author: ELDRIDGE, Judge.

text:
    A02A0047.
    BRUCE v. THE STATE.
    (555 SE2d 819)
   ELDRIDGE, Judge.

A Richmond County jury found Jacklyn E. Bruce guilty of aggravated assault, hijacking a motor vehicle, and possession of a knife during the commission of a crime. He appeals, challenging the sufficiency of the evidence, the effectiveness of his trial attorney, and the trial court’s charge to the jury. After careful review of the errors as enumerated, we affirm.

Viewed in a light to uphold the jury’s verdict, the evidence shows that at approximately 2:00 a.m. the victim, a Radio Cab driver, was waiting for a fare at a cabstand located outside the Honky Tonk lounge in the 1600 block of Gordon Highway in Augusta. Bruce, who was “very intoxicated,” approached. Bruce asked the victim to “take him for a ride” without giving an address. Pursuant to company policy, the victim asked to be paid $25 in advance because of Bruce’s intoxication and ambiguous destination. Bruce paid the money, and the victim followed Bruce’s directions “eastbound toward the city [Augusta]” to the Hyde Park/Aragon Park area of Dan Bowles Road, an area known for high drug crime. When the victim informed Bruce that he did not travel in that area past a certain hour of the evening, Bruce produced ^ “long stainless steel black-handled knife” and told the victim, “Motherfucker, you got my money. Take me where I want to go.” So, the victim took him.

Thereafter, Bruce met with a man on Dan Bowles Road and purchased what appeared to be crack cocaine. After leaving the area and heading toward Old Savannah Road, Gordon Highway, Bruce discovered that he had been sold wax. He told the victim, “These motherfuckers have sold me wax. Take me back.” Bruce was now in the front seat of the car with the knife in his left hand toward the victim. The victim complied with the order, and Bruce purchased an additional substance. They then headed back down Dan Bowles Road. The victim testified that

[a]t this time we come back out to Gordon Highway side. There’s an Amoco station, I believe, just at Gordon Highway. He [Bruce] tells me he’s dehydrated, he needs a Pepsi-Cola; asked me to park directly in front of the door. I did not see a weapon or anything other than his knife, but he indicated he had what it takes to take care of anything that happened if I caused him any problem. . . . That meant to me he had a weapon to hurt me and the clerk, other than the knife. . . . He didn’t say he had a gun. He never said he had a gun, but he indicated by tapping his belt, “I got what it takes to take care of you if you cause me any problem.”

The victim entered the Amoco and bought Bruce a bottle of Pepsi-Cola. The Amoco clerk testified at trial that, as he was leaving, the victim “whispered to me to call the police because a man had a knife on him in his cab.” The Amoco clerk testified that the victim appeared “scared.” She complied with his request, called the police, and gave them the information.

After the victim returned to the cab, Bruce directed him toward Highway 25. While heading “south on Highway 25,” the taxi cab dispatcher came on the radio, stating to the victim, “I have the police on the line. What’s your problem.” The victim testified that when Bruce heard this information, he “panicked and really began to — at this time I really got scared. I was afraid I was going to be hurt. . . . And that’s when I really began to fear that he is going to do something with this knife other than just force me to go where he wanted to go.” Bruce, still sitting beside the victim in the front seat of the cab holding the knife toward the victim, “was constantly looking around for police cars. He [Bruce] said T better not see a police car, better not see a police car.’ ” Immediately thereafter, the victim spotted a police car. He testified that “I turned rapidly into a RaceTrac station, I believe; I’m not sure. It’s a station, it’s a convenience store at Cadden and Highway 25.1 jumped and run one way, and when I looked back he was going the other way, and that made me happy. The police showed up about the time all this was going on.”

The victim gave an officer a description of Bruce, as well as the direction in which Bruce had fled up Cadden Road. The officer testified that he “proceeded up the street in the patrol car with the spotlight turned to the left, the last known direction of the suspect. And about the third or fourth house up the street to my left, I observed a suspect in the backyard trying to hide behind a large bunch of grass about six or eight inches high.” After calling for backup, the officer exited his vehicle and approached the grassy area in which he had last seen the suspect. A Pepsi-Cola bottle and a large black-handled knife were found in that area of the grass. Bruce was located approximately 12 feet away lying flat on the grass attempting to hide under a plastic trash bag of aluminum cans. Thereafter, several chunks of wax were found in the backseat of the victim’s cab. At trial, when asked about venue, the officer testified that “all this [was] taking place” in Richmond County.

Shortly after his arrest, Bruce volunteered a statement that the victim and he had been drinking Canadian Mist whiskey and smoking marijuana together; that an argument ensued; and that the victim wrested Bruce’s knife away from him and chased Bruce with it. The investigating officer also took a statement from the victim and, in deference to Bruce’s version of events, administered a breath test to the victim which showed his blood alcohol content as 0.00. At trial, the officer testified that this occurred in Richmond County. Held:

1. Bruce claims that the evidence was insufficient to support his conviction and insufficient as to venue in Richmond County.

[A]ny challenge to the sufficiency of the evidence supporting a jury’s verdict of guilty must be viewed to uphold the verdict. Since a jury found [Bruce] guilty, this Court looks only to see if there is a factual basis from which a rational trier of fact could conclude beyond a reasonable doubt that a guilty verdict was warranted. We do not judge the credibility of the witnesses. We do not revisit conflicts in the evidence. And we will not simply substitute our opinion for that of the jury. So long as there is some competent evidence to support each element of the ofiense(s) as charged, the jury’s verdict will be upheld.

(a) Here, the victim’s testimony alone established the essential elements of aggravated assault, hijacking a motor vehicle, and possession of a knife during the commission of a crime. The victim’s testimony was corroborated by physical evidence discovered at the time of Bruce’s arrest, as well as by testimony from the Amoco clerk that the victim was scared and told her that there was a man with a knife in his cab; she called the police at his insistence.

Bruce contends the evidence was insufficient to convict on aggravated assault because the victim testified Bruce put a knife to his neck, as opposed to his throat as alleged in the indictment. The record shows there is a conflict in the evidence as to this point in that the officer to whom the victim gave his statement testified that on the incident date the victim stated that Bruce put a knife to his “throat.” The victim, on the other hand, testified that he did not remember making that statement — as well as other statements — and that Bruce did not hold a knife to his throat, but to his “neck.” However, the victim also testified that his memory would have been better on the incident date. The resolution of any conflict in the evidence was for the jury. Since there is a factual basis for finding Bruce held a knife to the victim’s throat as per the indictment, we will not go behind the jury’s resolution of such conflict.

Bruce contends the evidence was insufficient to support his conviction for hijacking a motor vehicle because the victim was never separated from his vehicle. However, the offense of hijacking a motor vehicle is complete when a “person while in possession of a firearm or weapon obtains a motor vehicle” from the victim. The concept of “obtaining” a motor vehicle from its owner encompasses the notion of acquiring control thereof, regardless of whether the victim remains with the vehicle.

Bruce claims the evidence was insufficient to support his conviction for possession of a knife during the commission of a crime because the jury was not given a measuring device in order to determine that the blade of such knife measured three inches or more pursuant to statutory requirements. However, the knife at issue was introduced into evidence for the jury’s consideration, and, as a matter of fact, the knife “had a six-inch blade.” Further, defense counsel stated at trial that the “Buck 119 series” knife had a blade of “about six inches.” The indictment charged that Bruce did have “on his person a knife having a blade of three or more inches in length,” and the trial court instructed the jury that the State must prove the offense as charged in the indictment. With the knife in evidence and the jury able to determine that the blade was well over three inches long, a measurement of common knowledge, such is sufficient to support the jury’s verdict.

(b) Likewise, we find the evidence of venue sufficient. “Circumstantial as well as direct evidence may establish venue.” With regard to this case, a police officer testified that “all this” was taking place in Richmond County. No other county was at issue, and there was no evidence that venue was proper elsewhere. Further, the testimony from the cab driver/victim was extremely detailed as to the exact locations involved in the incident, from the Honky Tonk lounge on Gordon Road; from Gordon Road to Dan Bowles Road and the Hyde Park/Aragon Park area; from the Hyde Park/Aragon Park area back to Gordon Highway and the Amoco station at Gordon Highway; from the Amoco station to Highway 25 and the precise corner on Highway 25 and Cadden Road where the victim escaped; and from the backyard on Cadden Road where Bruce was captured, four houses away from the Amoco. These specific facts, coupled with the officer’s testimony that all this occurred in Richmond County, made it possible for the jury — residents of Richmond County, all — to determine the venue. As with all other essential elements of an offense, we will not weigh the evidence of venue, as such is a function of the jury. There was a factual basis upon which the jury could find beyond a reasonable doubt that the incidents in question occurred in Richmond County. That is sufficient.

2. Bruce next claims he was afforded ineffective assistance of counsel at trial.

The two-prong test for determining the validity of a claim of ineffective assistance of counsel provided in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984),] asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable [probability] that the outcome of the proceedings would have been different, but for counsel’s deficiency. A trial court’s finding that an accused received effective assistance will be affirmed on appeal unless that determination is clearly erroneous. And a trial court is authorized to find the decision not to call certain individuals as witnesses a reasonable defense strategy.

(a) Bruce first contends that his defense counsel was ineffective for failing to call specific witnesses to testify at trial regarding Bruce’s physical condition, the amount of money he had on his person on the date in question, and to impeach the testimony of the Amoco clerk as to whether she told the victim he should stay in the convenience store and she would lock the doors.

At the motion for new trial, Bruce’s trial counsel testified that he interviewed the witnesses at issue and determined that the information which could be obtained therefrom was either irrelevant, unhelpful, not impeaching, or could be presented to the jury through Bruce’s testimony and physical demonstrations so as to retain the right to closing argument: “And I considered the right to have final argument very important in this case and I don’t think that these witnesses really added anything.”

We have reviewed the testimony of the witnesses, both at trial and at the hearing on the motion for new trial. We cannot find fault with defense counsel’s assessment.

(i) Three of the witnesses about whom Bruce complains did not testify at trial or at the new trial hearing, and thus the content of their testimony is mere speculation.

(ii) Further, although Bruce claims that he wanted his doctor to testify about the disability he suffered due to an earlier automobile accident, the doctor in question had not seen Bruce for three years prior to the incident date and could not testify as to his current physical condition. Indeed, Bruce testified as to such and displayed to the jury the extent of his injuries.

(iii) In addition, another witness about whom Bruce complains, the owner of the store wherein Bruce bought the Buck knife, did not testify to the facts as Bruce claimed he would.

(iv) And finally, the investigator hired by his defense counsel could not impeach the Amoco clerk with an inconsistent statement, since the clerk testified that she did not remember whether or not she told the victim to remain in the Amoco with the doors locked: “I might have, but like I say, I don’t remember telling him that. I could have.” Thus, the investigator’s testimony, if impeaching at all, would be so only collaterally, making the loss of closing argument a significant factor in the decision whether to call such witness. Moreover, evidence that the Amoco clerk told the victim to stay inside behind locked doors came out through the testimony of an investigating officer. “The decision as to which defense witnesses will be called is a matter of trial strategy and tactics, and tactical errors do not constitute ineffective assistance of counsel.”

Decided October 24, 2001

Reconsideration denied November 16,2001.

Sam B. Sibley, Jr., for appellant.

Jacklyn E. Bruce, pro se.

(b) Bruce also contends that his trial attorney was ineffective for failing to object to the prosecutor’s line of questioning about Bruce’s receipt of disability checks while working as a part-time mechanic. However, this issue was not raised on amended motion for new trial, and Bruce’s trial attorney was not questioned with regard thereto. “Any ineffective counsel challenge will be deemed waived if the new attorney files an amended motion for new trial and does not raise the issue before the trial court so that the challenge can be heard at the earliest practicable moment, i.e., during the hearing on the amended motion. [Cit.]”

3. In his remaining four enumerations of error, Bruce challenges specific portions of the trial court’s charge to the jury as containing reversible error. However, at the conclusion of the jury charge, the trial court stated, “We’ll be in recess now till we hear from the jury, unless you have some exceptions to the charge.” To which defense counsel stated, “None at this time, Your Honor.” Where objections are requested, the failure to either object or to reserve the right to later object amounts to a procedural default barring appellate review of the charge. “Here, the trial court specifically asked for exceptions to the charge. Defense counsel neither objected nor reserved exceptions for post-conviction review. [Bruce’s] claims of error regarding the jury charge are thus waived.”

Judgment affirmed.

Smith, P. J., and Ellington, J., concur.

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

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

       (Footnotes omitted.) Bacon v. State, 249 Ga. App. 347, 348-349 (1) (548 SE2d 78) (2001).

       OCGA § 24-4-8 (“testimony of a single witness is generally sufficient to establish a fact”).

        Powell v. State, 249 Ga. App. 344, 346 (548 SE2d 447) (2001).

       (Emphasis supplied.) OCGA § 16-5-44.1 (b).

       See Perkinson v. State, 273 Ga. 491-492 (542 SE2d 92) (2001). See also Black’s Law Dictionary (5th ed. 1979), p. 972: “Obtain. To get hold of by effort... to acquire, in any way.”

        Johnson v. State, 247 Ga. App. 157, 161 (6) (543 SE2d 439) (2000).

        Jordan v. State, 242 Ga. App. 547, 549 (2) (528 SE2d 858) (2000).

        Cook v. State, 273 Ga. 828, 830 (2) (546 SE2d 487) (2001) (“[a]ll issues concerning the weight and credit to be given the evidence concerning these statements [of venue] were for the jury”).

       (Footnotes omitted.) Webb v. State, 249 Ga. App. 214, 216-217 (2) (547 SE2d 767) (2001).

       (Punctuation omitted.) McCant v. State, 234 Ga. App. 433, 436 (3) (506 SE2d 917) (1998).

       (Punctuation omitted.) Thompkins v. State, 272 Ga. 835, 836-837 (2) (c) (536 SE2d 747) (2000).

       Thereafter, Bruce’s trial attorney specifically excepted to a recharge on the definition of kidnapping, an offense for which the jury acquitted Bruce. Notably, Bruce does not allege the failure to reserve objection to the jury charge as a basis for his claim of ineffective assistjiic6 of counsel

        Rivers v. State, 250 Ga. 303, 309 (7) (298 SE2d 1) (1982).

        Leggon v. State, 249 Ga. App. 467, 471 (2) (549 SE2d 137) (2001).


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A00A0143.
    ACCOLADES APARTMENTS, L.P. v. FULTON COUNTY et al.
    (556 SE2d 552)
   Mikell, Judge.

In Accolades Apts. v. Fulton County, 242 Ga. App. 214 (528 SE2d 268) (2000), we affirmed an order of the Superior Court of Fulton County disbursing condemnation proceeds to the creditors of Consolidated Equities Corporation, a predecessor in title to appellant Accolades Apartments, L.P. On certiorari, the Supreme Court reversed. Accolades Apts. v. Fulton County, 274 Ga. 28 (549 SE2d 348) (2001). The Court held that we had neglected to address the relevant issue: whether the owner of the real property at the time the liens arose was a partnership or a joint venture. At the relevant time, the property was owned by “Accolades Apartments Joint Venture, a joint venture composed of John Hancock Insurance Company and Consolidated Equities Corporation.” The Supreme Court noted that if Accolades Apartments Joint Venture is a partnership, then the real property acquired in its name is considered partnership property and thus not subject to execution by Consolidated’s judgment creditors. Id.

The Court ruled that the nomenclature utilized in establishing an entity is not the controlling factor. “In fact, a ‘joint venture’ can be a separate legal entity, if the attributes of the ‘joint venture’ are such that the venture is in actuality a partnership.” Accolades Apts., supra at 29. “Whether a ‘joint venture’ is actually a partnership is a question of fact and depends on the rights and responsibilities assumed by the joint venturers. This is so even if the documents controlling the arrangement expressly state that no partnership is formed.” (Citations omitted.) Id. at 30. “Factors that indicate the existence of a partnership include a common enterprise, the sharing of risk, the sharing of expenses, the sharing of profits and losses, a joint right of control over the business, and a joint ownership of capital. But the intention of the parties is the true test of whether there is a partnership. . . .” (Footnotes omitted.) Aaron Rents, Inc. v. Fourteenth Street Venture, 243 Ga. App. 746, 747-748 (1) (533 SE2d 759) (2000), aff’d, 274 Ga. 28 (549 SE2d 348) (2001).

Decided November 16, 2001.

Paul, Hastings, Janofsky & Walker, John G. Parker, Joseph C. Sharp, for appellant.

Thurbert E. Baker, Attorney General, Warren R. Calvert, Senior Assistant Attorney General, Smith, Gambrell & Russell, Marcia M. Ernst, William R. Turner, for appellees.

Appellant contends that the intention of John Hancock Insurance Company and Consolidated Equities Corporation in forming “Accolades Apartments Joint Venture” can be found in a supplement to the record below entitled “STATEMENT OF PARTNERSHIP OF ACCOLADES APARTMENTS JOINT VENTURE.” This document states in pertinent part:

WHEREAS, the undersigned, as participants in said Joint Venture, desire, by this Statement of Partnership, to evidence of public record the Joint Venture Agreement and to further evidence their desire to be treated as an entity under the Uniform Partnership Act as enacted in the State of Georgia for the purposes of owning the Project.

While this document provides some evidence that “Accolades Apartments Joint Venture” was in actuality a partnership, it does not appear that the trial court considered the document in rendering its ruling. As the issue of whether a partnership or a joint venture existed is best left to the factfinder, we vacate the judgment below and remand the case to the trial court for proceedings on this issue consistent with this opinion. Medders v. Smith, 245 Ga. App. 323, 327 (4) (537 SE2d 153) (2000).

Judgment vacated and case remanded with direction.

Johnson, P. J., and Phipps, J., concur.

       The decision affects Divisions 1 and 2 of our opinion, and only those Divisions are vacated.


author: Smith, Presiding Judge.

text:
    A01A1049, A01A1050.
    BRYAN v. BROWN CHILDS REALTY COMPANY, INC.; and vice versa.
    (556 SE2d 554)
   Smith, Presiding Judge.

We consider for the second time this dispute involving an agreement between plaintiff Brown Childs Realty and defendant Robert C. Bryan in connection with Bryan’s purchase of a tract of real estate. This agreement, styled “Realtor’s Commission Agreement,” provided for various forms of compensation to Brown Childs in addition to the realtor’s commission paid by the sellers of the property, including a deferred payment on a per-acre basis, an exclusive listing agreement for resale of the property with a six percent commission, and an equal sharing of the proceeds of any future sale between Bryan and Brown Childs. After Bryan obtained an option contract on a portion of the property without the assistance of Brown Childs, Brown Childs sought assurances that its earlier agreement with Bryan would be honored. Bryan repudiated the agreement, and this action followed.

In Bryan v. Brown Childs Realty Co., 236 Ga. App. 739 (513 SE2d 271) (1999), we affirmed the trial court’s grant of partial summary judgment in favor of Brown Childs on the issue of standing to bring the action. We concluded that Brown Childs’s claim was not barred by OCGA § 43-40-24 (b) even though its real estate license was not in force for a period of time, because the license was in force at the time its claim against Bryan arose. Id. at 740 (1). After filing of the notice of appeal, the trial court had amended its order to grant summary judgment in favor of Bryan on the issue of whether the agreement created an equitable interest in the underlying realty. This amended order was held void and the appeal dismissed for lack of jurisdiction. Id. at 742 (2).

After remand, the case proceeded to trial and a jury verdict in favor of Brown Childs. Bryan’s motion for new trial was denied, and he appeals, asserting three enumerations of error. Finding no error in Case No. A01A1049, we affirm. On cross-appeal in Case No. A01A1050, Brown Childs has asserted as error the trial court’s grant of a directed verdict on its claim for an equitable interest. Because some evidence was presented at trial from which the jury could have concluded that an equitable interest was created, we reverse in Case No. A01A1050.

Case No. A01A1049

1. Bryan’s first enumeration of error contains two assertions, both relating to evidence concerning the surrender and revocation of Brown Childs’s real estate licenses after remand of the earlier appeal. Bryan contends that the trial court erred in denying his motion for directed verdict on the basis of OCGA § 43-40-24 (b) and in granting Brown Childs’s motion in limine, despite this court’s ruling in the previous appearance of this case. We disagree.

(a) This court’s previous ruling is the law of the case. OCGA § 9-11-60 (h) provides: “[t]he law of the case rule is abolished; ... provided, however, that any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.”

The “law of the case” rule, though formally abolished, still applies to rulings by one of our appellate courts in a particular case; such rulings are binding in all subsequent proceedings in the same matter, including a second trial. An exception to this rule exists where the evidentiary posture of the case changes after remand by the appellate court. The evidentiary posture may change when a new issue not previously addressed by an appellate court is properly raised, or when the original evidence is insufficient but is later supplemented.

(Citations omitted.) Lowman v. Advanced Drainage Systems, 228 Ga. App. 182, 183-184 (491 SE2d 427) (1997). As our previous ruling made plain, the significant time for purposes of OCGA § 43-40-24 is “that point in time when the alleged cause of action arose.” Bryan, supra at 741 (1). As Brown Childs’s real estate license was in force at the time Bryan repudiated the agreement, any earlier or subsequent changes in its license status have no effect on Brown Childs’s standing to bring this cause of action.

Bryan also argues that the sale of a portion of the subject real property changes the evidentiary posture of the case. He first contends that the sale of that portion of the property and settlement of the commission owing to Brown Childs destroy its standing, because he must have standing to assert any additional claims on future sales of the property. But the parties executed a partial release and settlement agreement concerning the sale of that portion of the realty while the earlier appeal of this case was pending. That agreement states that it was entered into in order to permit the partial sale and contains the explicit provision that “[a] 11 claims and defenses relating to the remainder of the . . . tract shall remain between the parties, shall remain pending in the above-captioned lawsuit, and shall not be affected by this partial settlement and release” and that

[t]he parties’ claims, defenses, issues on appeal, and any and all other matters relating to the above-captioned action including plaintiff’s claims against defendant Robert C. Bryan, personally, for money damages and other relief, shall continue with regard to the remaining property and shall not be affected by this partial settlement and release.

The holding that Brown Childs has standing to assert its claims based on the date of breach of the underlying agreement is the law of the case and is not affected by the settlement of a portion of this action with the explicit agreement that all claims and defenses shall remain pending and unaffected by the settlement.

Bryan also contends that he should have been able to introduce the surrender or revocation of Brown Childs’s licenses in order to attack Brown Childs’s entitlement to commissions on any future sales. But a judgment will not be reversed on the basis of exclusion of testimony which is merely cumulative of other evidence already admitted. Ga. Ports Auth. v. Harris, 243 Ga. App. 508, 514 (5) (533 SE2d 404) (2000), aff’d, 274 Ga. 146 (549 SE2d 95) (2001). With respect to the future earning of commissions, the jury already had testimony before it that Mr. Childs was incapacitated and that Brown Childs was no longer doing business. Even without evidence that the real estate licenses of the company had been surrendered and revoked, Bryan was able to contend from that evidence that Brown Childs would be unable to earn commissions from any future sales. In fact, Bryan made precisely that contention in closing argument. He noted Mr. Childs’s incapacitation, argued that there were “no sales produced and none ever going to be produced by him in the future,” and contended that Brown Childs was engaging in “some sort of extortion” because Mr. Childs said he was “going to retire out of this case.” With respect to damages, Bryan’s arguments were limited to challenging the market analysis of Brown Childs’s expert, arguing that the parties intended for the agreement to extend only for six months to a year and contending that any claim of damages was too speculative because the remainder of the land had not sold at the time of trial. But nothing prevented Bryan from applying his argument regarding Mr. Childs’s incapacitation and inability to produce future commissions to the issue of damages.

Moreover, it is apparent from the verdict that the jury award did not include damages for commissions on any future sales. As pointed out by Brown Childs in connection with another issue on appeal, the amount of the jury’s verdict is based entirely upon Brown Childs’s original deferred commission on Bryan’s purchase of the property, $156,000. Bryan’s accountant calculated Bryan’s “opportunity cost,” or what Bryan could have earned on the money used to purchase the property, at eight percent. The jury awarded exactly the sum of $156,000, compounded at eight percent annually from 1992 to 1999 and rounded to the nearest dollar. Since the jury did not award any future commissions to Brown Childs, any error in excluding evidence that might have mitigated against an award of such future commissions was harmless. Oak Creek Dev. Corp. v. Hartline-Thomas, Inc., 138 Ga. App. 83, 87 (2) (225 SE2d 515) (1976); see also Vada Corp. v. Harrell, 156 Ga. App. 137, 141 (273 SE2d 877) (1980).

(b) The trial court did not err in granting a motion in limine on the issue of Brown Childs’s real estate licenses. “The admission or exclusion of evidence is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. However, the grant of a motion in limine excluding evidence is a judicial power which must be exercised with great care.” (Citations and punctuation omitted.) Homebuilders Assn. of Ga. v. Morris, 238 Ga. App. 194, 195 (518 SE2d 194) (1999). Here, the trial court correctly concluded on the basis of this court’s previous ruling that evidence of Brown Childs’s licensing status was irrelevant to its standing to bring this action. The trial court later exercised its discretion to modify its motion in limine, allowing Bryan to testify as to his belief regarding the revocation and its effect on his decision to repudiate the subject agreement. The trial court clearly exercised its discretion in concluding that some of the proposed testimony was necessary to show Bryan’s beliefs and “part of his reason for terminating or canceling the contract” but rejecting other portions of the proffered evidence, because “the inflammatory aspects of it perhaps are too great for me to let it go to the jury.”

The trial court also gave an instruction to the jury explaining the limited purpose of this testimony and cautioning jurors that “[t]he issue of Mr. Childs’ license is not before you. Mr. Childs is properly before the Court. And you will base your decision upon the Court’s instruction and the evidence that’s been produced to you. His license status is not before you.” As noted above, the issue of Brown Childs’s inability to produce future commissions was before the jury and addressed by Bryan in closing argument.

The trial court’s thoughtful consideration of this court’s prior ruling, the circumstances of the trial, and the relative value of the proposed testimony before making its decision is the essence of discretion, and we find no abuse here.

2. Bryan next complains that the trial court erred in allowing the testimony of Brown Childs’s expert on the issue of damages. But Bryan did not make a contemporaneous objection to the witness’s qualifications as an expert or to his testimony. After redirect and recross-examination of the expert the trial court asked, “Anything else?” and Bryan’s counsel responded, “No, sir.” While Bryan eventually moved to strike the expert’s testimony, he did not do so until after two unrelated intervening matters were discussed, after another witness testified on both direct and cross-examination, and after the plaintiff rested its case. When a party “failed to make contemporaneous objections but chose to make a motion to strike the testimony [, flailure to object contemporaneously waived the objection and the right to request untimely curative instructions. [Cit.]” Dept. of Transp. v. Wallace Enterprises, 234 Ga. App. 1, 4 (5) (505 SE2d 549) (1998). Motions to strike provide an exception to the “contemporaneous objection rule” only when testimony appears admissible at the time of its presentation but later evidence renders it inadmissible. Sharpe v. Dept. of Transp., 267 Ga. 267, 268 (476 SE2d 722) (1996). The intervening motions and testimony bore no relation to this expert’s evidence and provided no basis for a delayed motion to strike. Bryan’s attempted objection came too late, and he has failed to preserve this enumeration for review.

3. Finally, Bryan contends the trial court erred in allowing the issue of attorney fees to go to the jury. OCGA § 13-6-11 provides: “The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.”

A plaintiff may recover for bad faith concerning the transactions and dealings out of which the cause of action arose. A bona fide controversy within the contemplation of the code section pertains solely to the issue of stubborn litigiousness or causing the plaintiff unnecessary trouble and expense. Despite the existence of a bona fide controversy as to liability, a jury may find that defendant acted in the most atrocious bad faith in his dealing with the plaintiff. The question is whether there was bad faith concerning the transactions and dealings out of which the cause of action arose.

(Citations and punctuation omitted.) Stargate Software Intl. v. Rumph, 224 Ga. App. 873, 878 (4) (482 SE2d 498) (1997). “The standard of review of an award of attorney fees under OCGA § 13-6-11 is whether there is any evidence to support the award. [Cit.]” Spring Lake Property Owners Assn. v. Peacock, 260 Ga. 80, 81 (390 SE2d 31) (1990).

Here, Brown Childs presented some evidence of bad faith upon which the jury could have based its award. Brown Childs’s claims, as noted above, are based upon a document styled “Realtor’s Commission Agreement” entered into by Bryan and Brown Childs. Brown Childs’s president and a sales agent testified that the agreement was proposed by Bryan, and Bryan acknowledged proposing portions of the agreement, specifically the profit-sharing provisions. The agreement was drafted by Bryan’s counsel. Evidence was presented that Bryan and Brown Childs had a longstanding relationship and had entered into similar agreements in the past. Bryan testified that he had a verbal agreement with Brown Childs for the agreement to termínate in six months to a year, but he acknowledged that through an “oversight,” he did not place a provision to that effect in the agreement. He also acknowledged that he did not state that basis in his counsel's letter to Brown Childs repudiating the agreement. And at trial, Bryan acknowledged that Brown Childs was owed the deferred commissions recited in the agreement.

A mere refusal to pay a just debt, standing alone, is insufficient to support an award of attorney fees under OCGA § 13-6-11. But it may be sufficient when

it is not prompted by an honest mistake as to one’s rights or duties but by some interested or sinister motive. There may be bad faith in carrying out the provisions of the contract sufficient to support the award. We have previously upheld awards pursuant to OCGA § 13-6-11 which arose out of the defendant’s actions in breaching the contract, i.e., where the refusal to pay a debt was not made in good faith but was an attempt to defeat the clear intent of the contract.

(Citations and punctuation omitted.) Sass v. First Nat. Bank &c., 228 Ga. App. 7, 8 (1) (491 SE2d 76) (1997). Under these circumstances, some evidence was presented that Bryan repudiated the agreement not in good faith but in an attempt to defeat the terms of a contract that he himself had drafted because they proved disadvantageous to him. The trial court did not err in denying Bryan’s motion for a directed verdict on the issue of attorney fees.

Case No. A01A1050

In its sole enumeration of error on cross-appeal, Brown Childs asserts that the trial court erred in granting a directed verdict on the issue of whether its agreement with Bryan created an equitable interest in the subject property. We agree.

The “Realtor’s Commission Agreement” provides in its first two paragraphs for a deferred payment of additional compensation and “a realtor’s commission of 6%.” The third paragraph, which forms the basis of Brown Childs’s claim, provides:

In addition to the above, Bryan and Childs shall agree to divide the sales proceeds upon any resale as follows: (1) from the gross seller’s proceeds of sale there shall first be deducted the realtor’s 6% commission, as well as the $1,000 per acre deferred commission expense; (2) from the balance there shall next be subtracted the Seller’s closing costs; (3) there shall next be deducted and paid to Bryan the sum of $20,233 per acre as Bryan’s recoupment of his acquisition cost; (4) from the remaining funds there shall next be subtracted the sum of $10,000 per acre representing Bryan’s net profit to be received on the project; (5) the remaining sum shall be shared equally by Bryan and Childs.

This provision does not expressly create an equitable interest in the underlying realty, but it clearly and unambiguously provides for an equal division or sharing of sales proceeds after the deduction of Bryan’s profit and certain costs and expenses, including a real estate commission. The Supreme Court of Georgia has held that an agreement to pay 50 percent of the profits to be derived from the sale of a tract of land may create an equitable interest in that land. Bennett v. Padgett, 237 Ga. 532, 533-534 (228 SE2d 909) (1976).

Bryan argues that the agreement’s title establishes that it is merely an agreement for a real estate commission. But, even if ambiguous, a contract must be construed to “give a reasonable, lawful and effective meaning to all manifestations of intention by the parties rather than an interpretation which leaves a part of such manifestations unreasonable or of no effect.” (Citations and punctuation omitted.) Sheridan v. Crown Capital Corp., 251 Ga. App. 314, 316 (1) (554 SE2d 296) (2001). Viewed in this light, the language of the third paragraph is an agreement “to divide the sales proceeds” separate and apart from other portions of the agreement expressly providing for a commission. To construe the entire agreement as providing solely for a conventional real estate commission, as Bryan urges, would render paragraph three meaningless.

In his brief, Bryan argues that the testimony adduced at trial shows unambiguously that the parties’ intent was contrary to the plain language of the agreement and that the facts do not support the agreement’s creation of an equitable interest. In support of this proposition, he cites the affirmative response of a Brown Childs sales representative to the suggestion that the agreement was “purely for the payment of commissions.” But Bryan neglects to cite the following page, on which the witness clarified that the subject agreement was also a partnership with provision for splitting of the proceeds of the sale. Brown Childs’s president testified that the agreement was a partnership and did not require that Brown Childs sell the property in the futuré. She also testified that the deferred commission was invested into the property. Bryan also contends that Brown Childs’s expert made damaging admissions regarding the nature of the agreement. But the expert specifically addressed the issue of present value of the partnership or arrangement for dividing of proceeds, performing calculations based upon a step-by-step process that he explained to the jury.

We state no opinion as to whether Brown Childs might ultimately prevail on the basis of the evidence presented at trial. It may be, as Bryan contends, that sufficient evidence was presented to cause the jury to return a verdict in favor of Bryan, either by contradicting the parties’ intentions regarding the division of sales proceeds or by demonstrating that damages were too remote and speculative for ascertainment. But, as in Bennett, supra, “[g]enuine fact issues were presented to the jury,” id. at 533, and the jury should have been allowed to consider the conflicting testimony adduced at trial on this issue. The trial court therefore erred in taking this decision from the jury.

Decided November 16, 2001

Edenfield, Cox, Bruce & Classens, Gerald M. Eden field, Susan W. Cox, Robert S. Lanier, Jr., for appellant.

Franklin, Taulbee, Rushing, Snipes & Marsh, James B. Franklin, Daniel B. Snipes, for appellee.

Judgment affirmed in Case No. A01A1049. Judgment reversed in Case No. A01A1050.

Barnes and Phipps, JJ, concur.

       The surrender arose out of a complaint filed by Bryan with the Georgia Real Estate Commission in 1997. In August 1998, Brown Childs surrendered its real estate license and those of its salesman and broker on the ground of the ill health of Mr. Burton Brown Childs, the salesman and stockholder. Mr. Childs’s wife testified at trial that he was suffering from Parkinson’s, dementia, and “the beginning stages of Alzheimer’s.” As a result of the surrender, the investigation of Bryan’s complaint was terminated, and the licenses were revoked.


author: Blackburn, Chief Judge.

text:
    A01A1184, A01A1185.
    A01A1186.
    HAWKS et al. v. HINELY et al.; and vice versa. BRACKETT v. HAWKS et al.
    (556 SE2d 547)
   Blackburn, Chief Judge.

In these three related appeals involving Georgia’s Anti-Strategic Lawsuit Against Public Participation (SLAPP) Statute, OCGA § fill-11.1, John Hinely and Angela Brackett (the “Officials”) appeal the trial court’s dismissal without prejudice of their separate lawsuits against Jodi Hawks and Allen Williams (the “Constituents”). Each lawsuit revolves around allegations that the Constituents made in applications to recall the Officials as mayor and mayor pro tern of Port Wentworth. The trial court dismissed the Officials’ actions because they failed to verify their complaints as required by the antiSLAPP statute. On appeal, the Officials now contend that (a) the anti-SLAPP statute does not apply to their actions; (b) the Constituents waived any protection available under the anti-SLAPP statute; and, in the alternative, (c) the complaints satisfied the verification requirements of the anti-SLAPP statute, OCGA § 9-11-11.1 (b). The Constituents have also filed a cross-appeal, contending that the trial court erred by dismissing the Officials’ complaints without prejudice rather than with prejudice. For the reasons set forth below, we find that the trial court should have dismissed the claims of the Officials with prejudice.

On July 13, 2000, the Constituents filed applications with the Port Wentworth Election Superintendent seeking to recall the Officials pursuant to the Recall Act of 1989, OCGA § 21-4-1 et seq. In their applications, the Constituents alleged that the Officials violated their oaths of office by inappropriately purchasing a fire truck for Port Wentworth.

On July 17, 2000, the Officials sought judicial review of the grounds asserted in the recall applications pursuant to the Recall Act of 1989. OCGA § 21-4-6. The Officials named the Constituents as defendants, as well as David Sutherland in his official capacity as Election Superintendent of Port Wentworth. In addition, the Officials sought an injunction to stop the recall process. In connection with their request for injunctive relief, the Officials verified that the allegations in their complaints were true; however, they did not submit a verification that complied with the requirements of the anti-SLAPP statute.

On July 21, 2000, the Constituents, acting pro se, timely answered the complaints against them contending that all issues were moot because they had withdrawn their applications for recall petitions on July 20, 2000. On July 24, 2000, the Officials filed amended complaints, alleging for the first time, intentional and negligent infliction of emotional distress and physical injury brought about by the allegations in the applications. The Officials did not verify their amended complaints.

On July 31, 2000, the Constituents amended their answers and moved to dismiss the lawsuits on grounds that the Officials’ complaints failed to meet the verification requirements of the antiSLAPP statute. On August 14, 2000, more than ten days after notification of the deficiency, the Officials filed amended verifications that complied with the anti-SLAPP statute.

After a hearing, the trial court found that the Officials’ claims were not mooted by the withdrawal of the recall applications because the Recall Act of 1989 does not allow for such complete withdrawal. The trial court next dismissed the Constituents’ applications because they were not supported by sufficient evidence of wrongdoing. The trial court also dismissed the Officials’ lawsuits without prejudice, finding that they had not been properly verified in accordance with the anti-SLAPP statute. It is from the dismissal of the lawsuits that all parties appeal.

Case Nos. A01A1185 and A01A1186

1. The Officials claim that the trial court erred by (a) applying the anti-SLAPP statute to this case, (b) concluding that the Constituents had not waived any protection available under the anti-SLAPP statute, and (c) finding that the complaints did not satisfy the verification requirements of the anti-SLAPP statute, OCGA § 9-11-11.1 (b).

(a) The Officials claim that the anti-SLAPP statute’s verification requirements do not apply to their lawsuits. We disagree.

The stated purpose of the anti-SLAPP statute is “to encourage participation by the citizens of Georgia in matters of public significance through the exercise of their constitutional rights of freedom of speech and the right to petition government for redress of grievances.” OCGA § 9-11-11.1 (a). With the anti-SLAPP statute, the General Assembly sought to prevent the chilling effect that abusive lawsuits would have on the valid exercise of these rights. Id.

To prevent abusive litigation against a person exercising those rights, the statute provides that a detailed verification must be filed with any claim arising from an act “which could reasonably be construed as an act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern.” OCGA § 9-11-11.1 (b). Such protected acts are further defined to include:

[(1)] any written or oral statement, writing, or petition made before or to a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, or [(2)] any written or oral statement, writing, or petition made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.

OCGA § 9-11-11.1 (c).

Here, the Constituents followed the statutory procedure established by the Recall Act of 1989, OCGA § 21-4-1 et seq., to petition for the recall of the Officials. Filing an application for the recall of elected officials in accordance with state law is an act in furtherance of the right to petition the government to redress grievances within the meaning of Georgia’s anti-SLAPP statute. See OCGA § 9-11-11.1 (b). Accordingly, the Officials’ lawsuits, which stem from statements made in the applications, are subject to the verification requirements of OCGA § 9-11-11.1 (b).

The Officials argue narrowly that the anti-SLAPP statute encompasses only statements made to existing “proceedings.” They contend that, because the statements in the recall applications were made prior to the initiation of a “proceeding,” the verification requirements of the anti-SLAPP statute do not apply to their complaints. “ Tt is the duty of the court [, however,] to consider the results and consequences of any proposed (statutory) construction and not so construe a statute as will result in unreasonable or absurd consequences not contemplated by the legislature.’ ” Cronan v. State.

The Officials’ myopic construction would produce such undesirable and illogical results and consequences. The legislative intent behind the anti-SLAPP statute is to protect the public’s right to petition the government for the redress of grievances on matters of public concern. OCGA § 9-11-11.1 (a). Excluding the petition itself that initiates a “proceeding” to address matters of public concern from the reach of the anti-SLAPP statute would defeat a central purpose of the statute — to protect the right to petition government. We have no difficulty finding that the statements made in the recall applications trigger the procedural safeguards of the anti-SLAPP statute. The trial court did not err by applying the verification requirements of OCGA § 9-11-11.1 to the Officials’ lawsuits.

(b) The Officials claim that the Constituents waived their right to raise the procedural safeguards of the anti-SLAPP statute by failing to raise lack of verification as grounds for dismissal in their original answers. Again, we disagree.

Although the Constituents did not raise the anti-SLAPP statute as a defense in their initial answers, filed July 21, 2000, the Officials likewise did not assert claims against the Constituents in their initial complaints; they merely sought superior court review of the sufficiency of the applications. Therefore, the anti-SLAPP statute was not implicated at the time the Constituents initially answered. The antiSLAPP statute did not apply until the Officials filed amended complaints, asserting claims for emotional distress and physical injury against the Constituents. Once the Officials asserted these claims, the Constituents immediately raised the anti-SLAPP statute as grounds for dismissal. Therefore, the Constituents did not waive the right to raise the anti-SLAPP statute’s verification requirements as a defense.

(c) In the alternative, the Officials erroneously claim that their complaints did satisfy the verification requirements of the antiSLAPP statute.

Once the anti-SLAPP statute applies, a claimant must file the statutory verification contemporaneously with the pleading. OCGA § 9-11-11.1 (b).

Such written verification shall certify that the party and his or her attorney of record, if any, have read the claim; that to the best of their knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; that the act forming the basis for the claim is not a privileged communication under paragraph (4) of Code Section 51-5-7; and that the claim is not interposed for any improper purpose such as to suppress a person’s or entity’s right of free speech or right to petition government, or to harass, or to cause unnecessary delay or needless increase in the cost of litigation.

OCGA § 9-11-11.1 (b). If the claim is not verified as required by the anti-SLAPP statute, it “shall be stricken,” unless it is verified within ten days after the omission is called to the attention of the party asserting the claim. OCGA § 9-11-11.1 (b); Davis v. Emmis Publishing Corp.

The Officials argue that the penalty of striking a pleading applies only where absolutely no verification is attached to the complaint, not where a deficient verification is timely filed and later corrected outside the ten-day period. In support of this argument, the Officials cite Davis, supra. However, this argument fails.

We are bound to follow the express statutory language of OCGA § 9-11-11.1 (b), which requires that claims “not verified as required by this subsection” must be stricken unless remedied within ten days after the defect is called to the attention of the person making the claim. Whether the verification is completely omitted or merely deficient upon filing, the claimant must remedy the situation within the statutory ten-day period or the complaint “shall be stricken.” OCGA § 9-11-11.1 (b); Davis, supra. This statutory language, which is plain on its face, does not allow for the construction now proposed by the Officials.

Moreover, Davis, supra, does not support the Officials’ argument. In Davis, the plaintiff filed proper verifications with his amended complaint more than ten days (approximately two months) after the failure to verify was first brought to his attention. Davis, supra. There, we held that failure to verify as required by OCGA § 9-11-11.1 (b) was not an amendable defect unless done within the statutory ten-day period. Id. We did not hold, as the Officials argue, that the ten-day period applies only when a claimant omits the verification altogether.

Here, it is undisputed that the Officials filed verifications with their original complaints, but the verifications did not conform to the requirements of the anti-SLAPP statute. OCGA § 9-11-11.1 (b). The Officials verified only that the factual statements contained in their complaints were true; their counsel did not file verifications at all. The Officials did not file proper verifications until August 14, 2000, 14 days after being served with the amended answers that called the verification defects to their attention. Thus, the amended verifications were untimely, and the claims were properly stricken. The trial court did not err.

Case No. A01A1184

2. The Constituents contend that the trial court erred by dismissing the Officials’ lawsuits without prejudice rather than with prejudice. We agree because, to hold otherwise, would frustrate the purpose of the anti-SLAPP statute.

As discussed above, the explicit rationale behind the anti-SLAPP statute is “to encourage participation by the citizens of Georgia in matters of public significance through the exercise of their constitutional rights of freedom of speech and the right to petition government for redress of grievances.” OCGA § 9-11-11.1 (a). In order to achieve this purpose, the anti-SLAPP statute employs verification requirements to discourage cavalier and unfounded lawsuits filed against someone exercising his right to petition government. OCGA § 9-11-11.1 (b). By requiring the party opposing the petitioner and his attorney to verify the substance of their complaint, and thereby face sanctions if the verification proves substantively improvident, the anti-SLAPP statute insures that any challenge to the right to petition government must be based on substantive facts.

With this rationale in mind, we believe that the anti-SLAPP statute’s mandate that an improperly verified complaint shall be stricken necessarily means that the claims in any such complaint must be dismissed with prejudice. In Davis, supra, we held:

[I]t is undisputed that Davis failed to file the verifications with his complaint and that the omission was raised by the defendants in their answer. It is also undisputed that Davis filed the verifications with his amended complaint more than ten days (approximately two months) after the failure to file was first brought to his attention. We are bound to follow the express language of the statute. Applying that language, Davis was not free to amend the complaint after the ten-day period for the remedy of such failure had already expired. Furthermore, the statute explicitly mandates that the claim “shall be stricken” if the verification is not filed timely. “ ‘Shall’ ordinarily denotes command and not permission.” Ring v. Williams. Thus, the trial court erred in holding that Davis’ failure to verify his complaint as required by law was an amendable defect.

Id. at 798 (3).

Contrary to the arguments of the Officials, dismissal of improperly verified complaints pursuant to OCGA § 9-11-11.1 is neither improper nor extreme. The verification requirements of the statute are relatively simple and straightforward. Minimal effort is necessary by the party bringing suit to verify his complaint, and, if that party verifies improperly, he is given an additional ten days from the day that he is informed of the deficiency to correct his complaint. A party who fails to comply with such a simple prerequisite, which, in turn, protects the important right to petition government, should be subject to dismissal with prejudice. Moreover, we point out that such dismissal affects only the claims raised in that particular complaint which are not properly verified. Other claims may be brought later in a separate complaint if they are properly verified.

Decided November 16, 2001

Jones, Boykin & Associates, Charles W. Snyder, for Hawks.

Savage & Turner, Robert S. Kraeuter, Steven E. Scheer, for Hinely and Brackett.

And, this procedure strikes the appropriate balance between one party who wishes to petition the government to address grievances and another party who wishes to bring a lawsuit stemming from the acts of the petitioner. The petitioner is encouraged to file his grievances with protection from vengeful politicos, while opposing parties, who have valid substantive claims, are still allowed to bring such claims following a simple verification procedure.

In dicta, Browns Mill Dev. Co. v. Denton purports that dismissal for failure to comply with the verification requirements of OCGA § 9-11-11.1 (b) is without prejudice. As an initial matter, that issue was not before this Court in Denton, and, as such, it is not controlling here. Moreover, we point out that, because all judges on the panel in Denton did not concur fully, that case is physical precedent only.

Denton reached its conclusion by comparing the dismissal of claims pursuant to OCGA § 9-11-11.1 (b) with the handling of claims under OCGA § 9-11-12 (b). Specifically, Denton cites OCGA § 9-11-12 (b) (1) (lack of subject matter jurisdiction), (5) (insufficiency of service of process), and (7) (failure to join a necessary party) for its contention. While Denton is correct in making reference to OCGA § 9-11-12 (b), the most appropriate analogy, however, is to OCGA § 9-11-12 (b) (6) involving failure to state a claim on which relief can be granted. The verification process under OCGA § 9-11-11.1 (b) insures that the claims it covers are substantively proper, not frivolous attempts to chill political speech. As such, like a decision on an OCGA § 9-11-12 (b) (6) motion, a dismissal pursuant to OCGA § 9-11-11.1 (b) operates as a dismissal with prejudice.

Judgments affirmed in Case Nos. A01A1185 and A01A1186. Judgment reversed in Case No. A01A1184.

Pope, P. J., and Mikell, J, concur.

       The Recall Act of 1989 sets forth a detailed procedure to petition for the recall of public officials who hold elective office. Sponsors of applications for recall petitions submit official applications to the appropriate election superintendent. OCGA §§ 21-4-5 (b) (2), (d); 21-4-3 (3). The sponsors must testify by affidavit that the persons signing are electors authorized to sign and that the facts and grounds are true. OCGA § 21-4-5 (b) (1) (E) (i). Upon receipt of the application, the election superintendent determines the legal sufficiency of the application. OCGA § 21-4-5 (f) (2). In reviewing the sufficiency of the application, the election superintendent is granted unrestricted authority to examine registration records, to receive evidence and testimony, and to require personal appearance of any person signing the application. OCGA § 21-4-5 (f) (2). Upon certifying the legal sufficiency of the application, the election superintendent files a certification and issues official petition forms for circulation. OCGA § 21-4-5 (h).

       Under the anti-SLAPP statute, the verification must include, among other things, a statement that the suit is well grounded in fact and law or represents a good faith argument for the extension of existing law; that the act forming the basis of the suit is not privileged under OCGA § 51-5-7; and that the suit is not filed for any improper purpose, such as to suppress a person’s right to free speech or right to petition government. OCGA § 9-11-11.1 (b).

       We express no opinion as to whether the trial court was correct in its assessment that applications for recall petitions may not be withdrawn, as this issue is not before the Court.

        Cronan v. State, 236 Ga. App. 374, 377 (2) (511 SE2d 899) (1999).

       We also reject the Officials’ argument that the attempted withdrawal of the recall applications avoids the anti-SLAPP statute. The Officials’ lawsuits arise out of statements made by the Constituents in furtherance of their right to petition the government concerning matters of public interest. OCGA § 9-11-11.1. Withdrawal of the applications does not change this fact. The status of the recall applications is therefore irrelevant.

       We express no opinion as to whether the failure to meet the verification requirements of the anti-SLAPP statute is an affirmative defense which is waivable if not raised in the first responsive pleading.

        Davis v. Emmis Publishing Corp., 244 Ga. App. 795, 798 (536 SE2d 809) (2000).

        Ring v. Williams, 192 Ga. App. 329, 330 (2) (384 SE2d 914) (1989).

        Browns Mill Dev. Co. v. Denton, 247 Ga. App. 232 (543 SE2d 65) (2000).


author: Pope, Presiding Judge.

text:
    A01A0977.
    BABB v. THE STATE.
    (556 SE2d 562)
   Pope, Presiding Judge.

David Babb appeals following his conviction on two counts of battery and one count of simple battery. We affirm.

On July 29, 1999, Babb struck his sister Laura Babb across the face with the back of his hand. Her neighbor, Evelyn Burdette, and another friend testified that Laura Babb’s face appeared red and puffy or swollen after the incident. Following Babb’s conviction, the trial court merged the two battery counts for sentencing purposes. Babb was sentenced to serve two years on probation, to perform forty hours of community service within the first six months, and to attend an intensive domestic violence intervention program.

1. Babb complains that the trial court erred in failing to grant a mistrial after Laura Babb referred to his probation status in response to a question on cross-examination.

Babb’s counsel made an oral motion in limine prior to trial seeking to exclude evidence of Babb’s prior convictions. The counsel asked the trial court to instruct all the witnesses not to bring up Babb’s criminal history. The trial court simply responded, “Okay,” without elaboration. Although there is no other record of a ruling on the motion in limine prior to trial, the prosecutor later stated that he had instructed Laura Babb not to mention Babb’s criminal history.

During Laura Babb’s cross-examination, Babb’s attorney asked whether it was true that Babb had visited his father about once a month. She replied that it was not true and started to explain by stating, “He was telling his probation officer he was coming to Atlanta, but he was. . . .” The trial court denied Babb’s motion for mistrial and instructed the jury to disregard the testimony as it addressed matters “not in this case whatsoever.”

It is in the trial court’s discretion whether to grant a mistrial based on improper character evidence. Sims v. State, 268 Ga. 381, 382 (2) (489 SE2d 809) (1997). In considering whether the trial court properly denied the motion, we may consider “the nature of the statement, the other evidence in the case, and the court’s and counsel’s action in dealing with the impropriety.” (Citation omitted.) Sweeder v. State, 246 Ga. App. 557, 561 (5) (541 SE2d 414) (2000). Here, Laura Babb’s reference to Babb’s probation officer was shortly followed by the trial court’s curative instructions to disregard the question and answer. Our Supreme Court has held that curative instructions can be an adequate remedy when a witness improperly places a defendant’s character into issue. Sims, 268 Ga. at 382 (2).

Therefore, considering the evidence introduced at trial, the nature of the character evidence complained of, and the remedial measures taken by the trial court, we find no abuse of discretion in the denial of Babb’s motion for mistrial. See Sims, 268 Ga. at 382 (2). (no mistrial warranted where reference to probation officer arresting defendant at probation office); Brown v. State, 268 Ga. 455, 456 (1) (490 SE2d 379) (1997) (same where reference to outstanding probation violation warrants).

2. Next, Babb argues that the trial court erred in failing to give curative instructions after a state’s witness made reference to Babb’s “history of violence.” But because Babb’s counsel failed to object on the record to this testimony at trial, any right of appeal on the issue is waived. Trotter v. State, 248 Ga. App. 156, 157-158 (2) (546 SE2d 286) (2001).

3. Babb also contends that the trial court erred in admitting evidence of past difficulties between Laura Babb and him without giving limiting instructions on the use of such evidence. But the trial court did give limiting instructions in its jury charge at the end of the trial. And where Babb’s counsel neither objected nor requested contemporaneous hmiting instructions, there was no error. See Spear-man v. State, 267 Ga. 600, 601 (4) (481 SE2d 814) (1997); Murphy v. State, 270 Ga. 72, 73-74 (2) (b), n. 3 (508 SE2d 399) (1998).

Babb also contends that the evidence of prior difficulties with his sister was too remote in time and therefore its probative value was outweighed by its prejudicial effect. One incident occurred fourteen years before the altercation at issue, and the second occurred eleven years earlier. But “[a] lapse of 11 years between a prior difficulty and the crime charged does not necessarily render the evidence inadmissible as a matter of law. [Cits.]” Simmons v. State, 266 Ga. 223, 225 (2) (b) (466 SE2d 205) (1996). Similarly, the lapse of fourteen years cannot be considered too remote as a matter of law, especially as the testimony showed that the two had no contact for six of those intervening years. Instead, the lapse of time goes to the weight and credibility of the evidence not to its admissibility. Id.; Emory v. State, 260 Ga. 814, 815 (3) (b) (400 SE2d 625) (1991).

Babb also asserts that the trial court should have held a pre-trial hearing prior to admitting the evidence. But our Supreme Court has held that no pre-trial hearing or findings are necessary before evidence of prior difficulties between the defendant and the victim can be admitted at trial. Wall v. State, 269 Ga. 506, 509 (2) (500 SE2d 904) (1998).

4. Babb contends that the trial court erred in sentencing him on one count of simple battery under OCGA § 16-5-23 and one count of battery under OCGA § 16-5-23.1 as the evidence showed only one physical contact between his sister and him. He asserts that the charges should have merged as a matter of fact. We agree.

“The key question in determining whether a merger has occurred is whether the different offenses are proven with the same facts. . . . However, if the same facts are used to prove the different offenses, the different crimes merge.” (Citations, punctuation and footnote omitted.) Robinson v. State, 246 Ga. App. 576, 583-584 (8) (541 SE2d 660) (2000). Therefore, the dispositive issue is whether the state “used up” its evidence in proving one crime, leaving no further evidence to support a second crime. Brown v. State, 246 Ga. App. 60, 64 (1) (539 SE2d 545) (2000).

Babb was charged with two counts of battery and one count of simple battery. The two battery counts were pled in the alternative: Count 1 alleged “visible bodily harm,” and Count 2 alleged “substantial physical harm.” Count 3 alleged contact of an insulting or provoking nature to assert a charge of simple battery. The jury found Babb guilty on all three counts. The trial court properly merged the battery counts, Counts 1 and 2, for sentencing purposes, giving Babb a 12-month sentence. But Babb was sentenced to an additional 12-month sentence, to run consecutively, on the simple battery charge under Count 3.

The evidence here showed that Babb struck his sister once, leaving her face red and swollen. While that evidence may have been sufficient to support any one of the crimes charged, it is not sufficient to support more than one charge. Evidence of physical harm or contact is necessary to prove each of the crimes, and there was only one contact and one resulting harm. Accordingly, the three counts merge as a matter of fact, and the trial court erred in sentencing Babb on two counts. Therefore, we remand the case to the trial court for action consistent with this opinion. See generally Etchinson v. State, 245 Ga. App. 449, 451 (2) (538 SE2d 87) (2000).

5. Babb also contends that the evidence was insufficient to support the jury’s verdict. We find that the evidence was sufficient to support a verdict of either battery, which requires a showing of substantial physical harm or visible bodily harm, or simple battery, which required intentional physical contact of an insulting or provoking nature. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

6. Babb next asserts that he was denied his Sixth Amendment right to counsel at his motion for new trial. He asserts that the trial court failed to inquire and the state failed to prove that he knowingly and voluntarily waived his right to counsel at the hearing.

“A defendant may waive the right to counsel only by voluntary and knowing action.” (Punctuation and footnote omitted.) Ledford v. State, 247 Ga. App. 885, 886-887 (545 SE2d 396) (2001). And while no particular questions are required, “the record must reflect that the defendant was made aware of the dangers of self-representation, and nevertheless made a knowing and intelligent waiver.” (Citation and punctuation omitted.) State v. Watson, 244 Ga. App. 484 (536 SE2d 170) (2000).

Decided November 19, 2001.

Laila A. Washington, for appellant.

Gwendolyn R. Keyes, Solicitor-General, Theresa S. Starkes, Assistant Solicitor-General, for appellee.

Here, the record shows that Babb filed his motion pro se and appeared at the hearing without counsel. At the beginning of the hearing, the trial court merely confirmed that Babb had filed the motion himself and that he was going forward as his own counsel. There is no evidence of any other discussion or inquiry.

Nevertheless, “an appellate court, using the appropriate standard, may find in a particular case that error committed by the trial court was constitutionally harmless, without remanding the case for further proceedings.” State v. Hightower, 236 Ga. 58, 61 (222 SE2d 333) (1976) (finding no constitutional harm from the denial of counsel at a commitment hearing). Here, the only harm asserted by Babb was that he was unable to effectively argue his ineffective assistance of counsel claims because he was unaware that he could subpoena his earlier counsel and establish an evidentiary record to support his claim. No harm is asserted as to the remainder of the grounds argued by Babb, and such claims do not rely upon the development of additional evidence.

Based upon our review of the record, we find that the state has failed to show that Babb knowingly and voluntarily waived his right to counsel at the new trial hearing and that as a result he was prejudiced in presenting his claim for ineffective assistance of counsel. Accordingly, we remand this case for a hearing on Babb’s claim of ineffective assistance of counsel.

7. We have reviewed the remaining enumerations of error raised by Babb and find that they either were not properly preserved for appellate review or are without merit.

Judgment affirmed in part, reversed in part and remanded with direction.

Blackburn, C. J., and Mikell, J., concur.


author: Phipps, Judge.

text:
    A01A1201.
    SOUTHLAND OWNERS ASSOCIATION, INC. v. MYLES.
    (555 SE2d 530)
   Phipps, Judge.

Southland Owners Association, Inc. (Association), a mandatory homeowners’ association for Southland subdivision in DeKalb County, sued Joe E. Myles, a resident of the subdivision, alleging that by adding a second driveway to his property, Myles violated the recorded Declaration of Covenants, Conditions, and Restrictions (Declaration) that governed the subdivision. The Association sought an injunction requiring Myles to remove the driveway, attorney fees, and litigation expenses. The Association filed a motion for summary judgment, which, after a hearing, the trial court denied. After a bench trial, the court found in favor of Myles. The Association appeals, contending that the trial court erroneously denied it summary judgment and that it improperly shifted the burden of proof at trial, which led to the erroneous denial of injunctive relief and attorney fees. Because the record shows that the court did not manifestly abuse its discretion in denying the injunction and because the denial of summary judgment and the issue of attorney fees are now moot, we affirm.

At trial, the Association’s sole witness on the issue of the injunction was a member of the Association’s board, who testified that in June 1997, Myles installed a second driveway on his property without having obtained approval of the Association’s Architectural Review Committee (ARC). Because the Association advised Myles that it still required him to obtain the ARC’s approval, Myles submitted a request form that provided specifications for the driveway. The form showed that the driveway approached from the east side of the house and ended at a basement door. The main driveway was on the west side of the house, approaching from the front of the house and ending near the back of the house. The Association’s manager notified Myles that his request had been denied and sent him a copy of Section 10.05 of the Declaration, which provided that “to preserve the architectural and aesthetic appearance” of the subdivision, no construction or improvements affecting the exterior appearance of any residence could be made unless and until the ARC approved the specifications “as to the compliance” with ARC’s standards, “including the harmony of external design, location and appearance in relation to surrounding structures and topography.” Section 10.05 further stated that the ARC could deny a request on any ground consistent with the Declaration, “including purely aesthetic considerations, so long as such grounds are not arbitrary or capricious.” When Myles did not respond to the Association’s demands to restore his property to its original condition, the instant action ensued.

Pro se, Myles defended the action by essentially claiming that there had been no valid decision by the ARC because the decision it made was procedurally unfair and the substantive decision was arbitrary and capricious. He testified that his second driveway was “not in violation of the appearance in the surrounding area” and was “not interfering with the aesthetic [s] of the architectur[e] and beauty . . . of the community.” He presented the testimony of his wife, who described two other houses in their cul-de-sac with second driveways — one parallel to the main driveway, and another one that was circular, but, nonetheless, detached from its main driveway. Myles also introduced into evidence photographs showing those neighbors’ driveways. Myles and his wife testified that the house located behind their home was the only one in the neighborhood painted in its particular colors and that the house had the only yard in the neighborhood consisting of fifty percent pine needles, rather than grass, trees, and shrubs. Myles argued that permitting that house to exist in that condition violated the Declaration and further demonstrated that the ARC had enforced the Declaration unfairly, arbitrarily, and capriciously.

During cross-examination of Myles and his wife, the Association’s attorney adduced testimony that they did not know of the circumstances of any of their neighbors’ applications or the ARC’S approvals/denials of second driveways. Myles had not served on the Association’s board nor the ARC’S board. And although Myles had requested to review meeting minutes of those boards and had asked for the names of the members of those boards, his requests were not granted.

1. The Association contends that the trial court erroneously denied it injunctive relief. It claims that the denial was caused by the court improperly shifting the burden of proof, pointing to language in the court’s order, “Here, the [Association] seeks a permanent injunction and it is [the Association’s] burden to prove by a preponderance of the evidence that the denial was not based on arbitrary or capricious grounds.” The Association argues that it had no such burden and further asserts that Myles presented no evidence on that issue. “Where, as here, the declaration delegates decision-making authority to a group and that group acts, the only judicial issues are whether the exercise of that authority was procedurally fair and reasonable, and whether the substantive decision was made in good faith, and is reasonable and not arbitrary and capricious.”

Here, the Association claimed that Myles violated the covenant by adding a second driveway without first obtaining the Association’s approval. It denied Myles’s subsequently submitted request. Myles admitted that he did not have approval to install the second driveway, but he asserted that the Association’s denial was proeeduraUy unfair and substantively arbitrary and capricious. Because proof of that assertion was essential to his defense, the burden of proving that affirmative defense by a preponderance of the evidence rested on Myles. Contrary to the Association’s assertion, the record shows that Myles produced prima facie evidence to that effect through his own testimony, the testimony of his wife, and photographs. Therefore, the burden of producing rebuttal evidence shifted to the Association.

The Association put forth no basis for a finding that it had not acted as asserted. Rather, it pointed to what it considered to be weaknesses in Myles’s defense. Although the Association’s attorney referred to meeting minutes of the board and the ARC, he did not introduce any minutes into evidence. And although the Association’s hoard member testified that the ARC had “considered” Myles’s request, the board member went on to admit that he was not a member of the ARC at that time, was not present when it met regarding Myles’s request, and did not know why the request was denied.

We agree with the Association that Myles had the burden of proving his defense. And we find that Myles presented uncontradicted circumstantial evidence of his affirmative defense. Under these circumstances, because we find that the evidence authorized the trial court’s ruling, we cannot say that the court manifestly abused its discretion in denying the injunction.

2. Based on our decision in Division 1, the Association’s contention that the trial court should have granted it attorney fees pursuant to OCGA § 13-6-11 because Myles acted in bad faith in forcing it to file suit is moot.

3. The Association contends the trial court erroneously denied it summary judgment, asserting that it made its prima facie case and Myles failed to respond. Because the case went to trial and the court rendered judgment, this contention is moot.

Decided November 20, 2001.

Weissman, Nowack, Curry & Wilco, Derek W. Johanson, for appellant.

Richard G. Harwell, Sr., for appellee.

Joe E. Myles, pro se.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

        Saunders v. Thorn Woode Partnership, 265 Ga. 703, 704 (2) (462 SE2d 135) (1995).

        Telecash Investments v. Lagrone, 241 Ga. App. 66, 69 (2) (525 SE2d 112) (1999); Weir v. Kirby Constr. Co., 213 Ga. App. 832, 836 (4) (446 SE2d 186) (1994).

       See Hawkins v. Davie, 136 Ga. 550, 551-552 (1) (71 SE 873) (1911); Metro. Publishers Representatives v. Anrsdorff, 153 Ga. App. 877, 878 (1) (267 SE2d 260) (1980); Williamson, Inman & Co. v. Thompson, 53 Ga. App. 821, 827 (9) (a) (187 SE 194) (1936); OCGA § 24-4-1.

       See Hawkins, supra.

       Compare Spratt v. Henderson Mill Condo. Assn., 224 Ga. App. 761, 763-764 (1) (481 SE2d 879) (1997) (summary judgment in favor of the homeowners’ association was proper where defendant/homeowner pointed to no evidence that the request was treated any differently than other similar requests and evidence showed that association deliberated for over an hour before denying homeowner’s request based on specific reasons).

       See Southern R. Co. v. Ga. Kraft Co., 258 Ga. 232 (367 SE2d 539) (1988); compare Frazier v. Ga. R. & Banking Co., 108 Ga. 807 (33 SE 996) (1899).

       See Bennett Street Properties v. CSX Transp., 248 Ga. App. 686,688 (2) (548 SE2d 619) (2001); Russell Corp. v. BancBoston Financial Co., 209 Ga. App. 660, 663 (6) (434 SE2d 716) (1993).


text:
    A01A1226.
    SATTERFIELD v. THE STATE.
    (556 SE2d 568)
   Blackburn, Chief Judge.

Following a jury trial, Stephen Miller Satterfield, a Georgia resident with a state driver’s license, appeals his conviction for driving with an unlawful blood alcohol concentration (OCGA § 40-6-391 (a) (5)) and driving under the influence of alcohol to the extent that he was less safe (OCGA § 40-6-391 (a) (l)), contending that, because the arresting officer repeated the implied consent warning improperly, the results of his Intoxilyzer breath test should have been suppressed. For the reasons set forth below, we affirm.

On appeal from a denial of a motion to suppress, this Court must construe the evidence most favorably to uphold the ruling of the trial court. State v. Winnie. Furthermore, the trial court’s application of law to facts which are undisputed is subject to de novo review. Id.

The record shows that Officer Wells pulled Satterfield over for speeding. Once stopped, Satterfield showed signs of intoxication, and Officer Wells ultimately arrested Satterfield for driving under the influence, read the implied consent warning to Satterfield, and asked him to submit to a State-administered breath test. It is undisputed that Officer Wells’ first recitation of the implied consent warning was proper. After this first reading of the warning, Satterfield refused the request to submit to the breath test.

Subsequently, in response to Satterfield’s questions about what was going to happen to him, Officer Wells repeated a portion of the implied consent warning to Satterfield; however, he altered the warning slightly. The implied consent warning applicable to Satterfield reads: “ Tf you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial.’ ” OCGA § 40-5-67.1 (b) (2). Varying slightly from this language, Officer Wells told Satterfield that his license would “automatically” be revoked if he refused to submit to the State’s breath test and that evidence of his refusal “would” be used against him at trial. At that time, Satterfield changed his mind and consented to the State’s breath test.

1. On appeal, Satterfield first contends that Officer Wells’ use of the word “automatically” improperly altered the substance of the implied consent warning, thereby swaying his decision to submit to the breath test. Because of this alleged coercive misinformation, Satterfield argues that the results of his Intoxilyzer breath test should have been suppressed. We disagree.

As an initial matter, OCGA § 40-5-67.1 (b) (3) provides that, if an implied consent warning

is used by a law enforcement officer to advise a person of his or her rights regarding the administration of chemical testing, such person shall be deemed to have been properly advised of his or her rights under this Code section and under Code Section 40-6-392 and the results of any chemical test, or the refusal to submit to a test, shall be admitted into evidence against such person. Such notice shall be read in its entirety but need not be read exactly so long as the substance of the notice remains unchanged.

(Emphasis supplied.)

Here, Satterfield erroneously argues that Officer Wells modified the substance and meaning of the implied consent warning because the applicable statute does not allow for the automatic suspension of a resident driver’s license. Satterfield contends that the statute’s provisions for an administrative review of the suspension prevents automatic suspensions. This reading of the statute is incorrect.

OCGA § 40-5-67.1 (d) provides:

If a person under arrest . . . refuses, upon the request of a law enforcement officer, to submit to a chemical test designated by the law enforcement officer ... , no test shall be given; but the law enforcement officer shall report the refusal to the department. Upon the receipt of a sworn report of the law enforcement officer that the officer had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a moving motor ■ vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40-6-391 . . . and that the person had refused to submit to the test upon the request of the law enforcement officer, the department shall suspend the person’s driver’s license . . . for a period of one year . . . , subject to review as provided for in this chapter.

(Emphasis supplied.) Subsequent to this suspension, the driver may, if hp wishes to do so, request a limited hearing to determine the propriety of the suspension. See OCGA § 40-5-67.1 (g).

Therefore, as Officer Wells stated to Satterfield, the implied consent statute does provide for the automatic suspension of a resident driver’s license upon refusing the request to take the State’s chemical test. Following any such refusal, the arresting officer has an obligation to file a report and submit a sworn statement. In turn, upon the filing of this mandatory information, the statute provides that the driver’s license shall be suspended for a period of one year. The fact that the suspension may subsequently be challenged, at the option of the driver, does not obviate the suspension which has already been set in place before any such hearing occurs. Accordingly, Officer Wells’ statement to Satterfield that his license would be automatically suspended, rather than merely saying that it would be suspended, left the substance of the implied consent notice unchanged.

2. Satterfield also argues that Officer Wells altered the substance of the implied consent statute by telling him that evidence of his refusal “would be” offered into evidence against him at trial rather than such admission was permissive, as provided for in the statute. Again, this argument misconstrues the implied consent statute.

OCGA § 40-5-67.1 (b) (3) states that the refusal to submit to a test “shall be admitted into evidence.” The bottom line, then, is that evidence of refusal will be admissible if the prosecutor wishes to proffer such information. Thus, whether Satterfield was informed that the refusal would be admitted or could be admitted, he faced the same concern in either scenario — that a trial court ultimately would consider the evidence of his refusal. Therefore, contrary to Satterfield’s argument, the “would be” scenario is not more coercive than the “could be” scenario because both could result in the admission of the refusal into evidence. As such, the substance of the implied consent notice remained essentially the same, and Satterfield’s decision to submit to the testing process was not improperly coerced.

Moreover, we point out that, although Satterfield testified below that Officer Wells’ statement that his license would be automatically suspended had a bearing on his decision to take the State’s breath test, he made no similar mention of the statement regarding admission of the refusal against him at trial.

Decided November 20, 2001

McDonald & Cody, Douglas W. McDonald, Jr., for appellant.

Gerald N. Blaney, Jr., Solicitor-General, Stephen A. Fern, Jeffrey P. Kwiatkowski, Assistant Solicitors-General, for appellee.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

       Satterfield was also convicted of speeding; however, he does not challenge this conviction on appeal.

        State v. Winnie, 242 Ga. App. 228, 229 (529 SE2d 215) (2000).