which was admitted into evidence.

Decided June 28, 2000.

Patricia F. Angelí, for appellant.

The defendants testified and denied committing the crimes. Reed claimed he went to Davis’s home the evening the robbery was committed. However, according to Reed, Davis’s mother asked Reed to leave, and the two men walked around all night until they noticed the police cars. Davis testified that Reed left Davis’s house at approximately 11:30 p.m., after which Davis stayed home all night. Davis claimed that Reed returned to Davis’s house at “5:05 or 5:15.” According to Davis, Reed stated he was locked out of his house, so Davis and Reed walked over to Reed’s house, saw no lights on, and continued walking around. To support the verdict, “[c]ircumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt.” The reasonableness of a defendant’s explanation of circumstantial facts or an alternative hypothesis of events is a matter for the jury, and,

[t]his court will not substitute its judgment as to what is a reasonable hypothesis for that of the jury or the trial court. Neither is the jury obliged to accept defendant’s explanation of circumstantial facts. After having heard the witnesses and having observed them testify, the jury is more capable of judging . . . the reasonableness of a hypothesis produced by the evidence, or the lack of evidence, and the defendant’s statement, than is a court of law.

Viewing the evidence in the light most favorable to the verdict, we conclude that the jury rationally could have excluded every reasonable hypothesis except that of Davis’s guilt. The victims’ testimony established that three men participated in the crimes in question. Reed’s videotaped apology and audiotaped confession established his guilt beyond a reasonable doubt. Davis, who was apprehended with Reed shortly after the crime was committed, offered no plausible explanation for his possession of 58 $1 bills. Davis and Reed gave conflicting testimony as to Davis’s whereabouts during the time the offenses were committed. Accordingly, the record reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that Davis was guilty as a party to the crimes of armed robbery and aggravated assault.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

Robert E. Keller, District Attorney, Erman J. Tanjuatco, Clifford A. Stitcher, Assistant District Attorneys, for appellee.

        Smith v. State, 257 Ga. 381, 382 (359 SE2d 662) (1987).

       (Citations and punctuation omitted.) Chews v. State, 187 Ga. App. 600, 603 (1) (371 SE2d 124) (1988).


author: Phipps, Judge.

text:
    A00A0660.
    ARRINGTON v. THE STATE.
    (535 SE2d 337)
   Phipps, Judge.

Douglas Arrington was tried in September 1998 for a crime that had occurred five months earlier. Following denial of his motion for new trial, he appeals his conviction of robbery by intimidation. He complains of evidentiary rulings by the trial court, including its admission of a witness’s in-court identification of him even though the witness’s pre-trial identification was suppressed. We find no reversible error and affirm.

On April 12,1998, Amanda Tailoon was working as a waitress at a Waffle House restaurant in Lawrenceville. Her boyfriend, Michael Becker, was there with her. Tailoon testified that at approximately 4:00 a.m., she saw Arrington standing outside of the restaurant at a pay phone. According to Tailoon, Arrington remained in a well-lit area for about seven to eight minutes, and she had an unobstructed view of him. Tailoon further testified that at approximately 6:00 a.m., Arrington returned to the restaurant and sat down at the counter. Arrington began to converse with Becker, then abruptly stood up and put his right arm behind his back underneath his jacket. Becker backed away from Arrington, approached Tailoon, and told her that she needed to go to the register. Tailoon did so, because she realized that a robbery was underway. Arrington stood two to three feet in front of Tailoon and threatened her unless she gave him all the $20 bills in the register. She did as instructed. Arrington then fled on foot toward a nearby muddy area, and the police were summoned. Tailoon and Becker described the robber as a six-foot-tall black male weighing about 200 pounds, with short hair, wearing blue jeans and a white shirt.

City of Lawrenceville Police Officer Eberhardt testified that after police were alerted to the robbery and given a description of the suspect, he observed Arrington proceeding on foot at a rapid pace in front of police headquarters. Because Arrington fit the suspect’s description, Eberhardt instructed him to stop. As Arrington stopped, he bent down and did something with his sock. The officer observed that Arrington was sweating profusely even though the temperature was 40°F and that his boots were wet and muddy, as were his pants legs from the knees down. After Arrington was arrested and told to remove his socks, $400 in $20 bills were found inside one of them. Photographs of footprints left in the muddy area near the Waffle House matched the boots worn by Arrington at the time of his arrest.

Tailoon viewed Arrington at a one-on-one showup. She testified that no suggestive comments were made and that she positively identified Arrington as the robber Based on a combination of his physical appearance and the sound of his voice. She also positively identified him at trial.

Becker also viewed Arrington at a one-on-one showup. He testified that he had a clear view of the robber during the three to four minutes the robbery was in progress. Becker was not, however, able to positively identify Arrington during the showup. Shortly after the robbery, police had apprehended another suspect. Becker was shown the second suspect but excluded him as the robber. Becker then viewed Arrington at a second showup. At some point, police informed Becker that the first suspect had been found in possession of money close to the amount taken from the Waffle House and had mud on his shoes and pants legs. Upon viewing Arrington the second time, Becker positively identified him as the robber based on his appearance and the sound of his voice.

Arrington moved to suppress any identification of him by Tailoon or Becker, arguing that a one-on-one showup is impermissibly suggestive. Finding that the showup was impermissibly suggestive to Becker but not to Tailoon, the trial court granted Arrington’s motion to suppress Becker’s identification testimony but denied his motion to suppress Tailoon’s. At the beginning of the trial, however, the court ruled that it had not suppressed any in-court identification of Arrington by Becker. Defense counsel then announced that she would submit evidence of Becker’s pre-trial identification in order to show that his in-court identification had been tainted.

1. Arrington first contends that the court erred in allowing Becker to identify him in court.

Notwithstanding any taint occurring in the pre-trial identification of the defendant, a witness’s in-court identification may still be admitted provided it has an “independent origin.” The test

is[ ] “whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness’ degree of attention, (3) the accuracy of the witness’ prior description of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation.” [Cit.]

Decided June 8, 2000

Reconsideration dismissed June 29, 2000.

Sharon L. Hopkins, for appellant.

Douglas Arrington, pro se.

Even if the trial court erred in determining that Becker’s in-court identification of Arrington did not depend on the prior tainted identification, we do not find the error reversible. In light of Tailoon’s positive pre-trial and in-court identifications of Arrington and the compelling physical evidence tying him to the crime, we conclude that any error by the trial court in allowing Becker to provide an in-court identification would have been harmless .beyond a reasonable doubt.

2. Arrington next complains of the trial court’s refusal to allow defense counsel to read to the jury a certified copy of Becker’s indictment for first degree forgery, which together with his conviction, was admitted for impeachment purposes.

Defense counsel tendered these documents in evidence and announced her intent to read the indictment. The court ruled that the jurors would have an opportunity to peruse the documents and that counsel could comment on them during closing argument, but that she should not read them to the jury. Because defense counsel did not object to this ruling, the issue has been waived.

Moreover, Arrington’s argument is that this procedure was unfair because the court allowed the prosecuting attorney to publish evidence to the jury during the trial. In support of this argument, however, Arrington cites to parts of the trial transcript in which a State’s witness displayed photographic evidence to the jury at the request of defense counsel during cross-examination.

3. Finally, Arrington contends that the court erred in allowing the State to admit the testimony of a rebuttal witness who was not on the State’s witness list.

Because Arrington did not object to introduction of the witness’s testimony on this ground at trial, this issue has been waived.

Judgment affirmed.

Johnson, C. J, and Mikell, J., concur.

Daniel J. Porter, District Attorney, David K. Keeton, Assistant District Attorney, for appellee.

        Brown v. State, 192 Ga. App. 187, 188 (1) (384 SE2d 254) (1989).

        Smith v. State, 160 Ga. App. 60 (1) (286 SE2d 45) (1981).

       See Huff v. State, 239 Ga. App. 83, 86 (1) (519 SE2d 263) (1999).

        White v. State, 255 Ga. 210, 213 (3) (336 SE2d 777) (1985).

       Id.


text:
    A98A0636.
    FLEMING v. THE STATE.
    (536 SE2d 608)
    Decided June 29, 2000.

      Patricia A. Buttaro, for appellant.

      William T. McBroom III, District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.
   Pope, Presiding Judge.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court in Fleming v. State, 271 Ga. 587 (523 SE2d 315) (1999), our decision in Fleming v. State, 233 Ga. App. 483 (504 SE2d 542) (1998), is hereby vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed.

Johnson, C. J., Andrews, P. J., Blackburn, P. J., Smith, P. J., Ruffin and Eldridge, JJ, concur.


text:
    A00A0196.
    POETTER v. THE STATE.
    (536 SE2d 576)
   Miller, Judge.

On April 8, 1988, Louis Jerome Poetter pled guilty to nineteen counts of sodomy and one count of simple battery in the Superior Court of Douglas County, for which felony offenses he was sentenced to concurrent twenty-year terms, provided that, after serving eight years, Poetter would be eligible for probation. Effective January 23, 1996, the State Board of Pardons & Paroles ordered that Poetter be paroled “until the expiration of the confinement sentence(s).” Poetter planned to reside in Gwinnett County with his wife, and the Board’s order specified that Poetter would be supervised by Parole Officer B. Crosby in Lawrenceville. One of the special conditions of the Board’s parole order was that Poetter would not return to Douglas County. On April 23, 1999, the Superior Court of Douglas County issued an order under the original indictment number, reciting that the court deemed it “appropriate for the actual supervision of [Poetter] to be maintained by and through the Adult Probation Department of the Department of Corrections in Douglas County,” and ordering that Poetter’s parole supervision be transferred from Gwinnett County to Douglas County. This order contains the certificate of the Douglas County District Attorney that he mailed a copy of the order to defendant, his counsel, the chiefs of Adult Probation in Gwinnett and Douglas Counties, the clerks of the respective superior courts, and an assistant attorney general.

Decided June 29, 2000.

Thomas E. Maddox, Jr., for appellant.

David McDade, District Attorney, Thurbert E. Baker, Attorney General, Mary Beth Westmoreland, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.

Poetter’s direct appeal to the Supreme Court of Georgia was transferred to the Court of Appeals. In three related enumerations of error, Poetter complains of the transfer of his parole supervision from Gwinnett County to Douglas County without notice.

An appellate court may hear and consider evidence outside the record as transmitted from the court below that an appeal has become moot. As a friend of the court, the Attorney General submits this appeal is moot because Poetter’s probation supervision has already been administratively transferred from Gwinnett County to Douglas County. This finding of fact is made in an order of the Gwinnett Superior Court in Poetter’s habeas corpus petition, Civil Action No. 99A3349-5, which order is attached as an exhibit to the Attorney General’s brief. Where the appellant either admits the existence of the fact of mootness as claimed by the appellee or fails to deny the existence of the same, the appeal will be dismissed. Poetter has not denied the administrative transfer of his supervision. We therefore conclude the issues raised in this appeal are moot, subjecting Case No. A00A0196 to dismissal under OCGA § 5-6-48 (b) (3).

Appeal dismissed.

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

        Atlanta &c. R. Co. v. Blanton, 80 Ga. 563, 565 (1) (6 SE 584) (1888).

        Kappers v. DeKalb County Bd. of Health, 214 Ga. App. 117, 118 (446 SE2d 794) (1994).

       Id.


text:
    A00A0302.
    ROTH v. GULF ATLANTIC MEDIA OF GEORGIA, INC. et al.
    (536 SE2d 577)
   Johnson, Chief Judge.

The doctrine of res judicata provides that a final judgment of a court of competent jurisdiction is conclusive between the parties and bars a subsequent action between the same parties on the same subject matter. Jerry Roth sued Gulf Atlantic Media of Georgia, Inc. and Carl Marcocci for fraud and breach of contract. The trial court granted summary judgment to Gulf Atlantic and Marcocci, and that judgment was affirmed on appeal. The trial court later dismissed the breach of contract claim as to Marcocci. Roth then voluntarily dismissed the lawsuit without prejudice and later refiled the same fraud and breach of contract claims against Gulf Atlantic and Marcocci in another court. Are the subsequent fraud claims against Gulf Atlantic and Marcocci and the breach of contract claim against Marcocci barred by the doctrine of res judicata? We find that they are barred because a court of competent jurisdiction has already rendered a final judgment on the merits of those claims. We therefore affirm the lower court’s grant of summary judgment to Gulf Atlantic and Marcocci on the fraud claim and to Marcocci on the breach of contract claim.

In 1988, Roth agreed to buy stock in Gulf Atlantic and to be employed as Gulf Atlantic’s president and as the general manager of two Gulf Atlantic radio stations in Savannah. In 1990, Roth sued Gulf Atlantic and its majority shareholder, Marcocci, in Chatham County Superior Court. In Count 1 of the complaint, Roth claimed that Gulf Atlantic and Marcocci had fraudulently induced him to enter into the stock purchase and employment agreements by misrepresenting the amount of money that Marcocci would invest in Gulf Atlantic. In Count 2 Roth complained that Gulf Atlantic and Marcocci had breached the stock purchase agreement by refusing his request that they redeem his stock.

Gulf Atlantic and Marcocci moved for summary judgment as to the fraudulent inducement claims. In March 1995, the superior court granted the motion, concluding that Roth could not demonstrate an essential element of his fraudulent inducement claims, i.e., that he justifiably relied on the alleged misrepresentations of Gulf Atlantic and Marcocci. Roth then directly appealed to this court from that summary judgment ruling. We affirmed the grant of summary judgment to Gulf Atlantic and Marcocci on the fraud claims without an opinion.

Thereafter, Marcocci moved to be dismissed from the breach of contract claim, asserting that he is not responsible under the contract terms for redeeming Roth’s stock in the company. In November 1996, the superior court, noting only that Roth had not responded to the motion, granted the motion and dismissed Marcocci. With only his breach of contract claim against Gulf Atlantic still pending, Roth voluntarily dismissed the lawsuit without prejudice pursuant to OCGA § 9-11-41 (a).

About six months later, Roth again sued Gulf Atlantic and Marcocci, this time in the State Court of Chatham County. He reasserted the same fraudulent inducement and breach of contract claims that he had asserted in his prior superior court action. Relying on the doctrine of res judicata, Gulf Atlantic and Marcocci moved for summary judgment as to the fraudulent inducement claims, and Marcocci sought summary judgment on the breach of contract claim. The state court granted the motion, determining that the doctrine of res judicata precluded all of Roth’s claims except for his breach of the stock purchase agreement claim against Gulf Atlantic. Roth appeals from the state court’s summary judgment ruling.

1. Roth contends that the state court erred in holding that the doctrine of res judicata prevents his fraudulent inducement claims against Gulf Atlantic and Marcocci. Roth’s contention is without merit.

Res judicata prevents a plaintiff from instituting a second complaint against a defendant on a claim that has already been brought, after having previously been adjudged not to be entitled to the recovery sought on that claim. Three prerequisites must be satisfied before res judicata applies — (1) identity of the cause of action, (2) identity of the parties or their privies, and (3) previous adjudication on the merits by a court of competent jurisdiction.

As to Roth’s fraudulent inducement claims, all three prerequisites have been satisfied. First, there is no dispute that the fraudulent inducement claims asserted in the current state court action are the same claims asserted in the prior superior court action. Second, there is also no dispute that the parties in the two lawsuits are identical — Roth sued Gulf Atlantic and Marcocci in both the superior and state court actions. And third, there is no question that Chatham County Superior Court is a court of competent jurisdiction which has already granted summary judgment to Gulf Atlantic and Marcocci on the fraudulent inducement claims.

When a grant of summary judgment in a prior suit is relied upon to support a plea of res judicata in a subsequent suit, the basis of the prior summary judgment must be examined. If that summary judgment actually adjudicated the merits, the plea of res judicata must be sustained; but if the summary judgment did not adjudicate the merits, then the res judicata plea should be denied.

Here, the superior court granted summary judgment to Gulf Atlantic and Marcocci on the basis that Roth could not prove that he justifiably relied on Gulf Atlantic and Marcocci’s alleged misrepresentations, which was an essential element of his fraudulent inducement claims. By finding that Roth could not prove an essential element of his fraud claims, the superior court’s grant of summary judgment was an adjudication on the merits of those claims. Because the superior court’s grant of summary judgment adjudicated the merits of the fraudulent inducement claims, Gulf Atlantic and Marcocci’s res judicata plea should be sustained.

Roth argues that in spite of the superior court’s partial summary judgment on the merits of the fraud claims, there was no binding final judgment because he voluntarily dismissed the superior court action without prejudice while his breach of contract claim against Gulf Atlantic was still pending. It is true that under OCGA § 9-11-54 (b) a judgment as to one or more but fewer than all of the claims or parties is not a final judgment and lacks res judicata effect unless the trial court expressly directs the entry of a final judgment and determines that there is no just reason for delaying the finality of the judgment. But if a grant of partial summary judgment is not made final under OCGA § 9-11-54 (b), the party against whom summary judgment was granted has the option to either appeal or not appeal at that time. And if the party chooses to appeal, then the appellate decision on the summary judgment ruling is binding under OCGA § 9-11-60 (h).

After the superior court granted summary judgment to Gulf Atlantic and Marcocci on the fraudulent inducement claims, Roth chose to appeal that judgment. And on appeal, this court affirmed the grant of summary judgment. So even though Roth’s breach of contract claim against Gulf Atlantic was still pending, this court’s affirmance of the summary judgment ruling constitutes a binding final adjudication that prevents Roth from relitigating the fraud claims.

Accordingly, the state court correctly ruled that the doctrine of res judicata prevents Roth from again bringing his fraudulent inducement claims against Gulf Atlantic and Marcocci. The state court’s summary judgment ruling as to those claims , is therefore affirmed.

2. Likewise, the state court’s grant of summary judgment to Marcocci on the breach of contract claim must be affirmed based on the doctrine of res judicata.

As with the fraud claims discussed in Division 1, there is no question that the breach of contract claim which Roth brought against Marcocci in the superior court action is the same claim he again raised in the state court action. Thus, there is identity of the cause of action and the parties.

And the superior court’s dismissal of the breach of contract claim against Marcocci was a previous adjudication on the merits by a court of competent jurisdiction. Under OCGA § 9-11-41 (b), an involuntary dismissal for failure to prosecute is not a ruling on the merits. But any other dismissal, other than a dismissal for lack of jurisdiction, for improper venue, or for lack of an indispensable party, operates as an adjudication upon the merits unless the court in its dismissal order specifies otherwise.

The superior court, in its order granting Marcocci’s motion to dismiss the breach of contract claim, made no specification that the dismissal was not on the merits. Accordingly, that order of involuntary dismissal operates as an adjudication on the merits of the breach of contract claim. And there was no appeal from the dismissal order after Roth terminated the superior court action by voluntary dismissal. So the order dismissing the breach of contract claim against Marcocci became a final ruling on the merits of that claim.

Because the superior court has already adjudicated the merits of Roth’s breach of contract claim against Marcocci, that claim is barred by the doctrine of res judicata. The state court therefore correctly granted summary judgment to Marcocci on the breach of contract claim.

Decided June 29, 2000.

McCallar & Associates, C. James McCallar, Jr., Patricia Mullen, for appellant.

Oliver, Maner & Gray, James P. Gerard, Timothy M. O’Brien, for appellees.

3. Because of our findings in Division 2, we need not address Roth’s additional contention that there are genuine issues of material fact on his claim that Marcocci breached the shareholder’s contract.

Judgment affirmed.

Phipps and Mikell, JJ., concur.

       OCGA § 9-12-40; Myers v. North Ga. Title &c. Exchange, 241 Ga. App. 379, 380 (1) (527 SE2d 212) (1999).

       After Roth refiled his lawsuit in the state court, Gulf Atlantic and Marcocci filed a motion in the superior court to set aside Roth’s prior voluntary dismissal of his superior court action. The superior court denied the motion. Gulf Atlantic and Marcocci appealed that ruling, which this court affirmed in Gulf Atlantic Media &c. v. Roth, 233 Ga. App. 209 (504 SE2d 47) (1998). While upholding the validity of Roth’s voluntary dismissal as a termination of the prior superior court lawsuit, we pointed out that the preclusive effect of the superior court’s summary judgment ruling on the status of the state court action was not an issue in that appeal. Id. at 210.

       (Footnotes omitted.) Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 865-866 (1) (463 SE2d 5) (1995).

        Robinson v. Starr, 197 Ga. App. 440, 441 (1) (398 SE2d 714) (1990).

       Id.

        Pierce v. Cessna Aircraft Co., 179 Ga. App. 549, 550 (347 SE2d 261) (1986).

        Faircloth v. A. L. Williams & Assoc., 219 Ga. App. 560, 561 (2) (465 SE2d 722) (1995).

       Id.

       See Smith v. Motes, 271 Ga. 132 (516 SE2d 295) (1999); Bellamy v. Fed. Deposit Ins. Corp., 236 Ga. App. 747, 750 (512 SE2d 671) (1999).

       See Waldroup, supra.

       OCGA § 9-11-41 (b).

       See Liner v. North, 194 Ga. App. 175, 178 (1) (390 SE2d 263) (1990).

       See Brantley v. Sparks, 167 Ga. App. 323, 324 (306 SE2d 337) (1983).


text:
    A00A0351.
    SPOONER v. DEERE CREDIT, INC.
    (536 SE2d 581)
   Miller, Judge.

Claiming default under an inventory security agreement, Deere Credit, Inc. was granted an immediate writ of possession and a final writ of possession and proceeded to repossess several manufactured homes from George Spooner and Keli Christie, doing business jointly as Mac’s Housing. Defendants failed to file an answer, and Deere was granted judgment by default. Deere then sued Spooner for a deficiency judgment after disposal of the homes, and Spooner counterclaimed asserting that he was not in default and, therefore, the repossession was wrongful. Deere moved for summary judgment, but the court found that issues of fact remain regarding notice of transfer of the homes, the commercial reasonableness of the sale, and Spooner’s right to redeem. The trial court did however grant summary judgment to Deere on Spooner’s counterclaim for wrongful repossession from which order Spooner now appeals.

On appeal from a trial court’s grant of summary judgment, we conduct a de novo review of the evidence. To prevail on summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

Spooner contends that there is an issue of fact as to whether (1) Mac’s Housing was in default, (2) Deere’s repossession of the collateral was conducted in good faith, and (3) Deere gave him a reasonable opportunity to cure any default. The trial court concluded that, because the default judgment had not been appealed or set aside, the writ of possession could not be attacked by Spooner.

“Collateral estoppel precludes the relitigation of issues already adjudicated between the parties or their privies in a prior action.” To properly invoke this doctrine, the judgment must be on the merits, and this court has previously held that a default judgment satisfies this requirement.

The issue already adjudicated in this case is whether the repossession of the homes was wrongful. Deere’s petition claimed that Mac’s Housing was in default under the security agreement. These allegations are considered an admission as the defendants named, including Spooner, failed to answer.

A judgment by default properly entered against parties sui juris operates as an admission by the defendant of the truth of the definite and certain allegations and the fair inferences and conclusions of fact to be drawn from the allegations of the declaration.

Since Spooner has in essence admitted default under the security agreement, he cannot now claim that the repossession was wrongful.

We agree with the court that because Spooner failed to answer the petition for immediate writ of possession and a default judgment was entered with no appeal, under collateral estoppel the issue of wrongful repossession can no longer be raised by Spooner. Therefore, the trial court correctly granted summary judgment to Deere on Spooner’s counterclaim.

Judgment affirmed.

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

Decided June 29, 2000.

Anderson, Walker & Reichert, Jonathan A. Alderman, for appellant.

Thompson, O’Brien, Kemp & Nasuti, R. Michael Thompson, Bret T. Thrasher, for appellee.

        Marable v. First Union Nat. Bank, 232 Ga. App. 628 (502 SE2d 557) (1998).

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       (Citation and punctuation omitted.) American States Ins. Co. v. Walker, 223 Ga. App. 194, 195 (1) (a) (477 SE2d 360) (1996).

        Butler v. Home Furnishing Co., 163 Ga. App. 825 (296 SE2d 121) (1982); see American States, supra, 223 Ga. App. at 195 (1) (a).

       Mac’s Housing was served with the petition for immediate writ of possession as was Christie, and although Spooner has not enumerated insufficiency of service of process on appeal, we have no evidence that Spooner was personally served. He is, however, a privy to the action as a part owner of Mac’s Housing. Cf. Langton v. Dept. of Corrections, 220 Ga. App. 445, 446 (1) (469 SE2d 509) (1996).

       (Citation and punctuation omitted.) American States, supra, 223 Ga. App. at 195 (1) (a).