text:
    75866.
    HUNTER et al. v. SCHROEDER et al.
    (368 SE2d 561)
   Birdsong, Chief Judge.

The trial court in this legal malpractice suit awarded attorney fees under OCGA § 9-15-14 to the defendants, upon defendants’ motions filed 44 and 45 days after the parties entered a consent order dismissing the lawsuit with prejudice. This order of dismissals with prejudice recited that the dismissals were granted, “it appearing to the Court that all parties hereto consent [thereto, and] . . . [i]t further appearing to the Court that the mutual dismissals contained herein are a fair and reasonable settlement of all claims in this action under all the facts and circumstances of this case. . . .” (Emphasis supplied.) We granted this discretionary appeal on several grounds.

The underlying legal matter was plaintiff Hunter’s divorce case, where he was defendant. After Hunter relieved his attorney Schroeder of employment, his new attorney continued the divorce defense and, after the divorce action was finalized, the new attorney, in October 1984, delivered a demand letter to Schroeder alleging several specific acts of negligence and malpractice. In November 1984, Hunter suffered a severe stroke, which his attorney contended was caused by Schroeder’s alleged negligence and malpractice in the divorce action. This malpractice suit was filed against Schroeder and his partner in January 1985. The defendant attorneys filed a counterclaim for some alleged unpaid attorney fees. It later became evident to all, in an October 1986 deposition, that Hunter’s stroke had rendered him completely incompetent and unable to assist in prosecution of his malpractice suit. It was also discovered by defendant Schroeder at this October 1986 deposition, that in March 1985 (three months after this malpractice suit was filed and five months after his stroke) Hunter had remarried his former wife.

This malpractice suit was settled by consent order dismissing with prejudice in April 1987, six months after it became apparent at the October 1986 deposition that Hunter was not competent to assist in prosecuting his action. Held:

The trial court’s order granting attorney fees does not state the basis or ground for it. The trial court made its attorney fee award after hearing argument but we do not have the advantage of knowing what was said. Without transcript, we must assume the trial court based its award on a finding that Hunter’s malpractice action “lacked substantial justification.” See Georgia Hospitality &c. v. Harrison Advertising, 181 Ga. App. 163 (351 SE2d 489).

The arguments on appeal expressed in five original and supplemental briefs seem mostly a perpetuation of cloudy vexation, mimicking the “mind-numbing battle with the many-headed hydra of ‘abusive litigation’ law” encountered recently in Ferguson v. City of Doraville, 186 Ga. App. 430 (367 SE2d 551). We find it unnecessary to address most of these arguments. It appears to us so plain, fair and reasonable as to admit no dispute, that in providing in OCGA § 9-15-14 (e) that a party could move for attorney fees and expenses within 45 days of “final disposition” of a case, the legislature certainly did not mean to include per se a case where the claiming party has induced or achieved, by mutual dismissal of all then-pending claims or counterclaims, a dismissal with prejudice of the other’s claims, actions or defenses. Particularly do we find so in this case, where the claiming party achieved the other’s agreement to dismiss with prejudice by consenting to and proclaiming by court order that the “mutual dismissals . . . are a fair and reasonable settlement of all claims in this action under all the facts and circumstances of this case. . . .”

Moreover, it is very clear that the language of this “final disposition” of this case was a dismissal of “all claims . . . under all the facts and circumstances of this case,” which per se includes any possible claim that might otherwise have been allowed under OCGA § 9-15-14 on the basis that plaintiff Hunter’s suit lacked substantial justification. (Emphasis supplied.)

Decided April 7, 1988.

Paul C. Myers, for appellants.

John G. Cicala, Jr., William L. Sanders, Bruce H. Beerman, for appellees.

Judgment reversed.

Banke, P. J., and Beasley, J., concur.


source: Caselaw Access Project

author: Birdsong, Chief Judge.

license: Public Domain

text:
    76170.
    JOHNSON v. THE STATE.
    (368 SE2d 562)
   Birdsong, Chief Judge.

Appellant, Marvin Jerome Johnson, appeals his conviction of armed robbery. On the evening of August 30, 1986, two black men robbed the Taco Bell restaurant of more than $1,000, after accosting the restaurant shift manager at knife-point. The two men, one of whom had a halloween mask sitting on top of his head, fled after the manager was put in a closet. Minutes later the police were alerted. A halloween mask was found by the door. Sergeant Davis of the DeKalb County Police Department observed a 1973 Pontiac automobile within 150-200 yards of the Taco Bell. The vehicle had its windows rolled down and a warm hood. Sergeant Davis, using his flashlight, looked inside the vehicle and observed an open knife, some Taco Bell cups with loose and rolled-up coins, and certain other items. The vehicle was towed in.

Appellant previously had purchased the Pontiac automobile from a man named Cox, but Cox had retained the title to the vehicle pending payment in full. On September 1, 1986, appellant visited Cox and asked his assistance in recovering his automobile which appellant stated had broken down and apparently had been towed away. Initial efforts to recover the car were unsuccessful. In the meantime the police learned that Cox was the apparent owner of the car and contacted him. Subsequently appellant was arrested and made a statement. In the statement, appellant claims that he went to visit a friend, the friend was not home, his car broke down, he left it with the windows open, and when he returned the car was gone. At trial, the Taco Bell manager testified that Cox was not one of the men who robbed him. Cox denied any participation in the robbery, and identified a halloween mask, similar to the one used in the robbery and found in the car, as a mask that his son could have left in the car when it was sold. The manager of Taco Bell made a positive in-court identification of appellant as one of the robbery participants. Held:

1. Appellant’s first enumerated error is on the general grounds that the verdict is contrary to the evidence, against the weight of the evidence, and is contrary to law and principles of justice and equity. This enumeration of error is without merit. Our review of the transcript in a light most favorable to the jury’s verdict “reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that appellant was guilty of [the offense] charged.” Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Appellant’s second enumerated error is that the trial court erred in finding that appellant’s statement was given voluntarily. Specifically, appellant asserts that his statement is not admissible as it has not been shown that he waived his rights of silence and counsel, and that such waiver cannot be implied from the fact that a statement was given. Further, appellant asserts that appellant’s refusal to sign a written waiver invokes his right to silence.

Appellant relies, in part, on this court’s determination in Colbert v. State, 124 Ga. App. 283 (183 SE2d 476). The facts of this case are distinguishable from those in Colbert. Regarding appellant’s assertion that his refusal to sign a written waiver automatically invokes his right to silence, we disagree. Whether a failure to sign a written waiver constitutes such an invocation depends upon the existing circumstances. See generally Mitchell v. State, 254 Ga. 353 (7) (329 SE2d 481) (appellant’s declination to sign a written waiver did not prevent State from carrying its burden of showing a knowing waiver).

In this case, Detective Bollinger testified that he read appellant his rights directly and exactly from his “Miranda card.” He informed appellant what the charge was against him, and no threats, force or promises of benefit were made to appellant. Appellant had no questions about his rights, he did not request the presence of an attorney, and he never requested that the questioning stop. Appellant was given the opportunity to make either an oral or written statement, and subsequently he elected not to sign the written waiver and declined to put his oral statement in writing. In response to questions posed by appellant’s counsel, Detective Bollinger testified that he asked appellant whether he wanted to waive his rights “[r]ight at the very beginning.” Detective Bollinger also stated that appellant “wanted to talk and we talked,” that appellant said he understood his rights, and that appellant “never said that he wanted to remain silent and he answered my questions. . . .” In response to a question from appellant’s counsel as to whether he had “never expressly asked [appellant] if he wanted to remain silent, if he wanted to waiver that right and give a statement,” Detective Bollinger responded, “[t]hat’s correct. I asked him if he wanted to waive the rights part of the — I asked him if he understood his rights.”

The trial judge made the following pertinent findings: that appellant had “notice of his rights,” “understood his rights,” and voluntarily waived his rights. The trial judge further found that the appellant “made the statement voluntarily and without any threats of coercion.”

Decided April 7, 1988.

Carl Greenberg, for appellant.

Robert E. Wilson, District Attorney, Helen A. Pryles, R. Stephen Roberts, Barbara B. Conroy, Assistant District Attorneys, for appellees.

We are satisfied that appellant’s enumeration of error is without merit, and that appellant did knowingly, intelligently and voluntarily waive his right after being properly advised thereof. Factual and credibility determinations as to voluntariness of a confession, including factual and credibility determinations as to issues of rights waiver, are normally made by the trial judge and must be accepted by appellate courts unless such determinations are clearly erroneous. See generally Sanders v. State, 182 Ga. App. 581 (1) (356 SE2d 537); Anderson v. State, 178 Ga. App. 355 (2) (343 SE2d 411); Moss v. State, 175 Ga. App. 754 (2) (334 SE2d 355).

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


author: Deen, Presiding Judge.

text:
    76361.
    BRAGG et al. v. MISSROON et al.
    (368 SE2d 564)
   Deen, Presiding Judge.

Appellants Thomas and Maxine Bragg owned a lakeside cabin in North Georgia which had among its amenities a large boathouse and dock that were supported by metal pilings and equipped with electrically operated doors and boatlifts. Kelly Ann Missroon, daughter of appellees James and Sandra Missroon, came to the cabin as a guest of the Braggs’ granddaughter. After swimming in front of the cabin, she approached the ladder leading from the water to the dock, and, when she attempted to grasp it, apparently received an electrical shock which caused her to sink to the bottom of the lake, where her lifeless body was retrieved shortly thereafter. Her parents brought an action against the Braggs and against others (not parties to the instant appeal) who allegedly had constructed, repaired, or maintained the property. The Braggs moved for summary judgment in the case-in-chief, and the trial court denied the motion. The Braggs then sought an interlocutory appeal, enumerating as error the denial of the motion and contending that the decedent was a mere licensee; that they had breached no duty owed to her as a licensee; and that the trial court had improperly considered affidavits which contained inadmissible testimony. We granted the appeal to determine whether the instant case is controlled by the line of cases represented by Ruffin v. Ruffin, 159 Ga. App. 830 (285 SE2d 261) (1981), or that represented by such cases as Patterson v. Thomas, 118 Ga. App. 326 (163 SE2d 331) (1968), and Barry v. Cantrell, 150 Ga. App. 439 (258 SE2d 61) (1979). Held:

A social guest has been held to be a mere licensee rather than an invitee, Frankel v. Antman, 157 Ga. App. 26 (276 SE2d 87) (1981); and the owner or occupier is liable to a licensee only for wilful or wanton injury. OCGA § 51-3-2 (6). “ ‘The occupier (or owner) of real property owes the same duty of care to a social guest as to a licensee.’ ” Barry v. Cantrell, supra at 441. “A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if, (a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to . . . licensees, and should expect that they will not discover or realize the danger, and (b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and (c) the licensees do not know or have reason to know of the condition and the risk involved.” Restatement, 2d, of Torts, § 342, cited in Patterson v. Thomas, supra at 328. In Patterson, as in Barry v. Cantrell, supra at 442, this court held that a jury question was presented.

In Ruffin v. Ruffin, supra, on the other hand, this court affirmed the grant of summary judgment to defendant property owners against the allegations of the plaintiff that, in allowing her to fall through a rotted board on their dock, plaintiff had failed adequately to maintain or repair the dock or to warn the plaintiff of its condition, and had also failed to exercise ordinary care to prevent injury from a hidden peril of which defendant knew or should have known. There, as in the instant case, the defendants alleged that they had had no knowledge of a defective condition; and that there had been no previous injury or other incident, or any report of such, which would have put them on notice of a defective or dangerous condition. See, e.g., McCoy v. Gay, 165 Ga. App. 590 (302 SE2d 130) (1983); Pembrook Mgt. v. Cossaboon, 157 Ga. App. 675 (278 SE2d 100) (1981); but see Dillon v. Grand Union Co., 167 Ga. App. 381 (306 SE2d 670) (1983).

Our scrutiny of the record in the case at bar indicates that there do indeed exist certain similarities between this case and Ruffin v. Ruffin, supra. Nevertheless, we perceive a considerable difference, not only in degree but in kind, between a relatively uncomplicated object such as a simple little wooden dock and a large facility equipped, inter alia, with an electrically operated door-opener and electrically controlled boatlifts. In Ruffin it was undisputed that the boards of the small dock appeared intact to the naked eye; in the instant case, in contrast, there was testimony below that mere visual inspection had revealed a number of instances where the insulation had rubbed off the wires, leaving them exposed; that various wires had been broken or cut and spliced, not always in a manner complying with standard electrical codes; that other wires randomly touched the ground or the water; that the wires supplying current to the boathouse were not properly grounded; that a measurable voltage leak into the water was detected four days after the accident; and that there had been no routine maintenance of the facility. The testimony on most, if not all, of these points, was conflicting.

Moreover, appellees allege in their complaint, as amended, that appellants’ conduct in failing to inspect and maintain the wiring was wilful and wanton. They also allege that the absence of care in failing to inspect or maintain the wiring “exhibited a wanton and conscious indifference to the consequences which might befall those using the boat dock.” In support of their motion for summary judgment appellants rely on their own testimony, given by deposition and affidavit, which states only that prior to the incident in question they had not experienced any malfunction or problem with the electrical system on the boathouse or swim dock, and no such problems had been reported to them. They do not address the issue of whether they should have known of the defects. In response to appellants’ motion for summary judgment, appellees rely on the affidavit of David G. MacArthur, a licensed electrician. MacArthur testified that he inspected appellants’ boat dock after the incident at the request of the Sheriff’s Department and found the wiring poorly done and poorly maintained, with improper or absent grounding, corrosion on the circuit breakers, unprotected wires running in and out of the water, and cable which had been spliced and rewrapped using non-waterproof tape which had numerous abrasions and touched the steel dock. MacArthur stated in his affidavit that these defects were “apparent and stood out. The wiring was visibly defective.” Appellants did not rebut this evidence, and a genuine question of material fact is created thereby, as to whether appellants should have known of the hazards created by the defects in wiring at their boat dock. Appellees can recover only if appellants’ behavior was wilful and wanton. If appellants should have known of this hazard, and Kelly Missroon did not, the wiring may have constituted the sort of “hidden peril,” “pitfall,” or “mantrap” which the premises owner is obligated, even to a bare licensee, to correct. See Wren v. Harrison, 165 Ga. App. 847, 848 (303 SE2d 67) (1983). If there was such a “mantrap,” appellants’ conduct may have been wilful or wanton. See Barry v. Cantrell, supra.

Where such issues are present, the statutory requirements for summary judgment are not fulfilled. OCGA § 9-11-56. “Summary judgments should only be granted where, construing all inferences against the movant, it yet appears without dispute that the case can have but a single outcome.” Chatmon v. Church’s Fried Chicken, 133 Ga. App. 326, 327 (211 SE2d 2) (1974); Watkins v. Nationwide Mut. Fire Ins. Co., 113 Ga. App. 801 (149 SE2d 749) (1966).

Decided April 7, 1988.

J. Kenneth Moorman, Alan L. Newman, for appellants.

Howard T. Overby, Jack M. Carey, for appellees.

In the instant case the evidence does not mandate a judgment as a matter of law; a scrupulous sifting and weighing of the evidence by a jury is required. The trial court properly denied summary judgment.

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    75846.
    BEAL v. THE STATE.
    (368 SE2d 567)
   Birdsong, Chief Judge.

John Anthony Beal appeals his conviction for voluntary manslaughter and aggravated assault. He urges the general grounds, to wit, that the verdict is contrary to the evidence and without evidence, and is contrary to law, justice and equity. Held:

The deceased Bobbie Lou Sanders, age sixteen and a runaway, was staying with four other persons at the Clermont Hotel on Ponce de Leon Avenue in Atlanta. These others, some of whom were also runaways, were Bobbie’s boyfriend Brian (Curtis) Johnson; another girl, Tippy Jo Fink, and her boyfriend Kurt Pruitt; and another young man, Jason Deal. On January 17, 1987, these persons were assiduously engaged in purchasing and drinking beer, when they met up with appellant Beal, whom they did not know. The testimony of these persons (excluding the deceased) varies somewhat in detail but consistently showed the following: Beal was asked to buy some beer and he did, going with Bobbie Lou, Brian, and Tippy Jo to a store near the hotel. When the group returned to the hotel, appellant Beal either was bidden to accompany the girls to their room on the fourth floor, or he followed uninvited. Brian loitered behind.

In the group’s hotel room, appellant Beal sat on the bed with the two girls Bobbie and Tippy Jo; Bobbie asked him for a beer. Jason Deal was more or less passed out, or sleeping, on another bed; Kurt Pruitt had gone into the bathroom. When Brian arrived at the room, Tippy Jo asked him to get rid of Beal, who apparently had become an annoyance. What followed occurred so quickly as to produce some varying accounts, but the jury was authorized to conclude that after a brief verbal exchange, appellant Beal got up with his beer and as he was leaving knocked Brian into a dresser. Brian pulled out a dresser drawer and followed appellant Beal into the hall where he hit Beal in the head with the dresser drawer, shattering the drawer. Beal turned around and, having produced a knife, stabbed Brian. Kurt Pruitt then came out of the room and attempted to pull Brian away from appellant, and he was stabbed. Bobbie Lou Sanders was stabbed in the left chest and back, either when the struggling group backed up past the room door where she stood, or, according to other accounts (including defendant’s) when she went towards appellant and jumped up to hit him, or after she slapped him in the face. There was also testimony that either as Bobbie Lou was standing at the room door or as she was running beside Kurt and Brian while appellant chased Kurt and Brian down the hall, appellant grabbed Bobbie Lou and pulled her up into the air and stabbed her; or he grabbed her, pushed her up against the wall and stabbed her twice.

There was testimony that all of this occurred in a matter of seconds, but a policeman, Officer R. E. Gordon, who lived on the fourth floor of the hotel as part of a security arrangement, was downstairs when he first heard a commotion; he got on the elevator and stopped at each floor to examine the hallways, finding nothing. He arrived on the fourth floor where he saw nothing unusual, and went to his room for several minutes until he heard the commotion start up again. He went back out into the hall and observed appellant walking down the hall, waving a knife, saying, “Come on, you want some of this, come on, you want some of this.” Officer Gordon identified himself as a police officer and told appellant to turn around; appellant turned around and took a couple of steps toward Gordon with the knife in his hand. Gordon told him to drop the knife, but appellant took several more steps toward Gordon until Gordon again ordered him to drop the knife, and he did so.

The jury obviously rejected the defendant’s explanation that he acted in self-defense or by accident. All the other evidence in the case when it is reconciled, or even when it is considered in all its variety as descriptions of an event that happened too chaotically and too quickly to produce one version, is consistent with the statutory definition of voluntary manslaughter, as “causing] the death of another human being under circumstances which would otherwise be murder and [acting] solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person; however, if there should have been an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, of which the jury in all cases shall be the judge, the killing shall be attributed to deliberate revenge and be punished as murder.” OCGA § 16-5-2 (a).

Decided April 8, 1988.

J. Douglas Willix, for appellant.

Lewis R. Slaton, District Attorney, Alfred D. Dixon, Joseph J. Drolet, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.

After reviewing the evidence, we find a reasonable trior of fact could rationally find in this evidence proof of voluntary manslaughter as specifically described in § 16-5-2 (a), and aggravated assault beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


author: Banke, Presiding Judge.

text:
    76138.
    ROBERSON v. THE STATE.
    (368 SE2d 568)
   Banke, Presiding Judge.

The appellant was found guilty of committing an aggravated assault upon Cook County Deputy Sheriff Wesley Griner “by pointing a 20-gauge shotgun, a deadly weapon, at the person of Wesley Griner and threatening to shoot said Wesley Griner with said deadly weapon.” This appeal is taken from the denial of the appellant’s motion for new trial.

On the date alleged in the indictment, Griner was dispatched to investigate a domestic dispute reported to be in progress at the appellant’s residence in Cook County. Upon his arrival at the scene, he heard a woman scream and thereafter observed the appellant’s wife running towards him from behind the residence, followed closely by the appellant, who was pointing a shotgun at her back. Griner testified that, as the appellant’s wife and her son were standing at his side, the appellant asked him if he had a warrant and, upon learning that he did not, told him, “Well, if you don’t have a warrant, get your ass off of my property or I’ll blow your ass off of it.” After giving the appellant’s wife and her son an opportunity to leave, Griner departed the premises, without attempting to make an arrest.

The next day, the appellant’s wife swore out a warrant against the appellant for simple battery. Later that day, Deputy Sheriff Scott Stalnaker of the Berrien County Sheriff’s Department confronted the appellant at the residence of the appellant’s father in Berrien County, seeking to execute this warrant. Deputy Stalnaker testified that the appellant pointed a shotgun at him at this time and threatened to shoot him. Only after additional law enforcement officers arrived at the scene and the Berrien County Sheriff confronted the appellant while carrying a shotgun and wearing a bulletproof vest did the appellant put down his shotgun, thereby enabling the officers to overpower him and take him into custody. Held:

1. On the basis of the evidence presented at trial, a rational trier of fact could reasonably have found the appellant guilty beyond a reasonable doubt of committing an aggravated assault upon Deputy Griner. See generally Jackson v. Virginia, 433 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The appellant’s contention that there was no evidence from which it could be inferred that he actually pointed the shotgun at the deputy is without merit. The manner in which the appellant had held the shotgun during his confrontation with Griner was the subject of a demonstration at trial, and the deputy testified that if the shotgun had gone off while the appellant’s wife and her son were standing beside him, “it would have probably shot me or his wife or her son, you know, probably from the waist down into the legs.” Any conflict between the deputy’s testimony on this issue and that of the appellant’s witnesses was for the jury to resolve. “On appeal, our review is restricted to the legal sufficiency of the evidence, not the weight of the evidence.” Carson v. State, 171 Ga. App. 527, 528 (320 SE2d 382) (1984). The trial court did not err in denying the appellant’s motion for directed verdict, nor in rejecting the general grounds of his motion for new trial.

2. In two separate enumerations of error, the appellant contends that the state should not have been allowed to bring to the jury’s attention the events which occurred in Berrien County on the day following the events for which he was on trial. The evidence in question was clearly admissible as evidence of a similar transaction or occurrence tending to establish the appellant’s state of mind and thereby to prove his commission of the offense alleged in the indictment. On both occasions, the appellant had threatened to shoot one or more law enforcement officers with a shotgun while the officers were engaged in the lawful discharge of their official duties. The two transactions were additionally connected in that they occurred within a day of each other and in that the second stemmed directly from the first. It follows that these enumerations of error are without merit. Accord State v. Johnson, 246 Ga. 654, 655 (272 SE2d 321) (1980); Millwood v. State, 164 Ga. App. 699, 700 (296 SE2d 239) (1982); Mowell v. State, 172 Ga. App. 641 (324 SE2d 210) (1984).

3. The appellant contends that the trial court erred in charging the jury on the statutory right of a law enforcement officer to arrest with or without a warrant upon probable cause to believe that an act of family violence has been committed. See OCGA §§ 17-4-20 (a); 19-13-1. The appellant took the position at trial that if he had committed any criminal misconduct in Griner’s presence, Griner could have arrested him then and there, without waiting for a warrant. Thus, the jury charge in question may actually have been helpful to the appellant. At worst, it must be considered harmless. See generally Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976).

Decided April 8, 1988.

Robert B. Ellis, Jr., for appellant.

Lew S. Barrow, District Attorney, Timothy L. Eidson, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.


text:
    76146.
    JAMES v. ELDER.
    (368 SE2d 570)
   Banke, Presiding Judge.

Mrs. Etha King Elder died testate on June 14, 1986. Her executor, the appellee herein, filed the present action to obtain a judicial declaration that the estate was entitled to the proceeds of certain checking and savings accounts which Mrs. Elder had maintained jointly in her name and that of her daughter, the appellant herein. The appellee also sought certain ancillary injunctive relief. Following a bench trial, the court ruled that the funds belonged to the estate, prompting the daughter to file this appeal.

There is no question that each of the five accounts in question had been established by Mrs. Elder as a joint account with right of survivorship. Howevqr, the trial judge concluded that there was “no credible evidence, other than the signature cards themselves, showing an intention on the part of Mrs. Elder to make a gift to . . . [the appellant] of the funds on deposit in the amounts . . . , nor that Mrs. Elder intended that the [appellant] would be entitled to receive such funds upon Mrs. Elder’s death.” To the contrary, the court concluded that it had been established by “clear and convincing evidence that the sole purpose for which . . . [the appellant’s] name 'was added to each of said accounts was for the convenience of the depositor of the funds, Mrs. Elder.” The court accordingly ruled that the appellee executor was entitled to receive the funds for distribution in accordance with the provisions of the will. Held:

Two of the accounts in question were established as joint accounts subsequent to 1976 and were consequently subject to OCGA § 7-1-813 (Ga. L. 1976, p. 1388, § 8), which provides, in pertinent part, as follows: “(a) Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent, unless there is clear and convincing evidence of a different intention at the time the account is created.” (Emphasis supplied.) Although the law governing the accounts established prior to 1976 is less clear, it would appear that the depositor’s actual intention is controlling with respect to them, also. In Georgia Savings &c. Co. v. Sims, 332 FSupp. 1306 (N.D. Ga. 1971), the United States District Court for the Northern District of Georgia concluded that, under Georgia law, the designation of an account by a depositor as a joint account with right of survivorship was not conclusive as to the depositor’s intent and that no transfer of ownership would be deemed to have occurred if it were shown that the depositor’s actual intent had merely been to provide for his own convenience rather than to make a present gift. Cf. Taylor v. C & S Bank of Ga., 226 Ga. 15 (2) (172 SE2d 617) (1970); Leonas v. Johnson, 122 Ga. App. 160 (2) (176 SE2d 506) (1970).

In the present case, it was established without dispute that the appellant had not been present when any of the accounts at issue were opened; that all of the contributions to the accounts had been made by the decedent; that in placing the appellant’s name on the accounts, the decedent had acted on her accountant’s recommendation that she add a second party to all of her savings and checking accounts for convenience; that the appellant had never been in possession of any of the passbooks associated with the savings accounts; that the appellant had not written any checks on the checking account until after the decedent became unable to write checks for herself; and that, with the exception of one check which the appellant identified in the checkbook as a loan and promptly repaid, all of the checks written by the appellant had been for the immediate benefit of the decedent.

The only evidence offered by the appellant, other than the signature cards themselves, tending to show that the decedent had intended to transfer any present or future interest in the funds to her was her own testimony that the decedent had repeatedly told her, “ ‘Sugar, your name is on there; it’s yours. ... If it’s got your name on it, it’s yours.’ ” However, because these alleged declarations were offered by the person who stood the most to gain from their admission, the trial judge was authorized, if not required, to reject them as self-serving. See Irby v. Brooks, 246 Ga. 794, 796 (273 SE2d 183) (1980). The record thus supports the trial judge’s determination that the decedent’s lack of intention to make a gift of the funds to the appellant had been established by clear and convincing evidence. It follows that, applying either OCGA § 7-1-813 (a) or pre-existing law, the trial judge was authorized to declare that the funds belonged to the estate.

Decided April 8, 1988.

W. W. Hemingway, Tim D. Hemingway, for appellant.

J. Robert Sikes, for appellee.

Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.

       Banks were authorized by § 13-2039 of the Code of 1933 to pay funds on deposit in joint accounts to either of the persons in whose names the account was established; however, this Code section was interpreted as governing merely the liability of the depository bank and not “the right of the property as between the parties.” See Clark v. Bridges, 163 Ga. 542, 546 (136 SE 444) (1926); Nash v. Martin, 90 Ga. App. 235 (1) (82 SE2d 658) (1954).


author: Pope, Judge.

text:
    75947, 75948.
    ETHRIDGE v. TRAVELERS INDEMNITY COMPANY; and vice versa.
    (368 SE2d 542)
   Pope, Judge.

Plaintiff Mary Ethridge was injured on October 22, 1983 while riding as a passenger in the automobile of Donald Kehres. The Kehreses’ automobile was insured under a policy of insurance originally issued by defendant Travelers Indemnity Company (Travelers) on February 14, 1975. The record shows that in addition to the $5,000 minimum Personal Injury Protection (PIP) coverage statutorily mandated by OCGA § 33-34-4, and the “optional” PIP coverage which the insurer also must offer pursuant to OCGA § 33-34-5, Travelers also offered the Kehreses certain additional no-fault coverage with coverage limits up to $100,000. This coverage, however, to the extent it exceeded the $5,000 minimum no-fault coverage mandated by statute, was limited to the named insured and resident relatives.

Although the Kehreses initially rejected all the “options” described above, choosing instead only the basic PIP coverage, on November 2, 1982 the Kehreses verbally requested the maximum optional coverage which provided $100,000 no-fault coverage for the named insured and the named insured’s resident relatives. Travelers amended the policy by endorsement to provide this coverage.

Following Travelers’ refusal to provide no-fault benefits to plaintiff in excess of the $5,000 no-fault statutory minimum, plaintiff instituted the present declaratory judgment and damages action, contending that she was entitled to the benefits provided under the optional coverage. Travelers denied coverage on the basis that plaintiff was neither an insured nor a resident relative of the named insured. On motion for summary judgment by both parties, the trial court found that plaintiff was entitled to coverage up to the contractual limit of $100,000, but granted defendant’s motion seeking to deny plaintiff’s claim for penalties, punitive damages and attorney fees. Held:

Case No. 75948

Pursuant to OCGA § 33-34-4 owners of motor vehicles required to be registered in this state must obtain both liability coverage and $5,000 coverage for compensation to insured injured persons without regard to fault for certain medical expenses, loss of income or earnings, expenses for services and funeral expenses. The insurer must also make available “optional” no-fault coverage, up to an aggregate limit of $50,000 per person. OCGA § 33-34-5; Carter v. Banks, 254 Ga. 550 (2) (330 SE2d 866) (1985). To summarize, our No-Fault Act provides that “[t]he insurer cannot offer less than $50,000 and the policyholder cannot accept less than $5,000.” See, e.g., Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 711 (300 SE2d 673) (1983). It can be seen that “optional” no-fault coverage affords an option only for the policyholder, who is free to accept or reject such coverage, not to the insurer, who is required to offer such coverage to its insureds.

With this statutory scheme in mind, we turn to the resolution of the issue presented by the present case, to wit, whether an insurer offering additional non-statutory no-fault coverage can limit such coverage to the named insured and his or her resident relatives. Relying on State Farm Fire & Cas. Co. v. Martin, 174 Ga. App. 308 (329 SE2d 577) (1985), plaintiff argues that Travelers cannot exclude from coverage those persons defined as insureds pursuant to OCGA § 33-34-2 and would have us answer that question in the negative. In State Farm v. Martin, the issue was whether a provision whereby the insurer sought to limit “optional” coverage pursuant to OCGA § 33-34-5 by providing only limited coverage to certain persons, including pedestrians, was valid. Noting that “a pedestrian by statutory definition (OCGA § 33-34-2) is as much an insured as the policyholder” (State Farm v. Martin, supra at 308-09) and adopting the trial court’s reasoning that “ ‘within the statutory language all people covered by minimum PIP coverage are entitled to optional PIP benefits when properly elected by the insured,’ ” (id. at 308), we found that such a provision was invalid as violating the optional no-fault statute. Arguing that since the statutory definition of insured also includes passengers, plaintiff urges that the holding in State Farm v. Martin is controlling and we must also hold the limitation in the present case violative of public policy. Although we agree that State Farm v. Martin is correct insofar as statutory “optional” no-fault coverage is concerned, we disagree that the same result must obtain in the case sub judice.

“ ‘In general, it must be recognized that insurance policies are of the nature of personal contracts. The insurer is selective of those risks which revolve around the character, integrity, and personal characteristics of those whom they will insure.’ Langley v. Pacific Indemnity Co., 135 Ga. App. 29, 30-31 (217 SE2d 369) (1975).” Bailey v. Ga. Mut. Ins. Co., 168 Ga. App. 706, 708-09 (309 SE2d 870) (1983). Similarly, “[a]n insurance company may fix the terms of its policies as it wishes, provided they are not contrary to law, and it may insure against certain risks and exclude others. [Cits.]” Standard &c. Ins. Co. v. Davis, 145 Ga. App. 147, 152 (243 SE2d 531) (1978). As to the policy at issue in the present case, there is no question that the statutorily mandated requirements concerning no-fault coverage, including the offering of “optional” no-fault coverage, were met by the insurer. Cf. Government Employees Ins. Co. v. Mooney, 250 Ga. 760 (1) (300 SE2d 799) (1983); Flewellen, supra. It is clear then that the no-fault coverage provided by the insurer in the present case was in addition to these compulsory no-fault requirements. Hence, unlike coverage pursuant to OCGA § 33-34-5, the coverage at issue here was truly optional or voluntary as to both the insurer and the insured. In other words the insurer was under no obligation to offer this coverage and the insured was free to accept or reject this coverage as he saw fit. Therefore, the insurer was not subject to the requirements of the No-Fault Act insofar as the act requires no-fault coverage be extended to all “insureds” defined in OCGA § 33-34-2 (5). Standard &c. Ins. Co., supra at 151-52. “That is to say, the compulsory insurance law does not establish public policy as to sums greater than those required by such law. [Cits.]” Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335, 342 (329 SE2d 136) (1985). Accordingly, the decision of the trial court granting summary judgment to the plaintiff to recover optional no-fault benefits under the terms of the policy must be reversed.

Decided April 4, 1988

Rehearing denied April 11, 1988

William L. Skinner, for appellant.

Case No. 75947

In light of our decision in Case No. 75948 we hereby direct the trial court to enter summary judgment for defendant Travelers. Accordingly, the question concerning whether the trial court erred in denying plaintiff’s claims for penalties, punitive damages and attorney fees is moot.

Judgment reversed in Case No. 75948; appeal dismissed in Case No. 75947.

McMurray, P. J., and Benham, J., concur.

Bryan F. Dorsey, for appellee.


author: Benham, Judge.

text:
    75923.
    DUKES v. THE STATE.
    (369 SE2d 259)
   Benham, Judge.

In this appeal from his conviction of trafficking in cocaine, appellant contends in his sole enumeration of error that the evidence was not sufficient to support a conviction for that offense. Specifically, he argues that the evidence is not sufficient to show that he was in actual possession of cocaine as is required by OCGA § 16-13-31 (a) (1).

“A person who knowingly has direct physical control over a thing at a given time is in actual possession of it.” Dalton v. State, 249 Ga. 720 (292 SE2d 834) (1982). Relying on Dalton, appellant points to evidence that he was the passenger in the car when he and his co-defendant were arrested, and to his co-defendant’s testimony that appellant never had exclusive control of the keys to the car, and concludes that the evidence does not show actual possession on his part such as would authorize a conviction. We disagree.

In addition to the evidence relied upon by appellant, the record contains evidence that appellant and his co-defendant came together from Miami for the purpose of delivering cocaine; that they had already made three deliveries before they were arrested; that just before their arrest, both appellant and the co-defendant loaded luggage into the trunk of the car in which they had traveled; and that the cocaine was found in the trunk. “Whether he had physical possession of the cocaine, appellant aided and abetted its actual physical possession and is guilty of the offense of trafficking under OCGA § 16-13-31 and under § 16-2-20, as a party to the crime . . . We decline to hold the legislature meant to exclude from the purview of § 16-13-31 a person in active participation in trafficking in cocaine . . . The ‘actual possession’ required by OCGA § 16-13-31 to authorize a conviction for trafficking refers not merely to physical custody but refers to actual active participation in the possession of such substances so as to be a party to the crime of trafficking.” Barrett v. State, 183 Ga. App. 729 (2) (360 SE2d 400) (1987). The evidence at trial was sufficient to authorize a rational trier of fact to find appellant guilty of trafficking in cocaine beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Barrett v. State, supra.

Judgment affirmed.

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

Decided April 11, 1988.

Michael H. Lane, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Andrew Weathers, Assistant District Attorneys, for appellee.


text:
    75943.
    COHN v. THE STATE.
    (368 SE2d 572)
   Deen, Presiding Judge.

The appellant, Tammy Cohn, provided child care for the twenty-two-month-old daughter of Leslie Gardner while the latter worked. On July 29, 1986, the child received a severe head injury when an angry Cohn threw her against a television set. Following her conviction for aggravated battery and operating a non-licensed child care facility, Cohn brings this appeal, enumerating as error several evidentiary rulings by the trial court. Held:

1. Another child for whom Cohn provided care at the time of the incident was allowed to testify that on previous occasions Cohn had gotten angry at the child victim because of the child’s crying. The objection Cohn raised at trial was relevancy; on appeal, she contends that the admission of this testimony violated Rule 31.3 of the Uniform Superior Court Rules, which requires the prosecutor to give pretrial notice of an intent to present evidence of similar transactions or occurrences. This evidence certainly was relevant, and we will not consider whether admission of the testimony violated Rule 31.3, since that objection was not raised in the trial court. Hagger v. State, 179 Ga. App. 16 (345 SE2d 118) (1986).

2. On the grounds of relevance, the trial court disallowed a forensic pathologist (as a defense witness) to testify (1) why neurologists and neurosurgeons consulted with him, and (2) that many cases of suspected child abuse in which he had been consulted had been determined to be accidental. Both rulings were correct, as neither response would have tended to show the guilt or innocence of the defendant of the offense for which she was being tried. OCGA § 24-2-1, generally.

3. The trial court also disallowed defense counsel’s inquiry of the forensic pathologist’s opinion whether or not the child’s injury was caused deliberately, on the grounds that such an opinion would impermissibly address the ultimate issue to be decided by the jury. Expert opinion testimony on even the ultimate issue is admissible where the conclusion of the expert is one beyond the ken of the average layman. Smith v. State, 247 Ga. 612, 619 (277 SE2d 678) (1981); Nichols v. State, 177 Ga. App. 689 (2) (340 SE2d 654) (1986). Resolution of the issue of whether the appellant had deliberately injured the child in this case was not beyond the ability of the average layman, and the trial court properly excluded the testimony.

Decided April 11, 1988.

Glyndon C. Pruitt, for appellant.

Rafe Banks III, District Attorney, Garry T. Moss, Assistant District Attorney, for appellee.

4. A licensed applied psychologist was allowed to testify about the various characteristics constituting a child abuser profile, and to state his opinion that based upon this testing and assessment of the appellant, Cohn did not fit that profile. The appellant’s contention that the trial court disallowed such testimony is mistaken. The trial court did exclude as irrelevant the psychologist’s testimony concerning his evaluation of Cohn’s ability to reason and function under stress, which was proffered to explain why Cohn initially may not have been truthful about how the child was injured. However, whatever slight pertinence this testimony may have had, we are unpersuaded that its exclusion was reversible error.

Judgment affirmed.

Sognier, J., concurs. Carley, J., concurs in Divisions 1, 3, 4 and in the judgment.


text:
    76007.
    MYLES v. THE STATE.
    (368 SE2d 574)
   Benham, Judge.

This appeal is from appellant’s conviction of burglary.

1. In his first enumeration of error, appellant contends that the trial court erred in denying appellant a continuance for the purpose of obtaining a report concerning a court-ordered psychiatric examination. We find no error in that regard.

Although he had represented appellant in this case for several months, defense counsel did not request a psychiatric examination until six days before trial was scheduled. The prosecuting attorney explained to the court, without demurrer from defense counsel, that he had been able to arrange for an examination of appellant notwithstanding the shortness of notice, and that although no written report was yet available, the examiner had told the prosecuting attorney, who had promptly informed defense counsel, that the results of the examination would not support a claim of incompetency to stand trial or a defense of insanity. Under those circumstances, we find no abuse of the discretion with which a trial court is vested in considering motions for continuance. O’Neal v. State, 254 Ga. 1 (2) (325 SE2d 759) (1985).

Decided April 11, 1988.

Jerry C. Gray, for appellant.

Timothy G. Madison, District Attorney, T. David Motes, Assistant District Attorney, for appellee.

2. The second issue raised by appellant is the sufficiency of the evidence. The testimony and exhibits at trial showed that a computer and its accessories, valued together at $1,500, were stolen from a church in a burglary. Within 30 hours of the burglary, appellant pawned the computer and accessories for $100 in a town some 70 or 80 miles from the scene of the burglary. The officer who arrested appellant testified that appellant made a statement in which he claimed to have bought the computer in an auction for $150. At trial, appellant testified that the officer had invented the statement. Appellant also testified that he had no memory at all of the burglary or of the pawnshop. Although the proprietor of the pawnshop testified that appellant showed him a driver’s license, appellant denied that he had been issued one.

Considering the proof of the commission of a burglary, appellant’s recent possession of the goods stolen in that burglary, and the conflicts between his testimony and his statements, along with all the other circumstances of the case, we find the evidence sufficient to authorize a rational trier of fact to find appellant guilty of burglary beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Williamson v. State, 248 Ga. 47 (1) (281 SE2d 512) (1981). Appellant’s reliance on Knowles v. State, 124 Ga. App. 377 (4) (183 SE2d 617) (1971), for the proposition that unauthorized entry cannot be inferred from recent possession of stolen goods is unavailing. There, the evidence did not independently establish an unauthorized entry; here, it did.

3. Finally, appellant contends that the trial court’s instruction to the jury on the inference which may arise from proof of possession of goods recently stolen in a burglary was burden-shifting. The trial court’s charge was almost verbatim the charge approved by the Supreme Court in Division 2 of Williamson, supra, and is not subject to appellant’s attack.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    76011.
    LEWIS v. FOSTER et al.
    (368 SE2d 575)
    Decided April 11, 1988.

      Chevene B. King, Jr., for appellant.
    C. Ashley Royal, Leigh G. Brogdon, for appellees.
   McMurray, Presiding Judge.

In this personal injury action, defendants served interrogatories upon plaintiff on or about December 9, 1986. Answers to the interrogatories were not forthcoming. Accordingly, on July 29, 1987, defendants moved for an order compelling plaintiff to answer the interrogatories. Such an order was issued on August 6, 1987. Therein, plaintiff was ordered to answer defendants’ interrogatories within 15 days. Plaintiff did not answer the interrogatories within the time allotted and, on September 8,1987, defendants moved for sanctions. Two days later, without affording plaintiff a hearing, the trial court granted defendants’ motion for sanctions and dismissed plaintiff’s complaint. This appeal followed. Held:

The trial court erred in imposing the sanction of dismissal without affording plaintiff an opportunity to explain the circumstances surrounding noncompliance with the August 6, 1987 order. Harwood v. Great American Mgt. & Investment, 164 Ga. App. 703 (298 SE2d 263); Delta Equities v. Berry, 127 Ga. App. 590 (194 SE2d 284). See also Swindell v. Swindell, 233 Ga. 854 (213 SE2d 697); Maxey v. Covington, 126 Ga. App. 197 (190 SE2d 448). After all, the sanction of dismissal cannot be imposed without a showing of willfulness. Swindell v. Swindell, 233 Ga. 854, supra.

Judgment reversed.

Pope and Benham, JJ., concur.


text:
    75857, 75858.
    HAMMONTREE v. HAMMONTREE (two cases).
    (368 SE2d 576)
   Pope, Judge.

In February of 1985, plaintiff Judy Faye Hammontree and defendant Johnny Mac Hammontree entered into a divorce decree in which they consented to the wife having custody of their minor child with child support of a stated amount to be paid by the husband. It appears that over time, by mutual agreement, the husband assumed primary custody of the child and adjusted his child support payments to the wife accordingly. However, in August of 1986 the wife filed, in the Superior Court of Clayton County where the divorce decree was originally entered and where she still resided, a motion for contempt against the husband for non-payment of child support. The husband responded and counterclaimed for modification of the divorce decree, requesting a change in custody. After a hearing, the court issued an order finding the parties had mutually agreed to modification of the custody agreement but awarding the wife overdue child support payments in the amount of $450. The court also awarded custody of the child to the husband.

Timely notice of appeal was filed by the wife on December 9, 1986. However, a transcript of the hearing was not filed with the clerk of the trial court until April 8, 1987. On April 16, 1987 the husband filed with the trial court a motion to dismiss the appeal for the wife’s failure to cause the transcript of the proceedings to be filed within thirty days as required by OCGA § 5-6-42. The trial court dismissed the notice of appeal. The wife hereby appeals the dismissal of her notice of appeal (Case No. 75858) and also appeals the order granting the counterclaim for change of custody (Case No. 75857).

Case No. 75858

Pursuant to OCGA § 5-6-48 (c), the trial court may dismiss an appeal “where there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by such party.” In its order dismissing the wife’s appeal, the lower court found the wife’s delay in filing the transcript was unreasonable. However, no finding was made that the delay was inexcusable. The dismissal of an appeal must be supported by a finding that the delay was both unreasonable and inexcusable. Where the lower court makes no finding as to one of these requirements of OCGA § 5-6-48 (c), the dismissal will be overturned. Young v. Climatrol Southeast Distrib. Corp., 237 Ga. 53 (226 SE2d 737) (1976); White v. Olderman Realty &c. Co., 163 Ga. App. 57 (293 SE2d 726) (1982); ITT Industrial Credit Co. v. Carpet Factory, 140 Ga. App. 204 (230 SE2d 354) (1976). In support of the dismissal of appeal, the husband argues that a delay of over thirty days is prima facie unreasonable and inexcusable. See Bouldin v. Parker, 173 Ga. App. 526 (1) (327 SE2d 760) (1985). However, the record in this case shows the wife’s attorney offered under oath an explanation for the delay, claiming he misunderstood the directions given to him by an unidentified deputy court clerk. The lower court failed to make a finding as to whether this explanation excused the delay. We cannot say that the explanation provided by the attorney as the reason for his delay was inexcusable as a matter of law. Therefore, the court erred in dismissing the wife’s appeal.

Case No. 75857

Having determined that the wife’s appeal was improperly dismissed, we now turn to the substantive grounds for her appeal of the order granting a change in custody.

The statutory law of this state prohibits a complaint seeking a change of legal custody of a child to be brought in response to any action or motion to enforce a child custody order. OCGA § 19-9-23. “[A] counterclaim seeking modification of a former custody judgment based on a change of conditions cannot be filed in answer to an application for contempt.” Word v. Word, 236 Ga. 100, 101 (222 SE2d 382) (1976). Accord Culpepper v. Brewer, 242 Ga. 210 (248 SE2d 619) (1978); McNeal v. McNeal, 233 Ga. 836 (213 SE2d 845) (1975); Davis v. Davis, 230 Ga. 33 (2) (195 SE2d 440) (1973).

Reliance by the lower court upon the opinion of the Georgia Supreme Court in Buckholts v. Buckholts, 251 Ga. 58 (1) (302 SE2d 676) (1983), is misplaced. That case stands for the proposition that where one party files a petition to modify a divorce decree, then the responding party may raise the issue of the plaintiff’s contempt of the original order, even if the petition for modification is brought in a different county from that issuing the original decree. Buckholts does not change the long-standing rule that when a plaintiff files nothing more than an application to hold the defendant in contempt of a divorce decree, a counterclaim seeking modification of the decree is not cognizable. Frasca v. Frasca, 254 Ga. 532 (1) (330 SE2d 889) (1985).

We note that in all but one of the cases addressing this issue which were decided prior to the enactment of the Child Custody Intrastate Jurisdiction Act of 1978 (OCGA §§ 19-9-20 through 24), one ground for holding the counterclaim for change of custody to be improper was lack of jurisdiction over the person against whom the counterclaim was brought. See McNeal v. McNeal, supra; Word v. Word, supra; Davis v. Davis, supra. Jurisdiction to bring a complaint for change of custody is not lacking in this case because the contempt proceeding was brought in the county in which the appellant wife resides. While it may seem contrary to the goal of promoting judicial economy to require a separate action to be brought in a case, such as the one now before us, where the court hearing the contempt proceeding also has jurisdiction over a change of custody proceeding, we are nevertheless constrained by the clear and unequivocal language of OCGA § 19-9-23 to rule that these two issues must be brought before the court as separate actions. Accordingly, that portion of the order granting the husband’s counterclaim for a change in custody is reversed.

Judgments reversed.

McMurray, P. J., and Benham, J., concur.

Decided April 12, 1988.

S. Lee Storesund, for appellant.

Nancy F. Lawler, for appellee.


text:
    76371.
    COLLUM v. THE STATE.
    (368 SE2d 578)
   Banke, Presiding Judge.

At the conclusion of a non-jury trial, the appellant was found guilty of the charge that he had committed vehicular homicide by causing the death of another person, without malice aforethought, by operating a motor vehicle while under the influence of alcohol. See generally OCGA § 40-6-393 (a). On appeal, his sole contention is that the evidence was insufficient to support the conviction.

The evidence showed that while driving on U. S. Highway 411, the appellant was involved in a collision with a truck which was attempting to pass him. A passenger in the appellant’s vehicle was fatally injured as a result of the collision. The driver of the truck testified that he had been following the appellant for approximately five miles and that the appellant had impeded traffic during that time by travelling at an erratic rate of speed and weaving within his lane of traffic. The investigating police officer testified that he had smelled a strong odor of alcohol on the appellant’s person, and analysis of a blood sample obtained from the appellant at the hospital following the accident revealed that his blood-alcohol content was .08 percent at the time the sample was taken. The appellant admitted having consumed a six-pack of beer approximately two and one-half hours prior to the accident. Based on the foregoing evidence, a forensic chemist testified that the appellant’s blood-alcohol level at the time of the accident would have been between .105 and .13 percent. There were no witnesses to the incident other than the appellant and the truck driver. Held:

The appellant argues that there was no credible evidence to indicate that he was under the influence of alcohol at the time of the accident to such a degree as to render him a less safe driver, with the result that there was no evidentiary support for a conclusion that he was in violation of the driving-under-the-influence statute, OCGA § 40-6-391 (1). See generally Peters v. State, 175 Ga. App. 463, 464 (333 SE2d 436) (1985). This contention is without merit. The expert testimony to the effect that the appellant’s blood-alcohol content at the time of the accident was between .105 and .13 percent was sufficient, pursuant to OCGA § 40-6-392 (b) (3), to authorize the conclusion that he was “under the influence of alcohol” within the contemplation of OCGA § 40-6-391 (a) (1). Based on this evidence, combined with the evidence of his erratic driving, we hold that a rational trier of fact could reasonably have found the appellant guilty of vehicular homicide beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided April 12, 1988.

Jefferson L. Davis, Jr., for appellant.

Darrell E. Wilson, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.


author: Deen, Presiding Judge. Carley, Judge,

text:
    76466.
    CRISWELL v. THE STATE.
    (368 SE2d 579)
   Deen, Presiding Judge.

The appellant, Troy Criswell, was convicted of criminal attempt to escape. On appeal, he contends that the evidence was insufficient to support the conviction and that the prosecutor improperly commented on the effect of the jury’s verdict.

On June 18, 1987, Criswell was an inmate at the Macon-Bibb County Law Enforcement Center, serving out a sentence for armed robbery. In the early evening of that day, Sgt. Albert Hall of the Bibb County Sheriff’s Department discovered Criswell and another inmate, Robert Darley, in a plumbing chase inside the walls of the facility, prying at a vent. Criswell and Darley had obtained access to the plumbing chase through a hole that had been knocked in the wall of an unoccupied cell. They claimed to have entered the plumbing chase only to repair a broken shower, and denied any knowledge of the various tools that were found in the chase. Held:

1. In attacking the sufficiency of the evidence, Criswell contends that the evidence contraindicates any intent to escape, since (1) both he and Darley were familiar with the lay-out of the jail, and (2) despite that familiarity, he and Darley were going in the wrong direction to break out of jail. However, as Judge Bleckley observed, “[m]en, even when their ends are wise and virtuous, do not always select the best means at their command. There is no presumption that those having foolish and wicked ends in view, are either more discreet or more fortunate. It is a great blunder to engage in crime at all, and how many subordinate or secondary blunders may occur in the course of a criminal transaction, is matter of much uncertainty. ... He acted like a fool, and it is altogether unlikely that he reasoned like a philosopher.” Tatum v. State, 59 Ga. 639, 640 (1877). Viewing the evidence in the light most favorable to the verdict, we conclude that the evidence authorized a rational trier of fact to find Criswell guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided April 12, 1988.

Carl J. Wilson, Jr., for appellant.

Willis B. Sparks III, District Attorney, Kimberly S. Shumate, Assistant District Attorney, for appellee.

2. During closing argument, the prosecutor pointed out that the jury could “tell Criswell that, ‘Even though you’re serving ten years, we’re going to let you go today and we can just forget about [tbe attempted escape].’ But you know somebody else we’ve got to be concerned about in this case? We’ve got to be concerned about the other people in the jail. We’ve got to be concerned about the guards who work in jail, the other people of this community. Because we’re sending a message.” Over defense counsel’s objection that it improperly commented on the effect of the jury’s verdict, the trial court allowed the argument, on the grounds that “[h]e’s saying that their verdict ought to be based on the evidence and should not be a pardon and he’s attempting to give a reason, and that’s perfectly proper.” We agree with the trial court.

Judgment affirmed.

Sognier, J., concurs. Carley, J., concurs specially.

Carley, Judge,

concurring specially.

I agree that the judgment of conviction should be affirmed. With regard to the issue discussed in Division 2, the argument of the prosecutor was not improper and the trial court clearly did not err in denying the motion for mistrial. Burke v. State, 153 Ga. App. 769, 771 (8) (266 SE2d 549) (1980); Callahan v. State, 179 Ga. App. 556, 564 (5) (347 SE2d 269) (1986); August v. State, 180 Ga. App. 510, 512 (2) (349 SE2d 532) (1986).


text:
    75611.
    ROBERTS v. THE STATE.
    (368 SE2d 522)
   McMurray, Presiding Judge.

Defendant appeals his conviction of the offense of armed robbery. Held:

Decided March 4, 1988

Rehearing denied April 13, 1988

Tyree Roberts, pro se.

Hobart M. Hind, District Attorney, for appellee.

1. Defendant’s first two enumerations allege evidentiary errors which do not appear in the transcript of the trial and apparently are purported to have occurred at defendant’s commitment hearing. However, the factual assertions, upon which these enumerations rest, appear only in defendant’s brief and enumerations of error and do not appear in the record sent up by the Clerk of the trial court. This court cannot consider factual representations which do not appear in the record. Pittman v. State, 179 Ga. App. 760, 762 (4) (348 SE2d 107).

2. In his third enumeration defendant contends that an offensive weapon was not used to take the victim’s property as required under OCGA § 16-8-41. However, two employees of a restaurant testified that defendant pointed a gun at them while he removed the contents of the cash register. This evidence was sufficient to enable a rational trier of fact to find defendant guilty of armed robbery beyond a reasonable doubt. Durham v. State, 179 Ga. App. 636, 638 (5) (347 SE2d 293); Cook v. State, 179 Ga. App. 610, 611 (1, 2) (347 SE2d 664); Robinson v. State, 180 Ga. App. 248, 249 (1) (348 SE2d 761). See also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

3. Defendant enumerates as error the trial court’s failure to charge on the lesser offense of robbery. “The record reflects that after the jury retired for deliberations, the court asked [defendant’s] attorney if he had any exceptions to the charge. He responded that he did not. Applying the Georgia Supreme Court’s holding in Jackson v. State, 246 Ga. 459 (271 SE2d 855) (1980), we conclude that the [defendant’s] right to raise this issue on appeal was thereby waived.” Harper v. State, 180 Ga. App. 20, 21 (2) (348 SE2d 318).

4. Finally, defendant contends for the first time on appeal, that his arrest was illegal due to defects in the arrest warrant. This court will not consider questions raised for the first time on appeal. Laidler v. State, 180 Ga. App. 213, 214 (1) (348 SE2d 739). Additionally, “where, as here, the defendant has been indicted and convicted, an illegal arrest is not in and of itself a ground of reversal.” Anderson v. State, 152 Ga. App. 268 (1) (262 SE2d 560).

Judgment affirmed.

Sognier and Beasley, JJ., concur.


author: Sognier, Judge.

text:
    75950.
    FIRST UNION BANK OF GEORGIA v. DANIEL.
    (368 SE2d 768)
   Sognier, Judge.

Jumelle Weathers Daniel, formerly Jumelle Weathers Donnelly, brought an action against Georgia Railroad Bank & Trust Company, now First Union Bank, and against twelve merchants, to recover damages arising out of her arrest on charges of issuing and uttering worthless checks. The jury verdict and judgment in favor of the merchants was reversed by this court in Daniel v. Bi-Lo, Inc., 178 Ga. App. 849 (344 SE2d 707) (1986). The merchants then paid Daniel $45,000 in exchange for her covenant not to sue them, and they are not involved in this appeal. In Daniel v. Ga. R. Bank &c. Co., 255 Ga. 29 (344 SE2d 659) (1985), the Supreme Court reversed the trial court’s grant of summary judgment in favor of the bank based on its assertion that Daniel’s claims against it were barred by the statute of limitations, and the case against the bank proceeded to trial on two counts: malicious prosecution and negligence. The trial court granted the bank’s motion for a directed verdict on the malicious prosecution count, which ruling is not appealed. The trial court allowed the case to go to the jury on Daniel’s negligence claim, and the jury returned a verdict for Daniel in the amount of $75,000. The bank appeals.

The facts of this case have been set forth at length in both this court’s and the Supreme Court’s previous opinions, see Daniel v. Ga. R. Bank &c. Co., 173 Ga. App. 888 (328 SE2d 552) (1985), rev’d 255 Ga. 29 (334 SE2d 659) (1985), and will not be repeated in detail here. The record reveals that at least at some point before appellee’s arrest appellant became satisfied that the account was opened fraudulently and that the “real” Jumelle Donnelly (appellee) had not written the checks. Appellee alleged that the bank was negligent in returning the worthless checks to the merchants stamped either “account closed” or “insufficient funds” (although both were true), rather than indicating to the merchants in some way that appellee was not responsible. Appellee further maintained that this “negligence” was actionable despite appellant’s undisputed lack of intent to cause appellee’s arrest or confinement.

1. Appellant argues there is no such tort as negligent false arrest or negligent imprisonment in Georgia, citing Stewart v. Williams, 243 Ga. 580, 581-582 (1) (255 SE2d 699) (1979). While that is true, we note that there is some confusion in the law in this area, particularly as regards what constitutes actual damages when a defendant’s negligence causes a “false” arrest or imprisonment. However, we need not address those questions here, because our examination of the record leads us to the conclusion that under the facts sub judice the bank’s conduct was not negligent. In fact, here, as in Baggett v. Nat. Bank & Trust Co., 174 Ga. App. 346, 348 (2) (330 SE2d 108) (1985), “[w]hile it is certainly true that the owner of a business has a duty to protect its customers from injury caused by the tortious misconduct of its employees ([cits.]), the undisputed evidence refutes the existence of such misconduct in this case.” First, the undisputed evidence in the instant case reveals that appellee was not even a customer of appellant. Second, the evidence shows that when appellant was satisfied, by its own investigation, that appellee was not the person who had uttered the worthless checks in question, it went directly to the sheriff’s department, which had responsibility for investigating the crimes, and informed that department of all that its own investigation had disclosed, specifically including the fact that appellee was not the person who had opened the account or written the checks. Appellant turned over to the sheriff’s department the photograph, taken by its hidden camera, of the person who had opened the account using appellee’s name and identification, and other information gleaned from its own investigation which ultimately resulted in identification by the sheriff’s department of the perpetrator of the crimes. Appellant further requested that the sheriff’s department notify the merchants to whom the checks were written, so that they could come forward and identify positively the person who actually wrote and passed the checks. No evidence in the record suggests that appellant had any knowledge that arrest warrants were outstanding against appellee.

Even construing this evidence in a light most favorable to appellee, the party opposing the motion for a directed verdict, see Ranger Constr. Co. v. Robertshaw &c. Co., 166 Ga. App. 679, 681 (1) (305 SE2d 361) (1983), we find no evidence of negligent conduct on the part of the bank. “ ‘ “In reviewing the overruling of a motion for a directed verdict, the proper standard to be utilized by the appellate court is the ‘any evidence’ test. [Cits.]” [Cit.]’ [Cit.]” Life Ins. Co. of Ga. v. Helmuth, 182 Ga. App. 750, 752 (1) (357 SE2d 107) (1987). “ ‘We are mindful that it is only in clear cases that the court has authority to decide questions of negligence as a matter of law. It is generally a jury question. But where, in the evidence, there is no reasonable ground for two opinions it then becomes a matter of law and not a question of fact for the jury.’ [Cit.]” Anderson v. Dunwoody North Driving Club, 176 Ga. App. 210, 211 (335 SE2d 451) (1985). Since there is no evidence of any negligence on the part of appellant, the trial court erred by denying appellant’s motion for a directed verdict.

2. Even assuming, however, that the bank’s handling of the returned checks could be described as negligent, any such negligence had been cured by the bank’s subsequent actions, and was not the cause of appellee’s arrest. It is uncontroverted that the sheriff’s department knew, when it arrested appellee, that she was not the person described in the warrants. The warrants described the perpetrator as a black female, whereas appellee is a white female. Appellee was arrested and taken into custody by the sheriff’s department despite its having knowledge, imparted by appellant, that someone was using appellee’s name, and that appellee was not responsible for the crimes. Thus, appellee’s unfortunate arrest was proximately caused not by appellant’s actions in stamping the returned checks, but by the sheriff’s department acting despite its knowledge that she was not the person named in the warrants. “ Tt is well settled that there can be no proximate cause where there has intervened between the act of the defendant and the injury to the plaintiff, an independent, intervening, act of someone other than the defendant, which was not foreseeable by defendant, was not triggered by defendant’s act, and which was sufficient of itself to cause the injury. [Cit.]’ (Emphasis supplied.) [Cit.] . . . ‘(W)here the evidence plainly and manifestly shows that the injury was caused by the intervening efficient act of [a] third person . . . , the defendant can not be held responsible for having produced the injury, and the question is then one of law for determination by the court, and not one of fact for the jury.’ [Cit.]” Lewis v. Atlanta Cas. Co., 179 Ga. App. 185, 189 (345 SE2d 858) (1986). Accordingly, in the case sub judice, even assuming its handling of the returned checks was negligent, appellant was still entitled to judgment as a matter of law, and the trial court erred by denying its motion for a directed verdict. We therefore reverse the trial court’s judgment and direct that judgment be entered below in accordance with appellant’s motion. See Helmuth, supra at 752 (1).

Decided April 4, 1988

Rehearing denied April 13, 1988

John A. Howard, Patrick J. Rice, for appellant.

Jay M. Sawilowsky, Joseph R. Neal, William H. Lumpkin, for appellee.

3. Appellant’s remaining enumerations of error are rendered moot by our decision in Divisions 1 and 2.

Judgment reversed.

Carley, J., concurs. Deen, P. J., concurs in Divisions 2 and 3 and in the judgment.


text:
    76367.
    BATES & ASSOCIATES, INC. v. DEPARTMENT OF TRANSPORTATION.
    (368 SE2d 544)
   Deen, Presiding Judge.

On January 13, 1987, appellee Department of Transportation (DOT) filed a condemnation petition, pursuant to OCGA § 32-3-1 et seq., to acquire for public use a tract of land of which appellant Bates and Associates (Bates) was one of the owners. See OCGA §§ 32-3-5 through 32-3-9. On March 30, 1987, which, according to the record, was more than thirty days after being served with the petition, Bates filed an appeal, pursuant to OCGA § 32-3-14, asserting that the appraised price was inadequate. DOT moved to dismiss the appeal and enter judgment on the ground that the appeal was untimely filed. After a hearing the trial court granted the motion, dismissed the appeal, entered judgment, and, pursuant to OCGA § 32-3-11 and 32-3-12, ordered that the monies deposited in the registry of the court be disbursed to the condemnees. Bates has appealed from this judgment, enumerating as error the alleged denial of a hearing, both before and after default, as to its property rights, and the trial court’s “refus[al] to allow appellant to file its claim for the full value of property condemned, after 30 days but before final judgment.” Held:

Decided April 4, 1988

Rehearing denied April 13, 1988

Ralph C. Smith, Jr., for appellant.

George R. Lilly II, Michael J. Bowers, Attorney General, for appellee.

Examination of the record reveals that DOT fully complied with the statutory provisions set forth in OCGA § 32-3-5 et seq. OCGA § 32-3-17, on which appellant chiefly relies in its assignments of error, is inapplicable to appellant’s situation in that that section makes provision for parties whose claims were unknown at the time the petition was filed and who were not named therein, Dept. of Transp. v. McLaughlin, 163 Ga. App. 1 (292 SE2d 435) (1982); or for taxpayers seeking to intervene in a condemnation proceeding. Dept. of Transp. v. City of Atlanta, 255 Ga. 124 (337 SE2d 327) (1985). Appellant, of course, was named as a condemnee in the petition. Moreover, the period within which an appeal may be filed in a condemnation proceeding is fixed by statute, OCGA § 32-3-14, and the trial court has no discretion to extend the time. Dept. of Transp. v. Rudeseal, 156 Ga. App. 712 (276 SE2d 52) (1980); McClure v. Dept. of Transp., 140 Ga. App. 564 (231 SE2d 532) (1976). This court has expressly held that the provisions of the Civil Practice Act (Title 9, Ch. 11) which deal with time frames do not apply to periods of time which are definitely fixed by other statutes. McClure v. Dept. of Transp., supra at 564. Despite appellant’s energetic exegetical efforts, we find no error in the proceedings below.

Judgment affirmed.

Car ley and Sognier, JJ., concur.


author: Carley, Judge.

text:
    75814.
    HALL v. THE STATE.
    (368 SE2d 787)
   Carley, Judge.

Appellant was indicted for rape and incest, both of which crimes he had allegedly committed against his fourteen-year-old daughter. The jury returned a verdict of guilty as to the charge of incest and a verdict of not guilty on the rape charge. Appellant appeals from judgment of conviction and sentence entered by the trial court on the jury’s verdict.

1. In several of his enumerations of error, appellant raises the general grounds.

The absence of any corroborative evidence is not a ground for reversing appellant’s conviction. “A conviction for incest may be based upon the uncorroborated testimony of the prosecuting witness, if the testimony is sufficient to convince a rational trier of fact of the defendant’s guilt beyond a reasonable doubt. [Cits.]” Baker v. State, 245 Ga. 657, 666 (5) (266 SE2d 477) (1980). See also Scales v. State, 171 Ga. App. 924 (2) (321 SE2d 764) (1984). After a review of the entire record, we find that a rational trior of fact could reasonably have found from the evidence adduced at trial, proof of appellant’s guilt of the crime of incest beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The trial court permitted the victim to testify as to two prior incidents in which appellant made sexual advances toward her. Appellant enumerates this evidentiary ruling as error, contending that the testimony improperly placed his character into evidence.

“ ‘ “(B)efore evidence of independent crimes is admissible two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter. [Cit.] Once the identity of the accused as the perpetrator of the offense separate and distinct from the one for which he is on trial has been proven, testimony concerning the independent crime may be admitted for the purpose of showing identity, motive, plan, scheme, bent of mind, and course of conduct. (Cits.)” [Cit.]’ [Cit.] There was no question here that [appellant] was the person involved in the [two] incidents testified to by the prosecutrix, and the rule is usually applied more liberally with ‘evidence of prior attempts by the accused to commit the same crime upon the victim of the offense for which he stands charged. . . .’ [Cits.] ‘Certain otherwise inexplicable assaults, such as occur in a series of incidents of wife or child abuse, particularly lend themselves to this exception to the “other offenses” rule oil questions of both identity and motive. [Cits.]’ [Cit.]” (Emphasis supplied.) Gresham v. State, 169 Ga. App. 525, 526 (1) (314 SE2d 111) (1984). Accordingly, the trial court did not err in admitting evidence of the prior incidents.

3. During the course of the trial, appellant placed his own character in issue by calling a witness to testify as to his general good character. Thereafter, over appellant’s objection, the State was allowed to cross-examine the good character witness as to appellant’s prior criminal conviction and also to introduce a certified copy of that prior conviction. These evidentiary rulings by the trial court are enumerated as error. “ ‘When the defendant, in the trial of a criminal case, puts his character in issue the State (a) may cross-examine the witnesses offered by him in order to test their knowledge of his character, and . . . (c) the State may, where the defendant has been previously convicted of a crime involving moral turpitude, introduce the record of such conviction in the manner provided by law’ [Cit.]” Ail-stock v. State, 159 Ga. App. 482, 485 (3) (283 SE2d 698) (1981). There was no error.

During the cross-examination of appellant’s character witness, the State also inquired concerning the witness’ knowledge of appellant’s prior arrest record. Appellant objected to the question and moved for a mistrial. The trial court sustained the objection but denied the motion for a mistrial. The trial court’s failure to grant a mistrial is enumerated as error. The trial court did err in its ruling with regard to this questioning of appellant’s good character witness. Its error was, however, in sustaining appellant’s objection to the questioning, not in failing to grant the motion for mistrial. The State is entitled “to ask witnesses who had testified as to appellant’s good reputation if they had heard he had been arrested or convicted of certain offenses.” (Emphasis supplied.) Montgomery v. State, 173 Ga. App. 570, 572 (3) (327 SE2d 770) (1985).

4. The trial court’s failure to instruct the jury, without request, that appellant’s prior conviction could be used only for limited evidentiary purposes is enumerated as error.

“It is well recognized that when evidence is admitted for one purpose, as it was in the instant case, it is not error for the [trial] court to fail to instruct the jury to limit its consideration to the one purpose for which it is admissible, in the absence of a request to so instruct the jury. [Cits.]” (Emphasis in original.) Harrell v. State, 241 Ga. 181, 186 (2) (243 SE2d 890) (1978). See also Pyburn v. State, 175 Ga. App. 158, 159 (2) (332 SE2d 899) (1985); Hendrickson v. State, 159 Ga. App. 628, 629 (2) (284 SE2d 645) (1981). Accordingly, the trial court did not err in failing to give unrequested instructions concerning the purpose for which the evidence was admitted.

Decided April 13, 1988.

Charles A. Bennett, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Paul L. Howard, Jr., Nancy A. Grace, Assistant District Attorneys, for appellee.

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.


text:
    75874.
    BENNETT v. THE STATE.
    (368 SE2d 789)
   Carley, Judge.

Appellant was tried before a jury and found guilty of two counts of armed robbery. Appellant appeals from the judgments of conviction and sentences entered on the jury’s verdicts.

1. Appellant enumerates the general grounds. After reviewing the evidence in the light most favorable to the verdict, we find that the State produced sufficient evidence at trial from which, a rational trior of fact, the jury in this case, could have found proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The trial court’s denial of appellant’s two motions for continuance are enumerated as error.

Appellant’s attorney was notified of his appointment to the case on the day of appellant’s arraignment, April 13, 1987. Three days later, appellant’s attorney moved for a continuance of appellant’s trial until July of 1987 on the ground that he had not had sufficient time to prepare the case for the defense. The trial court denied this motion and the case then proceeded to trial some six days later. After announcing ready at trial, appellant’s attorney then made another motion for a continuance, asserting the need to interview several of the State’s witnesses. The trial court denied appellant’s motion for a continuance, but did allow appellant’s attorney the opportunity to interview the witnesses before resuming the trial.

Thus, the record shows that appellant’s counsel was appointed to the case at least nine days prior to trial. “A motion for continuance is addressed to the sound discretion of the trial court. Absent a showing that it has been abused, that discretion will not be controlled. [Cit.] ‘There is no fixed rule as to the number of days that should, of right, be allowed counsel in a criminal case to prepare the case for trial, but the trial judge, in the exercise of his discretion to grant or refuse a continuance, has to consider the facts and circumstances of each case to determine what the ends of justice require. A statement by counsel for the defendant that he had not had sufficient time to investigate and prepare the defense is a mere conclusion. Questions of this nature must of necessity be entrusted to the discretion of the trial judge. [Cits.]’ [Cit.]” Hill v. State, 161 Ga. App. 346 (1) (287 SE2d 779)

(1982) . “Broad discretion must be granted trial courts on matters of continuances and only unreasoning and arbitrary insistence upon expeditiousness in the face of justifiable request for delay would violate the right to assistance of counsel. [Cit.]” (Emphasis in original.) Beard v. State, 178 Ga. App. 265, 266 (1) (342 SE2d 751) (1986). We find no abuse of discretion in the denial of a motion for continuance made by appellant’s counsel some three days after appointment and six days prior to trial.

Appellant had answered ready at the call of the case and a jury had already been selected when the second motion for a continuance was made. “[T]he announcement of ready constitutes a waiver of defendant’s right to a continuance. [Cit.]” Whatley v. State, 162 Ga. App. 106 (1) (290 SE2d 316) (1982). Moreover, the trial court did afford appellant an opportunity to interview the State’s witnesses, the opportunity for which had prompted the motion for continuance. We find no abuse of the trial court’s discretion.

3. Over objection, the trial court admitted evidence of an armed robbery previously committed by appellant. The evidence was admitted as relevant to appellant’s motive, plan, scheme, bent of mind, and course of conduct as to the present armed robbery.

“[E]vidence of other criminal acts of the defendant may be admitted if it ‘ “is substantially relevant for some purpose other than to show a probability that (the defendant) committed the crime on trial because he is a man of criminal character. . . .” ’ [Cits.] The purposes for which evidence of extrinsic offenses may be offered include motive; intent; absence of mistake or accident (each is [an] aspect of intent), plan or scheme (of which the crime on trial is a part); and identity. [Cits.] To render evidence of extrinsic offenses admissible for any of these purposes, the [S]tate must show that the defendant was the perpetrator of the extrinsic offenses, and that there is a sufficient similarity or connection between the extrinsic offense and the offense charged, such that proof of the former tends to prove the latter. [Cits.]” Williams v. State, 251 Ga. 749, 755 (4) (312 SE2d 40) (1983). See also French v. State, 237 Ga. 620 (3) (229 SE2d 410) (1976). “It has long been the rule in Georgia that evidence of an independent crime is never admissible unless the prejudice it creates is outweighed by its relevancy to the issues on trial. [Cits.]” Robinson v. State, 246 Ga. 469, 470 (2) (271 SE2d 786) (1980).

It is undisputed that appellant committed the independent crime. He contends, however, that the prior armed robbery was not sufficiently similar to the presently charged armed robberies so as to be admissible in his trial for commission of those latter crimes. The record shows that, “ ‘[although the . . . occurrences were not identical, there was sufficient similarities to authorize the trial court to admit the testimony’ ” concerning the prior armed robbery as illustrative of appellant’s motive, plan, scheme, bent of mind, and course of conduct in the presently charged crime. Brown v. State, 250 Ga. 66, 73 (5) (295 SE2d 727) (1982). The trial court did not err in admitting evidence of the prior armed robbery.

Decided April 13, 1988.

T. Christopher Pyles, for appellant.

William G. Hamrick, Jr., District Attorney, Peter J. Skandalakis, Assistant District Attorney, for appellee.

4. The trial court admitted evidence concerning two pre-trial lineups in which appellant was identified by three witnesses. Appellant enumerates the admission of this evidence as error on the grounds that the lineups were impermissibly suggestive.

The record shows that, as to both lineups, the other participants were all of approximately the same height, size, race, and age of appellant. “[T]he fact that [appellant] was one of only two men over six feet tall [in one lineup and one of three men over six feet tall in the other lineup] did not make the [lineups] impermissibly suggestive.” Payne v. State, 233 Ga. 294, 300 (210 SE2d 775) (1974).

Judgments affirmed.

Sognier, J., concurs. Deen, P. J., concurs in Divisions 1, 2, 4, and in judgment.


text:
    75901.
    TAYLOR et al. v. AMISUB (McINTOSH TRAIL REGIONAL MEDICAL CENTER), INC.
    (368 SE2d 791)
   Carley, Judge.

Appellee-defendant entered into a written contract to purchase Griffin-Spalding County Hospital (Hospital). The sales contract provided, in pertinent part, that “[o]n and as of the closing date, all employees, with the exception of middle or executive management personnel . . . , who were employed at the Hospital will be made employees of [appellee]. There will be no loss in status (i.e., job description, job classification, etc.) or seniority of Hospital employees when they become [appellee’s] employees.” In contemplation of the sale, appellee’s agents also sent all Hospital employees letters, wherein appellee promised that, upon the closing of the sale, it would automatically hire all non-management hospital employees for the same job that he or she had held previously with the Hospital and that those so hired would not lose any seniority that they had accrued while working at the Hospital.

At the time of the sale, appellant-plaintiffs were non-management employees at the Hospital who were being , paid on an hourly basis. As promised, when the sale of the Hospital was consummated, appellee hired appellants for the same jobs that they had held at the Hospital and appellee credited appellants with the seniority that they had accrued while working at the Hospital. However, approximately two months after the closing, appellee reorganized the Hospital’s nursing services department in response to a decrease in the patient population. As a result of this reorganization, appellants’ duties were modified and the number of their work hours per week was reduced.

Appellants then brought this suit against appellee. Appellants alleged that they were third-party beneficiaries of the sales contract, and that appellee had breached that sales contract by altering their job status. Appellants also alleged that, prior to the closing of the sale, appellee had negligently or fraudulently misrepresented its intentions with regard to the future employment of appellants. Appellee answered, denying the material allegations of the complaint. Appellee subsequently moved for summary judgment. The trial court entered an order granting appellee’s motion for summary judgment and appellants appeal from that order.

1. The trial court’s grant of summary judgment in favor of appellee on appellants’ breach of contract claim is enumerated as error. However, even assuming without deciding that appellants could be considered third-party beneficiaries of the sales contract, the record shows that appellee fulfilled all of the obligations it possibly owed to appellants under that contract. The sales contract obligated appellee only to hire appellants at the same job status and with the same seniority that they had prior to the sale. It is undisputed that appellee fulfilled this obligation. Nowhere in the sales contract did appellee agree that it would never alter the number of work hours available to appellants or the duties of appellants’ jobs.

Moreover, the record further clearly demonstrates that appellants had been hired by the Hospital for an indefinite term. See OCGA § 34-7-1. “The term of [appellants’] employment was indefinite and therefore comes under the statutory rule that ‘[a]n indefinite hiring may be terminated at will by either party.’ [Cits.]” Ely v. Stratoflex, 132 Ga. App. 569, 570 (1) (208 SE2d 583) (1974). See also Ga. Power Co. v. Busbin, 242 Ga. 612, 613 (1) (250 SE2d 442) (1978); Land v. Delta Air Lines, 130 Ga. App. 231 (203 SE2d 316) (1973). Appellee’s act of hiring appellants pursuant to the terms of the sales contract did not change appellants’ employment status. In fact, the sales contract clearly states that the job status of most employees, including appellants, would be identical to that while under the employ of the Hospital. As appellants’ pre-sale employment could have been terminated at the will of the Hospital, with or without cause, it follows that appellee was authorized to alter appellants’ job duties and work schedule after its purchase of the facility. The trial court did not err in granting summary judgment in favor of appellee on the contract claim.

Decided April 13, 1988.

M. Michael Kendall, for appellants.

Anne S. Rampacek, James R. Fortune, Jr., for appellee.

2. Appellants also enumerate as error the trial court’s grant of summary judgment in favor of appellee on their tort claims. The alleged misrepresentations underlying appellants’ tort claims are certain promises concerning their future employment with appellee, which promises, unlike those made in the sales contract, were made directly to appellants by appellee’s agents in the form of letters which were sent to appellants prior to the closing of the sale. “ ‘Although fraud may not generally be predicated on statements which are promissory in nature as to future acts or events, it can be predicated on such representations where there is a present intention not to perform or a present knowledge that the future event will not occur. [Cits.]’ [Cit.]” Seligman v. Savannah Wholesale Co., 185 Ga. App. 250, 252 (1) (363 SE2d 785) (1987). “ ‘However, such exception has no application to this case because the promises upon which the (appellants rely) for establishing fraud were unenforceable even absent any fraud at the time of their utterance. The . . . promises could not be enforced because the underlying employment contract, being terminable at will, is unenforceable.’ [Cits.]” Alston v. Brown Transport Corp., 182 Ga. App. 632, 633 (1) (356 SE2d 517) (1987). Accordingly, the trial court correctly granted appellee’s motion for summary judgment as to appellants’ tort claims.

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.