text:
    A95A0249.
    WILLIAMS v. THE STATE.
    (457 SE2d 257)
   Smith, Judge.

Willie Gene Williams was indicted on charges of peeping Tom, burglary, aggravated assault, simple battery, and attempted rape, arising out of two separate incidents. A jury convicted him of burglary, OCGA § 16-7-1, aggravated assault, OCGA § 16-5-21, and simple battery, OCGA § 16-5-23, and acquitted him on the two remaining charges. His motion for new trial was denied and he appeals.

1. Williams first complains of a comment the trial judge made while dismissing the jurors for the evening: “Ladies and gentlemen, this is serious business. You are going to get down to some serious deliberations tomorrow, and you’re going to resolve this case. Okay? I don’t have a thing to do tomorrow. I don’t have a thing to do Saturday. I don’t have a thing to do Sunday, and I’ll be back up here Monday having court again. Okay?” The trial judge twice instructed the jurors not to continue their deliberations until they returned in the morning. In the morning, the trial judge gave the jury a standard “Allen charge,” including that a verdict should be reached “if possible,” that no juror should merely acquiesce in order to reach an agreement, and that the issues should be decided if the jurors “conscientiously” could do so.

We must consider whether the trial court’s instructions, taken as a whole, were “coercive so as to cause a juror to abandon an honest conviction for reasons other than those based upon the trial or the arguments of other jurors.” McMillan v. State, 253 Ga. 520, 523 (4) (322 SE2d 278) (1984). We conclude that they were not.

In McMillan, the Supreme Court held that the trial court committed reversible error and coerced the jury by commenting on the evidence: “ T feel like there is enough evidence in this case for you to reach a verdict.’ ” 253 Ga. at 523. In Moore v. State, 222 Ga. 748, 753-754 (5) (152 SE2d 570) (1966), the Supreme Court disapproved the trial court’s request of the jury to “work toward reaching a speedy verdict in this case,” but held the trial court cured the error in recharge. In Sanders v. State, 162 Ga. App. 175 (290 SE2d 516) (1982), the trial court erred in instructing the jury, “ Tf you can’t figure the puzzle out, you’ll just have to stay in there until you do.’ ” Id. at 176. We concluded this statement was “tantamount to charging that even in the event of any conscientious and irreconcilable differences of opinion between the jurors, one or more jurors would be required to surrender his view in order to reach a verdict.” Id. at 177. The trial court in Sanders also told the jury “ ‘this was a simple case.’ ” Id. at 176. Thus, three general categories of comments by the trial court are considered coercive: commenting on the evidence, telling the jury that they must reach a verdict within a set time, or intimating to the jury that they will be confined until they reach a verdict.

Here, the trial judge not only did not comment on the evidence, but was careful to state to the jury that he would not comment on the evidence and did not want to know whether there was a majority in favor of conviction or acquittal. Nor did he command the jury to hurry and reach a verdict, but instead, he stated that they would be given ample time to do so. See Dean v. State, 205 Ga. App. 512 (422 SE2d 569) (1992) (statement that “we can’t stay much longer ... we can give you until 5:00 o’clock” held not error where trial judge also indicated jury could reconvene the following day).

Decided April 27, 1995.

McGee & McGee, Jim B. McGee, for appellant.

Richard E. Currie, District Attorney, Alexander J. Markowich, Assistant District Attorney, for appellee.

This court has also considered other aspects of a case, including other portions of the trial court’s instructions, which may attenuate or defuse any potentially harmful comment. Such considerations include whether there is only circumstantial evidence in the case, whether the defendant testified, and whether the trial court instructs the jury that the verdict is theirs to reach and expresses no opinion on the evidence. Under such circumstances even a comment by the trial court that there is enough evidence to reach a verdict is not unduly coercive. Concepcion v. State, 200 Ga. App. 358, 359-360 (1) (408 SE2d 130) (1991).

Here, the evidence was not purely circumstantial, and the defendant testified and denied the charges. While the trial court’s initial comment was probably ill-advised, any adverse effect was attenuated by the repeated cautions to the jury not to continue its deliberations and the charge given the jury on the following morning reiterating that the jurors were not to reach a verdict purely for the sake of acquiescence. See Evans v. State, 201 Ga. App. 20, 29 (9) (410 SE2d 146) (1991). Taken as a whole, the trial court’s instruction was not coercive.

2. In his remaining enumeration of error, Williams contends the trial court erred in failing to give his requested charge no. 11. This request, which Williams based upon OCGA § 17-8-71, was argumentative in that it sought to have the trial court speculate on an accused’s election to introduce no evidence. Moreover, the trial court accurately charged concerning the substance of OCGA §§ 17-8-71 and 24-9-20 (c). See Goolsby v. State, 211 Ga. App. 143, 145 (2) (438 SE2d 394) (1993). The trial court did not err in refusing to give Williams’ requested charge.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.

       The ultimate expression of the latter was the tradition at common law of confining the jury “without meat, drink, fire, or candle . . . till they are all unanimously agreed.” 3 William Blackstone, Commentaries *375.

       The request itself erroneously cites OCGA § 17-8-21.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A95A0728.
    HENRY COUNTY BOARD OF TAX ASSESSORS v. BUNN et al.
    (457 SE2d 256)
   Birdsong, Presiding Judge.

This is an appeal by the Henry County Board of Tax Assessors from the order of the trial court, sitting without a jury, determining and setting the fair market value of certain property of appellees Carey and Paulette Bunn for the 1992 tax digest.

This case involves the tax assessment on two parcels of property. In 1990 appellees brought suit regarding, inter alia, the 1990 tax valuation given these parcels. A settlement conference was held in 1991 and an accord was reached among the parties as to the value of these parcels. Accordingly, an order was entered setting valuation on the parcels for the 1990 tax year; this order was not appealed. There was no increase in the tax assessment of this property for 1991, but a substantial increase in the tax assessment occurred in 1992 resulting in this litigation. In 1993 the trial court entered an order in this case ruling that the final judgment entered in the previous litigation, concerning the value of the parcels for the 1990 tax year, is res judicata and would be controlling as to current value absent a showing by appellant of a subsequent substantial change affecting the value of the parcels. After hearing evidence, the trial court found “there has been no substantial change affecting the value of the subject property except that the total acreage of parcel number 153-01-061 has been reduced from 659.97 acres to 553.96 acres.” The court also found that “there was no evidence that the per acre valuation of the property established by court order for the 1990 tax year has changed.”

Appellant’s sole enumeration is that the trial court erred “by entering an order ruling that a final judgment of the court on a previous appeal concerning the value of the same property for a prior [1990] tax year would be res judicata as to value for subsequent years unless the Board of Tax Assessors could show a substantial change [effecting] the value of the property.” Held:

1. Appellant contends that the doctrine of res judicata (OCGA § 9-12-40) is not applicable in this instance, as both the cause of action and subject matter of each proceeding was different. The issue here presented is one of first impression for this court.

“A judgment for taxes does not differ from any other in respect to its conclusiveness. But judgment in a suit for taxes for one year is no bar to a suit for taxes for another year. The two suits are for distinct and separate causes of action, although the parties may be concluded in a suit for one year’s tax as to a right or question adjudicated by a former judgment respecting a tax of an earlier year.” (Footnotes omitted.) 72 AmJur2d, State and Local Taxation, § 880. Thus, in Ga. R. &c. Co. v. Wright, 124 Ga. 596, 597 (2) (53 SE 251), it was held that “the taxes for each year constitute a separate cause of action.” Cf. Clayton County &c. Assessors v. Lake Spivey Golf Club, 207 Ga. App. 693, 694 (1) (428 SE2d 687). The same cause of action is required for a prior judgment to be res judicata. See Lewis v. Price, 104 Ga. App. 473 (1) (122 SE2d 129) (identity of cause of action required). Accordingly, the doctrine of res judicata is not applicable in this case. Superior Pine &c. Co. v. Hawes, 119 Ga. App. 201, 202 (166 SE2d 620).

Decided April 27, 1995

Blount & Cash, Ernest D. Blount, Harrison & Harrison, Stephen P. Harrison, for appellant.

Crumbley & Crumbley, Wade M. Crumbley, Smith, Welch & Studdard, Benjamin W. Studdard III, Patrick D. Jaugstetter, for appellees.

2. The trial court expressly predicated its ruling on a finding of res judicata, which in this instance is an erroneous legal theory. Ordinarily, a judgment right for any reason must be affirmed, but where it is apparent that the court rests its judgment on reasons which are erroneous or upon an erroneous legal theory, it commits reversible error. Derbyshire v. United Builders Supplies, 194 Ga. App. 840, 843 (1) (392 SE2d 37), and cases therein cited; Williams v. Morrison Assurance Co., 138 Ga. App. 191, 193 (1) (225 SE2d 778). We do not here address whether the prior judgment could constitute an estoppel by judgment, or whether application of this doctrine to suits contesting the value of the same property in a different tax year would constitute a violation of state public policy.

Judgment reversed.

Johnson and Smith, JJ., concur.


author: Blackburn, Judge.

text:
    A95A0934.
    DASHER v. CITY OF VALDOSTA.
    (457 SE2d 259)
   Blackburn, Judge.

We granted Julian Dasher’s application for discretionary review to determine whether the superior court erred in affirming the award of the appellate division of the State Board of Workers’ Compensation.

Dasher was employed with the City of Valdosta (the City) as a landfill operator and foreman at one of the City’s landfills. On April 22, 1992, Dasher aggravated his pre-existing degenerative back condition when the tractor he had been driving ran into a ditch and he was forcibly thrown into its steering wheel. It is undisputed that this accident and Dasher’s back injury arose out of and in the course of his employment. Although Dasher experienced pain in his lower back which radiated into his left leg as a result of the accident, he continued to work and operate heavy equipment until April 24, 1992, the date of the scheduled closing of the landfill. Dasher’s position was eliminated as a result of the closing of the landfill and prior to the accident, he decided to retire rather than accept a comparable position at another landfill at a reduced salary. Since his retirement, Dasher has worked in his landscaping business performing the same type of work and operating the same type of equipment that he operated while employed with the City.

Following an administrative hearing, an administrative law judge (ALJ) denied Dasher’s claim for total disability benefits and assessed attorney fees but awarded him medical expenses for the treatment of his injury. The ALJ found that Dasher had not shown that he was unable to procure remunerative employment at a different occupation suitable to his impaired capacity and therefore had not shown that he was disabled as a result of the work-related injury. The ALJ further found that the City did not defend the claim and did not fail to comply with OCGA § 34-9-221 without reasonable grounds. Both the Board and the Superior Court of Lowndes County affirmed the decision of the ALJ. This appeal followed. In two separate enumerations of error, Dasher maintains that the superior court erred in affirming the Board’s denial of total disability benefits and denial of assessed attorney fees.

1. “The law is well established that a finding of fact by the full board, when supported by any evidence, is conclusive and binding upon the court, and neither the superior court nor the Court of Appeals has any authority to substitute itself as the fact finding body in lieu of the board.” (Punctuation omitted.) Watson v. Universal Ceramics, 209 Ga. App. 135, 137 (433 SE2d 104) (1993). “Regardless of what our findings would be if we were the factfinders, upon appeal, the evidence will be construed in a light most favorable to the party prevailing before the board, and every reasonable factual inference and presumption of validity of award should be indulged in by the reviewing court.” (Citations and punctuation omitted.) A & P Transp. v. Warren, 213 Ga. App. 60, 62 (443 SE2d 857) (1994).

In all claims for compensation under Georgia’s Workers’ Compensation Act, the employee must carry the burden of proof and show that he sustained a disabling injury arising out of and in the course of his employment entitling him to compensation. Scandrett v. Talmadge Farms, 174 Ga. App. 547 (1) (330 SE2d 772) (1985). An employee is entitled to total disability benefits under OCGA § 34-9-261 if the employee can show by a preponderance of credible evidence that he or she has experienced a “loss of earning capacity due to the injury and not due to the employee’s unwillingness to work or to economic conditions of unemployment.” (Punctuation omitted.) Id. at 549. “ ‘The incapacity is total so long as the injured employee, by reason of and on account of his injury, is unable to do any work of any character. . . .’ ” City of Augusta v. Rosier, 119 Ga. App. 192, 193 (1) (166 SE2d 378) (1969).

Decided April 27, 1995.

Reginald C. Wisenbaker, Gary M. Wisenbaker, for appellant.

Tillman, McTier, Coleman, Talley, Newbern & Kurrie, George T. Talley, Edward F. Preston, for appellee.

The evidence viewed in the light most favorable to the City, the prevailing party before the Board, shows that the April 22, 1992 injury did not render Dasher totally disabled. Dasher continued to operate heavy equipment after the work-related accident during his employment with the City and in his own landscaping business. Additionally, the medical evidence in the record shows that Dasher is partially disabled as a result of the April 22, 1992 accident but does not indicate that Dasher has been totally disabled since he voluntarily retired from working with the City. In fact, Dasher’s decision to retire was based primarily on the lower salary associated with the proffered position and the anticipated effect of the salary upon his entitlement to social security benefits. The evidence of record demonstrates Dasher’s ability to work in some capacity and refutes his assertion that he is totally disabled. Although the ALJ and the Board applied an incorrect legal theory and based its denial of benefits on Dasher’s failure to seek suitable remunerative employment relying on our decision in Employers Liability Assurance Co. v. Hollifield, 93 Ga. App. 51 (90 SE2d 681) (1955), which is applicable when an employee is seeking a change of condition, a judgment of the superior court should be affirmed if it is right for any reason. Dart Container Corp. v. Jones, 209 Ga. App. 331 (433 SE2d 417) (1993).

2. An employee is entitled to assessed attorney fees if the Board determines that a claim has been defended without reasonable grounds and if an employer unreasonably fails to comply with any provision of OCGA § 34-9-221. OCGA § 34-9-108. In light of the fact that Dasher has not shown that he is entitled to total disability benefits, and the City prevailed on its defense in this claim, it cannot be said that the City defended these administrative proceedings without reasonable grounds. City of Atlanta v. Spearman, 209 Ga. App. 644 (2) (434 SE2d 87) (1993). In addition, since Dasher has not shown that he is entitled to total disability benefits, the City did not violate OCGA § 34-9-221 in failing to commence these benefits earlier.

Judgment affirmed.

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


text:
    A95A0977.
    VILLENUEVE v. RICHBOURG et al.
    (457 SE2d 821)
   Blackburn, Judge.

We granted appellant Maria P. Villenueve’s application for discretionary appeal to review the trial court’s order denying Villenueve’s petition for custody of her minor child.

The parents of the minor child, Villenueve and appellee Christopher F. Allen, were divorced in 1984. The final judgment and decree of divorce awarded permanent custody of the child to the appellee, Mary S. Richbourg, the child’s paternal great grandmother, allowing Villenueve liberal visitation. Upon entering its final decree of divorce, the trial court found as fact that “[Villenueve and Allen] were married on May 19, 1982. A child, BRANDIN MICHELLE ALLEN, was born October 14, 1982. The child is now age 16 months. The parties separated April 12, 1983. Subject action was filed on September 19, 1983, with the divorce having been granted November 7, 1983, reserving all issues in regard to custody, support and property rights. The parties entered into an Agreement which was made the Temporary Order on October 18, 1983, providing for joint custody of the child pending final disposition. The plaintiff [Allen] is 18 years old, a student at Savannah Vo-Tech studying in the computer sciences field. The defendant [Villenueve] is age 19 years, employed as a floor supervisor at a ladies clothing store. The parties, through counsel, have waived all other findings of fact and conclusions of law.” (Emphasis supplied.)

1. Villenueve contends that the trial court erred in denying her petition for change of custody brought by a parent against a non-parent and in failing to require the non-parent to bear the burden of proof where there had never been a finding of unfitness of the parent.

“In every case involving a custody dispute between a parent and a third party, the trial court must first make a determination as to whether the parent has lost his or her right pursuant to OCGA § 19-7-4, or is unfit pursuant to Georgia case law. Carvalho v. Lewis, 247 Ga. 94 (274 SE2d 471) (1981); Brooks v. Carson, 194 Ga. App. 365, 368 (2) (390 SE2d 859) (1990).” Martini v. Jefferson, 213 Ga. App. 666 (445 SE2d 814) (1994). In this regard, as between a parent and a third party, “the parent is entitled to custody of the child unless the third party shows by ‘clear and convincing evidence’ that the parent is unfit or otherwise not entitled to custody. . . . Additionally, evidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in his natural child; clear and convincing evidence of present unfitness is required.” Blackburn v. Blackburn, 249 Ga. 689, 692 (292 SE2d 821) (1982). The roles of the parent and the third party reverse, however, upon the award of permanent custody to the third party in consequence of a court proceeding, and, as a result, the parent’s prima facie right to custody is lost to the third party. Durden v. Barron, 249 Ga. 686 (290 SE2d 923) (1982). See also Parton v. Haviland, 212 Ga. App. 835, 837 (442 SE2d 806) (1994) (Durden applicable “only to a permanent award which was made upon an evidentiary hearing with specific findings as required by Blackburn, supra”).

There is here no issue as to whether the trial court by its finhl judgment and decree of divorce awarded permanent custody of the minor child to Richbourg. We therefore need only determine whether the Blackburn requirement for a finding of unfitness, as above, may be waived.

It is undisputed in the record that the trial court’s 1984 final judgment and decree concerning custody, child support and division of property made no determination as to Villenueve’s fitness as a parent in awarding Richbourg permanent custody of the minor child in the case sub judice, as such a finding was waived by the parties while represented by counsel. However, but for facts and circumstances adequate to support a finding of parental unfitness, the trial court could not have awarded permanent custody to third party Richbourg. Jefferson, supra. Villenueve did not appeal. Under these circumstances, she cannot be heard to complain for denial of due process, as the requirement for the Blackburn finding of unfitness was waived from the outset and is res judicata as to the then existent facts. Young v. Pearce, 212 Ga. 722 (95 SE2d 671) (1956).

2. Villenueve also enumerates that the trial court erred in applying the standard of a material change of circumstances substantially affecting the welfare of the minor child where there has never been a finding of unfitness of the parent. Appellant further contends that the weight of the evidence and the best interest of the child require the return of custody to the mother. We disagree.

Where, as here, the roles of the parent and the third party custodial parent have reversed, conferring the prima facie right to custody upon the third party, “[t]he parent can regain custody upon showing by clear and convincing evidence his or her present fitness as a parent and that it is in the best interest of the child that custody be changed.” Durden, supra. The uncontroverted evidence in this case is that Richbourg has cared for the minor child since infancy; that the minor child is well provided for in a stable environment; and that the minor child is currently enrolled in the gifted academic program at school and is without behavioral problems. Richbourg, age 77, is in good health, drives, gets the minor child to medical and dental appointments, cleans the household, is otherwise able to care for the needs of the child, and enjoys the support of the child’s father, Allen, and the child’s paternal grandmother, Judy Allen Milford, both of whom live in the Savannah area in the vicinity of Richbourg.

Decided April 27, 1995.

Linda J. Carter, Cletus W. Bergen II, for appellant.

Jones, Boykin & Associates, Harold J. Cronk, for appellees.

The evidence offered by Villenueve indicates that she has matured and is better able to care for the child than when custody was originally awarded. In this regard, Villenueve has obtained an associate degree in nursing since the time of the divorce. She is currently employed as a nurse, has been married for three and a half years, and owns a home. Additionally, Villenueve’s husband has covered the minor child under the major hospitalization policy provided by his employer. These facts do not establish a change in conditions materially affecting the best interest and welfare of the child, nor do they necessarily establish that the best interest of the child requires a change in custody. Durden, supra. The discretion of the trial court will not be disturbed absent a manifest abuse which is not present here. See also Pearce, supra. Accordingly, this enumeration of error is likewise without merit.

Judgment affirmed.

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

       In denying the instant petition for change of custody the trial court found as fact that “[o]n March 5, 1984, upon evidence sufficient to support the court’s decision in placing custody of the minor child in a third party, this Court entered an Order awarding custody of the minor child, Brandin Michelle Allen, to Defendant Marie (sic) Richbourg, the child’s maternal (sic) great-grandmother.”

       Although the 1984 divorce decree did not require Allen to pay support for the minor child, he has continuously provided Richbourg “odd-jobs” support and paid for the child’s special needs; summer camp, spending money, etc. Milford visits Richbourg once or twice a week and sold Richbourg’s residence to her.


author: McMurray, Presiding Judge.

text:
    A95A0263.
    In the Interest of M. J. T. et al., children.
    (457 SE2d 265)
   McMurray, Presiding Judge.

The Georgia Department of Human Resources acting through the Rockdale County Department of Family & Children Services petitioned the Juvenile Court of Rockdale County to terminate the parental rights of the mother of M. J. T. and of A. T., ages five and three at the time of the filing of the petition. After an evidentiary hearing the juvenile court entered an order finding proper jurisdiction of the parties, parental misconduct or inability authorizing a termination of parental rights, and that it is in the best interest of the children to terminate the parental rights of the mother. The juvenile court also found that the mother’s history of unrehabilitated drug abuse rendered her incapable of providing for the physical, mental, and emotional needs of the children. There were further findings that the mother has failed to provide support as provided by law and court order, and that she has failed to follow a court ordered plan designed to reunite her with her children. Based on these findings the juvenile court entered its judgment ordering the termination of the mother’s parental rights to each of these two children. The mother appeals the judgment of the juvenile court, raising as her sole enumeration of error the sufficiency of the evidence to authorize the termination of her parental rights in the two children. Held:

The evidence shows that the children came under the custody of the department in January 1993, based upon a finding that the children were deprived. Although there are references in the evidence and in the juvenile court’s termination order to an abandonment of the children at that time, this reference is apparently not to the criteria stated in OCGA § 15-11-81 (b) (3), but to one of the findings upon which the original conclusion for deprivation was predicated, that the mother had left the children with a relative for a period in excess of two weeks without making any provision for support of the children.

Thereafter, the department developed a succession of court ordered case plans designed to reunify the mother with these children. The common elements of these plans included a requirement that the mother remain drug free, submit to random drug screens, improve her parenting abilities, enter counseling, and obtain appropriate housing. Ample evidence was submitted that the mother failed to substantially comply with any of these requirements for a period greater than one year. See OCGA § 15-11-81 (b) (4) (C) and In the Interest of B. L., 196 Ga. App. 807, 808 (1) (397 SE2d 156). Also, the mother failed to make significant payments of court ordered child support. The only random drug test to which the mother submitted was positive, although a later non-random drug screen scheduled by the mother was negative.

The mother argues that she did not abandon the children as evidenced by the contacts between herself and the department. She also correctly noted that there was no finding that the failure to pay child support was wilful and wanton, albeit evidence of the mother’s lack of employment does not support a hypothesis that she is prepared to provide support to the children. The mother argues that her failure to avail herself of visitation is related to case plan provisions requiring a negative drug screen as a prerequisite to visitation, but this contention is not supported by the transcript or record. Additionally, the mother has argued that the department’s evaluations of her home were unnecessarily critical.

Decided May 1, 1995.

Joseph F. Bertollo, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Teresa E. Lazzaroni, Assistant Attorney General, Burkett, Schneider & Mumford, Robert F. Mumford, for appellee.

We hold that the juvenile court as a rational trier of fact was authorized to determine that the evidence provided clear and convincing proof that the biological mother’s parental rights had been lost. In the Interest of C. D. P., 211 Ga. App. 42, 43 (3) (438 SE2d 155). Furthermore, the evidence of past conduct strongly suggests that the deprivation would likely continue if the children were ever returned to the mother. In the Interest of J. M. C., 201 Ga. App. 173, 174 (410 SE2d 368). As continued deprivation will likely be damaging to the well being of the children, we find that the juvenile court did not abuse its discretion in terminating the biological mother’s parental rights as to M. J. T. and as to A. T. In the Interest of M. R., 213 Ga. App. 460, 465 (1) (444 SE2d 866); In the Interest of A. L. L., 211 Ga. App. 767, 770 (440 SE2d 517); In re G. M. N. & D. M. N., 183 Ga. App. 458, 461 (1) (359 SE2d 217). Compare In the Interest of T. R. L., 162 Ga. App. 659, 660 (292 SE2d 518).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


author: Andrews, Judge.

text:
    A95A0629.
    THE STATE v. GRANT.
    (457 SE2d 263)
   Andrews, Judge.

In Grant v. State, 212 Ga. App. 565 (442 SE2d 898) (1994), we reversed Grant’s conviction and granted him a new trial on the basis that the trial court erroneously denied his motion for a continuance of the trial because of the absence of a material witness. It is undisputed that, prior to the trial, Grant filed a timely demand for trial pursuant to OCGA § 17-7-170 requiring that the State try him within the two term limit of that statute, and that the original trial was held within the two term limit. After reversal of the conviction on appeal, the remittitur from this court was filed by the clerk of the trial court on April 18, 1994, during the April term of the trial court. Grant was not re-tried during the April term or during the following June term of the trial court. On October 27, 1994, more than two terms after the remittitur was filed, the trial court entered an order discharging and acquitting Grant of the charged offense because the State failed to retry him within the two term limit of OCGA § 17-7-170. The State appeals from the order of discharge and acquittal.

Having filed a timely demand for trial prior to the trial resulting in his conviction, Grant was not required to file a new demand for trial after his conviction was reversed on appeal. Ramirez v. State, 196 Ga. App. 11, 12 (395 SE2d 315) (1990). In order to comply with the original demand for trial, the State was required to re-try Grant during the remainder of the term of the trial court in which the remittitur was filed, or during the following term of the trial court, provided there were juries impaneled and qualified to try the defendant. Henry v. State, 264 Ga. 527 (449 SE2d 79) (1994); McIver v. State, 212 Ga. App. 670 (442 SE2d 855) (1994); Ramirez, supra at 12; see Butler v. State, 207 Ga. App. 824, 825 (429 SE2d 280) (1993).

It is undisputed that, during the April term after the remittitur was filed and during the following June term, Grant was available for trial and juries were impaneled and qualified to try him. Nevertheless, the State claims that Grant waived his right to automatic discharge and acquittal for failure of the State to re-try him within the two term limit of OCGA § 17-7-170 because he took affirmative action which resulted in the failure of the case to be re-tried within two terms after the remittitur was filed. “ ‘The defendant may waive his right to such automatic discharge by some action on his part or on the part of his counsel. Any affirmative action of the defendant which results in a continuance of the case, or a failure to try it within the time fixed by the statute after the filing of a demand, has the effect of tolling the time. ... A waiver of the demand would result from a continuance granted on the motion of the accused, or from any other act on his part showing affirmatively that he consented to passing the case until a subsequent term.” (Citations and punctuation omitted; emphasis in original.) State v. Waters, 170 Ga. App. 505, 508 (317 SE2d 614) (1984). The State has the burden of showing that the defendant or his counsel took such affirmative action resulting in a waiver of the requirements of OCGA § 17-7-170. Birts v. State, 192 Ga. App. 476, 477 (385 SE2d 120) (1989).’ ” Ballew v. State, 211 Ga. App. 672, 673 (440 SE2d 76) (1994).

Prior to Grant’s original trial, he moved for a continuance of the trial because of the absence of a material witness. The trial court denied the motion, and the case proceeded to trial resulting in Grant’s conviction. Grant appealed to this court, and we reversed the conviction and gave Grant the right to a new trial on the basis that the trial court erred by denying the motion for a continuance. The State contends that, by making the motion for the continuance and, after conviction, appealing and obtaining a reversal on the basis that the motion should have been granted, Grant, in effect, sought and obtained a continuance of his case and waived his demand for trial.

Decided May 1, 1995.

Douglas C. Pullen, District Attorney, Mark C. Post, Assistant District Attorney, for appellant.

Robert L. Wadkins, for appellee.

The record does not support the State’s contentions. Although Grant sought a continuance of the case prior to the original trial, his motion was denied and the case was tried within the two term limit of OCGA § 17-7-170. During Grant’s appeal, the time requirements of OCGA § 17-7-170 were tolled while this court retained appellate jurisdiction of the case. Henry, supra at 530. After we reversed the conviction and gave Grant the right to a new trial, the two term limit of OCGA § 17-7-170 began to run again in its entirety commencing with the term in which the remittitur was filed in the trial court. Id. at 531; McIver, supra at 671. Although we upheld Grant’s claim on appeal that the trial court erred by denying his motion for a continuance of the original trial, Grant’s appeal and our holding that he was entitled to obtain the presence of the witness is not alone sufficient to show that Grant took affirmative action resulting in a delay of the re-trial beyond the statutory limit. After the remittitur was filed, there is nothing in the record showing that the re-trial was delayed because of Grant’s original motion for a continuance, or because of the continuing absence of the witness the subject of the motion, or because of any other affirmative action taken by Grant or his attorney. We cannot infer from a silent record that Grant or his attorney took affirmative action by which Grant caused or consented to a delay of the retrial to a subsequent term. Ballew, supra at 674. Since the State failed to carry its burden of proof, Grant was entitled to be discharged and acquitted of the offense charged in the indictment.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


text:
    A95A0445, A95A0446, A95A0447, A95A0448, A95A0449, A95A0450.
    CHATHAM COUNTY BOARD OF TAX ASSESSORS v. SOUTHSIDE COMMUNITIES FIRE PROTECTION, INC. (six cases).
    (457 SE2d 267)
   Andrews, Judge.

These cases involve six parcels of land, which are owned by Southside Communities Fire Protection, Inc. (“Southside”). The facts and the legal issues involved in the cases are identical. In its sole enumeration in each case, the Chatham County Board of Tax Assessors (“the Board”) contends that the trial court erred in concluding after a bench trial that Southside is a purely public charity pursuant to OCGA § 48-5-41 (a) (4) and, therefore, exempt from ad valorem taxation for the tax year 1992.

Prior to the bench trial, the parties stipulated to most of the relevant facts and in an excellent 17-page order, the Chatham County court recited the following essentially undisputed facts. Southside performs fire fighting and rescue services in large portions of Chat-ham County in which the county government itself provides no fire protection. Southside is the only protection for the unincorporated areas of the county, except for the Isle of Hope. Although Savannah has a paid professional fire department, it contracts with Southside to provide fire protection to southern portions of the city. Chatham County granted Southside exclusive rights to service these districts. Southside and other fire departments within the county have also agreed to reinforce each other as needed in the event of major emergencies. Southside responds only to calls within its designated fire district, unless it receives a call for mutual assistance from another fire department.

Southside is a non-profit, tax-exempt 501 (c) (4) corporation which is afforded tax-exempt status by the Internal Revenue Service. Southside derives no profits, nor does it distribute any income pursuant to its non-profit status. Southside uses its receipts only to pay expenses. Southside issues no shares of stock, pays no dividends, makes no profit, and accumulates no retained earnings or endowment. It has a board of directors whose members receive no compensation for their services and are elected by the subscribers; its labor force consists primarily of volunteer firefighters who receive no pay for their time and skills. In 1991 and 1992, Southside had 48 paid employees and 150 volunteers.

In addition to fire fighting, Southside provides rescue services within its area of responsibility. According to the stipulation, South-side “participates in wash downs, operates the ‘jaws of life’ and provides miscellaneous police assistance, within its designated fire districts; operates a first responders unit in the Skidaway Island area with a defibrillator and trained state certified first responders; and, provides fire prevention classes to various organizations; and, does not bill Chatham County for any of these services.” Southside also performs planning and prevention tasks such as inspections, fire suppression planning, response coordination, and fire prevention education. Volunteers and paid employees give talks and classes to community groups.

The parties stipulated that the property at issue is used exclusively for the provision of fire protection and rescue services within its designated fire districts.

Southside utilizes a subscription service offered to all persons and entities within its designated fire districts to cover the expenses of providing the services. Southside’s annual subscription fees are based on the values of the properties to be provided such services. If South-side provides a service to a non-subscriber, the non-subscriber is billed for the cost of the service. City of Savannah residents pay for their fire protection services through payment of property and sales taxes. Southside has, on occasion, filed suit to collect the bill from a non-subscriber.

Southside responds to all fires, regardless of subscription status. The court’s order noted that more than ten years ago Southside’s policy “may have been” not to fight fires on the property of non-subscribers. Nevertheless, the court found that Southside’s policy of responding to all fires is not advertised in the correspondence it sends to non-subscribers in the unincorporated areas of the county. The court noted that this correspondence implies that fire protection will be available only if an application is completed and the fee paid. The court also found that Southside does not advertise that its policy is to give a reduced rate or to waive the fee altogether for indigents, although it does enroll subscribers without a fee when informed of financial problems.

Southside’s policy with respect to apartment complexes, shopping centers, and trailer parks is that the owners are requested to pay for the entire complex, instead of individuals purchasing a subscription. Southside requires that if a trailer park owner buys protection, it must be for the entire trailer park complex; the individual trailer owners are not allowed to purchase coverage separately.

On or about April 16, 1992, the Board removed the tax-exempt status of properties owned by Southside. Southside appealed the Board’s decision to the Chatham County Board of Equalization, which reversed that decision and held that the properties were exempt. The Board appealed this decision to the superior court, and the six cases were consolidated.

After conducting its bench trial, the trial court ruled that South-side was entitled to tax-exempt status as a purely public charity pursuant to OCGA § 48-5-41 (a) (4). Here, the Board argues that South-side does not qualify as an institution of purely public charity and that the test set forth in York Rite Bodies of Freemasonry &c. v. Bd. of Equalization &c., 261 Ga. 558 (408 SE2d 699) (1991), was not met. The Board contends that tax exemptions are to be strictly construed and that Southside has failed to meet the burden of proving the exemption.

In York Rite, supra at 558, our Supreme Court stated: “[i]n determining whether property qualifies as an institution of ‘purely public charity’ as set forth in OCGA § 48-5-41 (a) (4), three factors must be considered and must coexist. First, the owner must be an institution devoted entirely to charitable pursuits; second, the charitable pursuits of the owner must be for the benefit of the public; and third, the use of the property must be exclusively devoted to those charitable pursuits.”

The Board first contends that Southside does not qualify for the exemption under the first prong of the York Rite test, in that it is not an institution devoted entirely to charitable pursuits. “In determining whether the owner is an institution devoted entirely to charitable pursuits, it must be remembered that the mere facts that the owner is a non-profit institution, that its charter declares it to be a charitable institution, and that the institution serves a benevolent purpose do not necessarily lead to the conclusion that the institution is exempted from ad valorem taxation by OCGA § 48-5-41 (a) (4). [Cits.] While all of those should be considered, no one of them will be conclusive. Instead, the facts of each case must be viewed as a whole and all of the circumstances surrounding the institution must be considered. [Cits.]” York Rite, supra at 558-559.

The Board cites numerous financial facts regarding Southside which it contends establish that Southside is simply a business which performs fire fighting services, rather than a charitable institution. The Board notes that the contract and subscription fees which South-side collected during 1991 totaled over $2,000,000; that Southside accumulated significant interest over the period in question; and that property which Southside owned appreciated during the year. The Board argues that a large portion of Southside’s income goes to compensating its employees and instructing volunteer fire fighters, and that Southside uses its remaining income to buy land, buildings, and equipment and to stockpile cash assets.

Additionally, the Board argues that although Southside has a professed policy of providing reduced rates for those who are unable to pay, this policy is not advertised to potential subscribers. It contends that Southside’s policy of responding to all fires is not advertised and that the Southside mailings imply that fire protection will be available only to subscribers.

The Board’s arguments break down into two major components: that the manner in which Southside bills its subscribers and the manner in which it manages its assets establish that it is not devoted entirely to charitable pursuits. With respect to the first issue, the fact that Southside charges a fee for subscribers is not dispositive. See generally Tharpe &c. v. Central Ga. Council of Boy Scouts &c., 185 Ga. 810 (196 SE 762) (1938); Central Bd. on Care of Jewish Aged v. Henson, 120 Ga. App. 627 (1) (171 SE2d 747) (1969); Peachtree on Peachtree Inn v. Camp, 120 Ga. App. 403 (170 SE2d 709) (1969). Here, the evidence established that the fees Southside charged were used to offset expenses and that subscribers were billed according to their ability to pay. The evidence also showed that Southside provided its services to all in need of assistance, not, just to subscribers. Compare Gwinnett County Bd. of Tax Assessors v. Ga. School Bd. Assn., 211 Ga. App. 437 (439 SE2d 666) (1993); Ga. Congress of Parents & Teachers v. Boynton, 239 Ga. 472 (238 SE2d 113) (1977). Southside had no retained earnings, no dividends, no distribution of profits to members, no endowment, and the evidence showed that the salaries it paid were comparable to those paid to other fire fighters. We agree with the trial court’s conclusion that the manner in which the fees were collected supported Southside’s claim that it was a “purely public charity.”

Moreover, the manner in which Southside uses its property also showed it to be devoted entirely to charitable pursuits. The evidence showed that Southside used its property to produce money, but that the resulting money was used solely to offset expenses. There is no evidence that Southside used the money it accumulated to benefit a small group; instead, the evidence showed that the money generated went to benefiting the general public. Accordingly, we find that Southside met the first prong of the York Rite test.

The Board also argues that Southside fails under the second prong of the York Rite test in that its charitable pursuits are not for the benefit of the public. First, “[a] familiar meaning of the word ‘charity’ is almsgiving, but as used in the law it may include ‘substantially any scheme or effort to better the condition of society or any considerable part of it.’ Charity, as used in tax exemption statutes, is not restricted to the relief of the sick or indigent, but extends to other forms of philanthropy or public beneficence, such as practical enterprises for the good of humanity, operated at moderate cost to the beneficiaries, or enterprises operated for the general improvement and happiness of mankind.” (Citations and punctuation omitted.) Tharpe, supra at 813-814.

Contrary to the Board’s contentions, we find that Southside’s services were for the benefit of the public. See generally Peachtree on Peachtree Inn, supra. It is undisputed that Southside provides fire protection and rescue services to all of the public within its region, regardless of the subscription status of the property owner. Moreover, Southside does not turn away subscribers due to their inability to pay the subscription fee. Although the court concluded that Southside’s reduced rate policy and non-discriminatory response policy was not advertised in its correspondence, this fact does not alter the fact that Southside performs its charitable service for the benefit of the public. Southside’s policy with regard to subscribers who are located in trailer parks and shopping centers does not alter this conclusion. Moreover, the evidence supported the trial court’s conclusion that the organization operated for the benefit of the public and not for the benefit of its employees.

Decided May 2, 1995

Brennan, Harris & Rominger, Julie D. Majer, for appellant.

Thompson & Associates, Robert T. Thompson, Jr., Robert P. Manning, for appellee.

The Board argues that the third prong of the York Rite test is not met and that Southside’s property is not exclusively devoted to charitable pursuits. The parties stipulated that the property is exclusively devoted to the provision of fire protection and rescue services. Given the facts of this case, we conclude, as did the trial court, that this prong of the York Rite test is met. The Board also argues the court erred in finding that fire fighting was a charitable pursuit, as a matter of law. Again, given the specific facts before us, we find that Southside operated as a “purely public charity” and the Board’s argument is misplaced.

Viewing the facts of this case as a whole, we find proper the trial court’s conclusion that the Southside properties were exempt from ad valorem taxation.

Judgments affirmed in Case Nos. A95A0445, A95A0446, A95A0447, A95A0448, A95A0449, and A95A0450.

McMurray, P. J., and Blackburn, J., concur.


text:
    A95A0991.
    KELLY v. CITY OF ATLANTA et al.
    (457 SE2d 675)
   Birdsong, Presiding Judge.

Appellant Joseph L. Kelly appeals from the dismissal of his petition for declaratory judgment seeking to enjoin appellee City of Atlanta et al. from imposing alleged illegal property taxes for school purposes upon the taxpayers of the City of Atlanta. This appeal was transferred to this court by the Supreme Court of Georgia, which determined the trial court had made no ruling as to the constitutional issue being asserted by appellant.

On July 1, 1994, appellant/plaintiff filed a petition for declaratory judgment on behalf of himself and all other persons owning taxable tangible property within the city limits of Atlanta. Named as defendants were the City of Atlanta, the Atlanta School District, members of the Atlanta Board of Education in their official capacities, and the Tax Commissioner of Fulton County in her official capacity. The two-count petition averred that the Revenue Sharing Agreement between the City of Atlanta and Fulton County, which allocated the proceeds of a local option sales tax according to a stated percentage for each governmental entity, was void and that the School District’s collection of ad valorem taxes in excess of 20 mills violated the Constitution of Georgia of 1983. The petition sought a declaratory judgment consistent with the foregoing, a permanent injunction as to collection and distribution of the averred illegal taxes, and an interlocutory injunction impounding tax amounts collected in excess of 20 mills. By the time a hearing was held as to this matter, substantially all of the collectible ad valorem taxes due in the City of Atlanta (88 percent of a projected collectible total of 91 percent) had been levied, collected and disbursed. The trial court denied the petition for declaratory judgment on the grounds, inter alia, that under the attendant circumstances there existed no present, concrete controversy subject to disposition by declaratory action, and that as the taxes appellant seeks to enjoin appellees/defendants from collecting are no longer under their control, appellant is limited to the post-deprivation remedies of the tax refund statute, OCGA § 48-5-380. Held:

1. The Supreme Court’s refusal to review appellant’s constitutional challenge mandates the finding that his contentions of error on constitutional grounds are without merit. Johnston v. Atlanta Humane Society, 173 Ga. App. 416, 418 (326 SE2d 585). Moreover, constitutional challenges lie within the exclusive jurisdiction of the Supreme Court. Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (1). Further, the transfer of this appeal to this court by the Supreme Court is also tantamount to a ruling eliminating and resolving the equitable and injunctive issues which lie only within the jurisdiction of that court to determine. Ryles v. First Oglethorpe Co., 213 Ga. App. 327, 330 (2) (444 SE2d 578).

2. Appellant asserts the trial court erred in dismissing the petition for declaratory judgment, based on the availability of a refund remedy under OCGA § 48-5-380, and erred in dismissing the action because no interlocutory relief was granted prior to collection of the alleged illegal taxes for the year in which the petition was filed. We find these enumerations to be without merit.

The levied taxes at issue in this case had been substantially collected and disbursed. “Georgia statutes make declaratory judgment relief available prior to payment of disputed taxes ‘to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.’ ” (Emphasis supplied.) James B. Beam Distilling Co. v. State of Ga., 263 Ga. 609, 613 (5) (437 SE2d 782). Once deprivation of property has occurred through payment of a substantial amount of the disputed taxes, declaratory judgment no longer is available, as at that point the rights of the parties have already accrued. A petition for declaratory judgment will not lie “ ‘where all rights of the parties have already accrued and where no facts or circumstances are alleged showing a necessity for adjudication in order to relieve the plaintiff from the risk of taking future undirected action, which, without such action, would jeopardize the plaintiff’s interest.’ ” Ridgeview Institute v. Brunson, 191 Ga. App. 608, 610 (382 SE2d 409); compare Sentry Ins. v. Majeed, 194 Ga. App. 276, 278 (2) (390 SE2d 269) (rights under policy had accrued), aff’d 260 Ga. 203 (391 SE2d 649). Moreover, OCGA § 48-5-380 provides a clear and adequate refund remedy for appellant. In Vann v. DeKalb County Bd. of Tax Assessors, 186 Ga. App. 208, 210-211 (367 SE2d 43), it was held: “If a remedy at law is plain and adequate, that is, as practical and as efficient to the ends of justice and its prompt administration as the remedy in equity, it will exclude appropriate equity relief. . . . Further, in addition to barring injunctive relief, this rule bars the issuance of a declaratory judgment or mandamus.” Accord Arnold v. Gwinnett County Bd. of Tax Assessors, 207 Ga. App. 759 (429 SE2d 146).

Additionally, in Brown v. Wright, 231 Ga. 686, 688 (203 SE2d 487) the court held that it was too late to wait until midyear to enjoin an appropriation substantially disbursed and concluded that “[e]ven though some collections remain to be made and a small percentage of State funds remains to be paid out, the issues raised by this case as to [the challenged disbursements] are moot.” In Acree v. Walls, 240 Ga. 778, 787 (2) (243 SE2d 489), it was held that “the denial of injunctive relief now presents a moot question” where the taxes had already been collected on a temporary basis, the revenue commissioner had already approved the tax list, and no supersedeas was obtained from the orders of the trial court refusing to enjoin such action. Accordingly, as a general rule, a suit for injunctive relief regarding the collection of alleged illegal taxes should not be entertained by the courts if the taxes at issue have been substantially collected and disbursed.

Reich v. Collins, 263 Ga. 602 (437 SE2d 320), rev’d Reich v. Collins, 513 U. S. _ (115 SC 547, 130 LE2d 454) appears to be distinguishable and not controlling in this case. Appellant’s contentions in support of his enumerations of error are without merit.

Decided May 2, 1995.

Proctor & Associates, Robert J. Proctor, for appellant.

Joseph L. .Kelly, pro se.

John R. Myer, W. Roy Mays III, Joe M. Harris, Jr., Holland & Knight, Joseph D. Young, Amy M. Totenberg, for appellees.

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A95A0516.
    TURNER v. WRIGHT et al.
    (457 SE2d 575)
   Blackburn, Judge.

Jeffrey Scott Turner, an unwed father, appeals the trial court’s determination that he abandoned his opportunity interest in his child and was unfit to be a parent. Turner filed the underlying petition for legitimation within one month after the child was born. The child’s mother, Melanie Wright, and the prospective adoptive parents filed objections to such petition. We granted Turner’s application for discretionary appeal to determine the impact of his incarceration for the entire life of the child on his petition for legitimation.

1. In In re Baby Girl Eason, 257 Ga. 292, 297 (358 SE2d 459) (1987), the Georgia Supreme Court held that unwed fathers possessed an opportunity interest to develop a relationship with their children which was protected by due process of law. “This opportunity interest begins at conception and endures probably throughout the minority of the child. But it is not indestructible. It may be lost. ... It is, then, an interest which can be abandoned by the unwed father if not timely pursued. On the other hand it is an interest which an unwed father has a right to pursue through his commitment to becoming a father in a true relational sense as well as in a biological sense. Absent abandonment of his interest, a state may not deny a biological father a reasonable opportunity to establish a relationship with his child.” Id. at 296.

The abandonment of an unwed father’s opportunity interest discussed by the Supreme Court in Eason, is not governed by the abandonment of the child contemplated in OCGA § 19-8-6 (a). “ ‘The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child’s development.’ [Cit.]” Eason, supra at 296.

The Supreme Court, in Eason, found that the opportunity interest began at conception. In the present case, after Turner was aware he was to be a father, he voluntarily committed criminal acts for which he is presently incarcerated. Turner’s disregard of his opportunity interest during Wright’s pregnancy is as significant as such a disregard after the child is born. See In re Adoption of Baby E. A. W., 647 S2d 918 (Fla. App. 1994) (court found biological father effectively abandoned his child by his treatment of the mother during pregnancy).

Turner maintains that due to his incarceration shortly after the child was conceived he has been unable to pursue his commitment to becoming a father in any other way than filing his petition for legitimation. He readily admits that he provided no support for the child or for Wright while she was pregnant, but he claims that due to his incarceration, he had no money. He has had no personal or written contact with the child. Although Turner “has a constitutionally protected interest which cannot be denied him through state action,” (Eason, supra at 297) his inability to pursue his commitment to establish a familial relationship with the child is not the result of state action, but the result of his own criminal actions.

Significantly, after Turner learned he was to become a father, he committed at least one violation of the Georgia Controlled Substances Act. Turner learned that Wright was pregnant with his child in November 1991. An indictment brought thereafter charged that on or about December 17, 1991, Turner committed two felony violations of the Georgia Controlled Substances Act, including the sale of marijuana and felony possession of marijuana, and the offense of fleeing and attempting to elude an officer. With respect to that indictment, Turner later pled guilty to felony possession of marijuana and the other charges were not prosecuted. His present incarceration began in December 1991. While incarcerated for possession of marijuana, on September 29, 1992, Turner pled guilty to felony theft by receiving stolen property, a crime which occurred on or about October 23, 1991. Turner was sentenced thereon to three years to serve in prison.

Georgia law is well settled that Turner cannot object to the natural consequences brought about by his own voluntary commission of criminal acts. Chandler v. Cochran, 247 Ga. 184, 187 (275 SE2d 23) (1981). Under the present facts, the trial court did not err in finding that Turner had abandoned his opportunity interest to develop a relationship with his child. Although, under Eason, the determination that Turner abandoned his interest was sufficient to end its inquiry, the trial court also found that Turner was an unfit parent.

2. The Supreme Court in Eason, held that if the unwed father “has not abandoned his opportunity interest, the standard which must be used to determine his right to legitimate the child is his fitness as a parent to have custody of the child.” Id. at 297. “In such a case, the parent is entitled to custody of the child unless the third party shows by ‘clear and convincing evidence’ that the parent is unfit. .. . Additionally, evidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in his natural child; clear and convincing evidence of present unfitness is required.” Blackburn v. Blackburn, 249 Ga. 689, 692 (292 SE2d 821) (1982). See also Doe v. Chambers, 188 Ga. App. 879 (374 SE2d 758) (1988).

“The appropriate standard of appellate review in a case where a parent’s rights to [his] child have been severed is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. The factfinding and weighing of evidence is to be done in the trial court under the clear and convincing evidence test. The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review is not met.” (Punctuation omitted.) In the Interest of J. D. D., 215 Ga. App. 68, 69 (449 SE2d 655) (1994).

A parent’s felony conviction and imprisonment which has a demonstrable negative effect on the quality of the parent-child relationship and a parent’s use or history of abuse of intoxicating liquors or drugs are among the factors that a trial court can consider in determining parental misconduct or inability to care for the child. OCGA § 15-11-81 (b) (4) (B). In the present case, the criminal behavior of Turner, presently age 28, began as a juvenile and includes the use of LSD, cocaine and marijuana, the commission of burglary, forgery, theft, interference with custody, probation violation, and a lengthy driving record including a habitual violator conviction for DUI. Turner has spent most of the last 11 years either on probation, on parole, or in jail or prison.

“Although imprisonment alone does not always compel a termination of parental rights, it will support such a ruling when adequate aggravating circumstances are shown to exist.” (Citations and punctuation omitted.) In the Interest of L. F., 203 Ga. App. 522 (417 SE2d 344) (1992). Turner’s present incarceration and his past record showing his inability to maintain a job and avoid criminal conduct supports the trial court’s finding of unfitness. Such a finding is also supported by Turner’s denial of an alcohol or drug problem despite evidence of such, and his failure to complete the recommended courses for dealing with such problems.

3. Turner’s remaining enumerations of error are sufficiently addressed above and are also without merit.

Judgment affirmed.

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

Decided April 19, 1995

Legitimation. Fayette Superior Court. Before Judge Miller.

Jeffrey S. Turner, pro se.

Tarey B. Schell, Murphy & Sams, W. Fletcher Sams, for appellees.


text:
    A95A1044.
    FLEET FINANCE v. COUNTRYSIDE ESTATES, INC.
    (457 SE2d 246)
   Blackburn, Judge.

Fleet Finance, Inc. (Fleet) appeals the trial court’s grant of Countryside Estates, Inc. f/k/a Exchange South, Inc.’s (Countryside) motion for partial summary judgment. Countryside brought the underlying action to recover under certain partial purchase agreements entered into between the parties.

Countryside developed, sold, and financed residential lots in Heard County, Georgia. Some of the lots were 100 percent financed by Countryside. After the original sales, Countryside entered into partial purchase agreements with Fleet by which Fleet purchased the next 69 monthly installment payments due to Countryside by the original purchaser. Countryside assigned the instrument to Fleet with recourse until the 69 monthly payments were made to Fleet. Thereafter, Fleet was required to assign the instrument back to Countryside.

The underlying action involves the interpretation of the default provision contained in the partial purchase agreements which provided, in pertinent part, that upon default “[Fleet] may keep the Instrument (including [Countryside’s] retained interest therein) and all payments received and the underlying property that is the subject of the Instrument all of which [Countryside] and [Fleet] agree shall constitute partial liquidated damages of [Fleet]. [Fleet] may thereafter sell and dispose of the Instrument and the underlying property without further notice to [Countryside] and/or [Countryside’s] guarantors. In the event that such disposition of the Instrument and/or the property results in a loss to [Fleet], [Fleet] shall have recourse directly against [Countryside] and the guarantors for such loss. In the event such disposition results in a surplus, then [Fleet] shall refund said surplus.”

Fleet foreclosed on 24 residential lots from which Countryside maintains it is due the surplus obtained by Fleet. Fleet contends that it did not “sell and dispose of the Instrument” within the meaning of the partial purchase agreement because it was also the purchaser at the foreclosure sales.

Decided April 19, 1995

Reconsideration denied May 3, 1995

Johnson & Montgomery, Harry W. MacDougald, Nisbet S. Kendrick III, for appellant.

Morris, Manning & Martin, David A. Rabin, William M. Reid, for appellee.

1. “The construction of a contract is a question of law for the court. OCGA § 13-2-1; see also Kennedy v. Brand Banking Co., 152 Ga. App. 47, 53 (4) (262 SE2d 177) (1979). The cardinal rule of construction to be applied in the interpretation of contracts is to ascertain the intention of the parties.” (Citation and punctuation omitted.) McCumbers v. Westside Assoc., 214 Ga. App. 149 (447 SE2d 331) (1994). Fleet’s sale and disposal of the instrument, i.e., the agreement for deed, mortgage deed, and other such real estate secured obligations, was completed upon the foreclosure sales as evidenced by Fleet’s execution and filing of deeds under power of sale upon the foreclosure of each property. Therefore, the original deeds were sold and disposed of within the unambiguous meaning of the partial purchase agreements thereby obligating Countryside for any loss or Fleet for any surplus. The trial court correctly granted Countryside’s motion for partial summary judgment.

2. Fleet’s remaining enumeration is moot.

Judgment affirmed.

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

       The partial purchase agreement defined “Instrument” as an “Agreement for Deed, Mortgage Deed, and other such real estate secured obligations. . .

       The trial court did not reach the issue of the definition of the term surplus as used in the partial purchase agreements, and therefore, nothing in this opinion should be construed as to comment on whether a surplus exists.


text:
    A95A0354.
    JONES et al. v. MARCUS et al.
    (457 SE2d 271)
   Andrews, Judge.

About three months after Marcus bought two re-treaded tires for his pickup truck from Jones Tire & Alignment Company, one of the tires blew out while he was driving on Interstate 75. An accident resulted and Marcus was seriously injured. Marcus and his wife, who joined Marcus in the suit to bring a loss of consortium claim, sued the manufacturer of the re-treaded tire, Quality Treads, and sued Jones, individually, and d/b/a Jones Tire & Alignment Company (Jones), as the retailer. He claimed Jones negligently sold him a defective tire and breached implied warranties of merchantability (OCGA § 11-2-314) and fitness for a particular purpose (OCGA § 11-2-315). We granted the application of Jones for an interlocutory appeal from the trial court’s denial of his motion for summary judgment.

1. Jones claims that in denying summary judgment the trial court erroneously ruled that Marcus could recover damages for breach of an implied warranty under OCGA § 11-2-314 without showing that the re-treaded tire was defective or unmerchantable at the time of the sale. In denying the motion for summary judgment, the trial court expressly ruled that “the Court finds that proof of a defect at the time of sale is not, nor should be, an essential element of a breach of implied warranty claim under the Uniform Commercial Code.” The trial court cited no authority for this holding and stated it was an issue of first impression in Georgia. Although we have found no cases directly on point, it is obvious that the alleged defect or condition must have existed at the time of the sale. “As warranty liability under the Code is predicated upon a sale, it follows that the defect or condition of the goods relied upon to establish that there has been a breach of warranty must have existed at the time of the sale.” Anderson, Uniform Commercial Code, Vol. 3, § 2-314:57 (3rd ed. 1983). In other words, the implied warranties warrant against defects or conditions existing at the time of sale, but do not provide a warranty of continuing serviceability. Id. The trial court’s summary judgment ruling erred to the extent it held to the contrary.

2. In denying summary judgment to Jones, the trial court also ruled that there was evidence that the re-treaded tire was defective or unmerchantable at the time it was sold. Although an expert testified that the actual process of bonding the re-tread to the old tire casing was not defectively done, there was evidence that the old tire casing was not suitable to be re-treaded because the rubber of the old casing had lost its elasticity. There was expert testimony that, because the old casing lacked sufficient elasticity, a bubble developed between the ply-cords of the old tire casing and the outer rubber of the casing which caused the re-tread to separate from the casing in a catastrophic blow-out after the tire was sold and placed in use. There was evidence in the record sufficient to create a factual question as to breach of an implied warranty of merchantability. OCGA § 11-2-314. The trial court correctly denied summary judgment on this issue.

3. Jones contends that the trial court erroneously denied his motion for summary judgment on Marcus’ claim for breach of an implied warranty of fitness for a particular purpose. OCGA § 11-2-315 provides that: “Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under Code Section 11-2-316 an implied warranty that the goods shall be fit for such purpose.” This Code section “requires both the seller to have reason to know of the particular purpose for which the goods are required and the buyer to rely on the seller’s skill or judgment in selecting or furnishing suitable goods, in order to find this implied warranty on the part of the seller.” (Emphasis in original.) Bruce v. Calhoun First Nat. Bank, 134 Ga. App. 790, 794 (216 SE2d 622) (1975). Accordingly, the warranty of fitness for a particular purpose “ ‘envisages a specific use by the buyer which is peculiar to the nature of his business . . .’ UCC § 2-315, Official Comment, Par. 2 . . . [and] also requires that the seller know the buyer is relying upon the seller’s skill or judgment. White & Summers, Uniform Commercial Code, § 9-9, p. 358 (2d ed. 1980).” Fiat Auto U. S. A. v. Hollums, 185 Ga. App. 113, 114 (363 SE2d 312) (1987); Freeman v. Hubco Leasing, 253 Ga. 698, 703 (324 SE2d 462) (1985).

The only evidence is that Marcus told Jones he wanted tires for his pickup truck, and that Jones advised him on the proper size and type to fit the truck. Knowledge by Jones that the tires were to be used on the truck is not knowledge of a “particular purpose” within the meaning of OCGA § 11-2-315. Bruce, supra at 794. Although there is evidence in the record that Marcus used the truck in his construction business, there is no evidence that Jones was made aware that the truck or tires would be used in the business or for any particular purpose associated with the business. In the absence of any evidence that Jones knew Marcus was relying upon his skill or judgment to select tires for a “particular purpose,” Jones was entitled to summary judgment on the claim for breach of a warranty of fitness for a particular purpose. The trial court erred by denying summary judgment on this issue.

4. Jones also claims that he was entitled to summary judgment on the negligence claim because that claim was not carried forward from the complaint into the pre-trial order entered in the case. Liberally construed, the pre-trial order is sufficient to embrace consideration of the negligence issue. Cooper v. Rosser, 232 Ga. 597, 598 (207 SE2d 513) (1974); Fussell v. Carl E. Jones Dev. Co., 207 Ga. App. 521, 522-523 (428 SE2d 426) (1993). The trial court properly denied summary judgment on this issue.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Blackburn, J., concur.

Decided May 3, 1995.

McLain & Merritt, William S. Sutton, for appellants.

Eugene R. Kiser, Quentin Henderson, Jr., Abraham L. Kanner, for appellees.


text:
    A95A0597.
    NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA v. PRESTIGE HELICOPTERS, INC. et al.
    (457 SE2d 587)
   Andrews, Judge.

National Union Fire Insurance Company of Pittsburgh, Pennsylvania (National) filed this declaratory judgment action to determine its obligation to defend Prestige Helicopters, Inc. (Prestige), its pilot Ward, and Carroll, President of Prestige and owner of the helicopter, against a suit filed by Gleason. Gleason’s husband had been killed in a helicopter crash and she and the other defendants contended that an aviation insurance policy issued by National to Prestige covered the crash. Cross-motions for summary judgment were filed on the issue of coverage. The trial court concluded that the policy provided coverage to Prestige and Ward, but not to Carroll. The court further concluded that Gleason was a proper claimant under the policy. National appeals from this ruling as to Prestige, Ward, and Gleason.

On April 22, 1992, a Robinson model R22 helicopter bearing F.A.A. No. N-2589X crashed into an Atlanta house while carrying Gleason, a professional photographer. Gleason had rented the helicopter that day to fly him over Oakland Cemetery to make photographs. Gleason was killed in the crash and Ward was seriously injured.

Prestige, located in Lawrenceville, had maintained aviation fleet coverage of its helicopters with National beginning around 1989. Policies were renewed yearly, with the new policy reflecting both the old and new policy numbers. For the year March 9, 1991 through March 9, 1992, National Policy AV 321-33-04 was issued. It specifically listed helicopter N-2589X as a covered helicopter by endorsement No. 13 effective August 12, 1991. That helicopter had been purchased by Carroll individually in February 1991. It was financed through a local bank and then leased by Carroll to Prestige on July 1, 1991.

On February 19,1992, Prestige Helicopters subleased N-2589X to Silver Hawk Aviation Company, located in Rome, through May 31, 1992. Prestige was required by the sublease to, and did, obtain aviation insurance for the helicopter from another company. By endorsement 23, N-2589X was deleted from National’s policy AV-321-33-04 effective February 21, 1992. The helicopter was taken to Rome, adapted by Silver Hawk to use regular gasoline as opposed to aviation fuel, and used exclusively by Silver Hawk in its business for the next two months.

National issued policy AV-322-08-52, reflecting the prior year’s policy number as the predecessor policy, effective March 9, 1992 through March 9, 1993, with Prestige as the insured. That policy listed in Declaration Item 4 as covered aircraft four helicopters, not including N-2589X. All four of the listed helicopters were leased by Prestige from individuals or other entities, which fact was known to National. All helicopters listed under the 1991-1992 policy, including N-2589X, had also been leased by Prestige and this fact was known to National.

By mutual agreement, Silver Hawk and Prestige agreed to terminate the sublease early, effective upon return of the helicopter to Prestige, which took place April 22, 1992 when it was received at the Prestige hangar. Later that day, Gleason rented the helicopter and pilot Ward’s services from Prestige.

After the accident, that same day, Prestige notified National of the accident and advised that coverage was sought under Paragraph III of the policy, titled “Automatic Insurance for Newly Acquired Aircraft.” It provided that “[i]f the Named Insured acquires ownership of an aircraft in addition to the aircraft described in Item 4 of the Declarations and within ten days thereafter reports such acquisition to the Aviation Managers, [the agent] then the Insurance . . . shall apply to such additional aircraft as of the time of such acquisition, provided that [National] insured all other aircraft owned in whole or in part by [Prestige] on such acquisition date. . . . [Prestige] shall pay an additional premium required because of the application of the insurance to such other aircraft.” (Emphasis supplied.)

National argues that “acquires ownership” requires that Prestige have legal title to the helicopter for the first time in order to be covered by this paragraph and that the return of the possession of a plane previously “owned” by Prestige and subleased to another entity does not satisfy this provision.

“An insurance contract is governed by the ordinary rules of construction and should be construed to ascertain the intention of the parties. Golden v. Nat. Life &c. Ins. Co., 189 Ga. 79, 87 (5 SE2d 198) (1939); OCGA § 13-2-3 [(1982)]. In discovering the intent of the parties, the whole instrument should be considered together, along with the surrounding circumstances. Paul v. Paul, 235 Ga. 382, 384 (219 SE2d 736) (1975).” Progressive Preferred Ins. Co. v. Brown, 261 Ga. 837, 838 (1) (413 SE2d 430) (1992).

“The words used in policies of insurance, as in all other contracts, bear their usual and common significance [OCGA § 13-2-2], and policies of insurance are, as all other contracts, to be construed in their ordinary meaning.” Pilot Life Ins. Co. v. Morgan, 94 Ga. App. 394, 398 (94 SE2d 765) (1956). See also Fidelity &c, Co. of Maryland v. Sun Life Ins. Co. of America, 174 Ga. App. 258, 260 (1) (329 SE2d 517) (1985). “It is the responsibility of the court to determine whether an ambiguity exists. If the contract does not require disentanglement of the language by a jury, i.e., the words used are plain and clear in their common usage, it remains the duty of the trial court to look to the language of the contract with a view to effectuating the intent of the parties.” (Citation and punctuation omitted.) Paces Partnership v. Grant, 212 Ga. App. 621, 624 (2) (442 SE2d 826) (1994).

The common usage or popular sense can be determined by a dictionary. Cotton States Mut. Ins. Co. v. Smelcer, 212 Ga. App. 376, 377 (441 SE2d 788) (1994). “Acquire” is defined as “[t]o gain possession of.” The American Heritage Dictionary (2nd ed., 1985), p. 75. “Ownership” is defined as “1. [t]he state or fact of being an owner [and] 2. [l]egal right to the possession of a thing.” Id. at 888. The verb “own” is defined as “[t]o have or possess.” Id.

The policy must be construed liberally in favor of the insured and strictly against the insurer whose experts and legal advisers prepared it. Kytle v. Ga. Farm &c. Ins. Co., 128 Ga. App. 109, 112 (1) (195 SE2d 787) (1973); see Clark v. United Ins. Co. of America, 199 Ga. App. 1, 5 (4) (404 SE2d 149) (1991). So construing it and considering the common understandings of the words set out above, we conclude, as did the trial court, that the paragraph as a whole was ambiguous, but did not require consideration by a jury. Applying the rules of construction, the trial court determined and we agree that the legal right to possession of the helicopter was what was meant by the newly acquired aircraft clause stated above, whether that was the first or second time that right to possession had been enjoyed. Therefore, when Silver Hawk’s sublease terminated, Prestige acquired the right to possess N-2589X under its lease with Carroll, the legal title holder, to the exclusion of the lienholder bank or anyone else and the clause was triggered.

We are not persuaded by the foreign authority relied upon by National, and the Georgia authority cited is all distinguished by the policy language used or the particular facts of each case. See Lumbermens Mut. &c. Co. v. Commercial &c. Co., 155 Ga. App. 908 (273 SE2d 649) (1980); Ga. Mut. Ins. Co. v. Criterion Ins. Co., 131 Ga. App. 339 (206 SE2d 88) (1974); LaSalle Nat. Ins. Co. v. Popham, 125 Ga. App. 724, 730 (2) (188 SE2d 870) (1972).

Therefore, the judgment of the trial court is affirmed.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

Decided May 3, 1995.

Bovis, Kyle & Burch, Steven J. Kyle, William S. Allred, for appellant.

Gleaton, Scofield, Egan & Jones, E. Clayton Scofield III, Glenville Haldi, for appellees.


text:
    A95A0627.
    BONNELL et al. v. AMTEX, INC.
    (457 SE2d 590)
    Decided May 3, 1995.

      Richard J. Tuneski, for appellants.

      Weener & Associates, Philip H. Weener, William P. Mason, for appellee.
   McMurray, Presiding Judge.

Defendants’ notice of appeal, filed on November 3, 1994, recites that they were appealing from the August 1, 1994, order of the trial court, which granted summary judgment on behalf of plaintiff Amtex, Inc., and set aside as fraudulent certain conveyances of real and personal property from defendant Edwin W. Bonnell to his spouse, defendant Susan Lynn Bonnell. Defendants’ motion to set aside judgment was filed on August 29, 1994, and denied on October 5, 1994. In a separate order of October 5, 1994, the trial court imposed sanctions on defendants in the amount of $750 “as reasonable attorney’s fees related to Plaintiff’s Motion.” This direct appeal followed. Held:

The order imposing a $750 sanction for wilfully failing to attend a scheduled post-judgment deposition is in the nature of an award for frivolous litigation within the purview of OCGA § 9-15-14 (b). Such an award is not directly appealable but requires an application to this court pursuant to the discretionary appeal procedures. OCGA § 5-6-35 (a) (6). The denial of defendants’ motion to set aside the judgment, brought under the authority of OCGA § 9-11-60 (d), also requires an application for discretionary appeal. OCGA § 5-6-35 (a) (8). Since neither ruling appealed from is tied to a directly appealable order, the appeal in the case sub judice must be dismissed.

Appeal dismissed.

Andrews and Blackburn, JJ., concur.


text:
    A95A0236.
    NEWSOME v. THE STATE.
    (457 SE2d 232)
   Birdsong, Presiding Judge.

Randy Lee Newsome was convicted of aggravated child molestation. He contends the trial court erred in refusing his request to charge on circumstantial evidence.

The victim was the three-year-old son of appellant’s cousin. The child’s mother, who lived with her children and husband in her parents’ trailer home, testified that on July 5, 1993, appellant visited her home. During appellant’s visit, the mother took a nap; she also heard appellant talking about a barbecue. Appellant stated that he wanted to check on the corn in the field behind the trailer. The three-year-old child was allowed to go to the cornfield with him. The mother went to the store briefly with her sister and returned. About 30 or 45 minutes after appellant and the child had been in the cornfield, relatives hollered for appellant; appellant came back from the cornfield, holding the child on his hip. Appellant put the child down. After appellant left in his car, the child immediately came into the house and said: “My butt hurts.” He looked like he was crying. His mother asked, “Why does your butt hurt?” The child said, “ ‘Cause Randy stuck his ding-dong in my butt.” His mother started shaking him and said, “He did what?” He started crying. His mother said, “Tell mama the truth.” The child said again, “Randy stuck his ding-dong in my butt.” The mother pulled the boy’s pants down; he “really looked like he had been messed with. It was red, it was dirty.” She ran with the child to her sister’s home nearby and begged to be taken to the hospital; when the sister asked why, the mother pulled the boy’s pants down and showed the sister. The sister took them to the hospital. The child did not use the bathroom after he told his mother what happened; “all he kept doing was holding his butt saying his butt hurt.” After the molestation, the child’s behavior changed completely and he began to act out sexually with other children.

The child, who was four years old at the time of trial, testified that he did not like appellant; he remembered going to a cornfield with appellant; in the cornfield “Randy stick his thing in my butt” and it made him cry; when he came out of the cornfield he told his mother what appellant had done and he was taken to the hospital. He denied that any other boy “did it” to him.

The child’s aunt, who is the mother’s sister, testified that on July 5, 1993 she had been at the child’s house where her parents also lived; she did not see appellant that day but she saw his car. After going to the store with the child’s mother, she went home. The child’s mother “brought him to me screaming and crying, and [the child] was crying. And [the mother] asked me to take her to the emergency room”; the child told her “Randy stuck his ding-dong in his butt [while they were] in the cornfield. ... He just kept telling me it was hurting, and he told me that Randy did it.”

The examining physician testified that on July 5, 1993 the child told her “[t]hat he had gone out into the cornfield with his [cousin and] they had been gone for about 35 or 40 minutes. . . . And then he told his mom that his — to use his words — that he had pain in his bottom because Randy had stuck his ding-dong inside his butt.” The doctor testified that the child identified the perpetrator as “Randy.” The physical examination revealed the child had fecal matter and redness around his rectum which were indicia that he had “some penetration into his rectum”; the examination also indicated “some type of manipulation or something in that area for it to have redness. It is hard to say what could have caused [this].” The examination results were consistent with the child’s story about what had happened.

A clinical psychologist testified the mother brought the child to him in September 1993, reporting that he exhibited a higher frequency of sexual type responses and was more angry, more aggressive, was having nightmares and night fears. The psychologist testified the child “consistently and spontaneously related to me a sequence of events that has not changed a great deal over the some ten sessions that I have seen him [which is] that a person who is described as . . . an older teenager, whose name is Randy, promised him money and took him to a cornfield, pulled his trousers — pants down, and put his — as he put it, his ding-a-ling, or his penis into his butt. ... At which point he would typically talk about how angry he was, and how scared he was and how he could not stop that. And this was a sequence of events that he has repeated a number of times.”

Appellant tried to show someone else had sexually abused the boy. Appellant testified he went to the child’s home because he thought he and his wife had been invited to a barbecue but when he arrived, there was no barbecue; there was drinking at the house; the only time he saw the three-year-old child was when the child was playing in the yard; he did not go to the cornfield but stood at the edge of it. Held:

It is now well established in this state, as held in Mims v. State, 264 Ga. 271 (443 SE2d 845) and Robinson v. State, 261 Ga. 698 (410 SE2d 116), that where the State’s evidence depends in whole or in part on circumstantial evidence, a charge on circumstantial evidence must be given on request. When the State introduces both direct and circumstantial evidence, regardless how the evidence is characterized, the State’s case “depends” in whole or in part on each and every item of proof introduced into evidence, for the jury may rely upon that particular item of proof to reach its verdict. It is impossible to prejudge what evidence a jury will consider in reaching its verdict. “Since a jury could consider circumstantial evidence in every instance where it has been introduced, upon request, the trial court must give the charge so that the jury will be familiar with how to weigh that circumstantial evidence.” Mims, supra at 272.

As we held in Johnson v. State, 210 Ga. App. 99, 100 (435 SE2d 458), “In light of [Robinson], a trial court positively invites reversal of a criminal conviction when it fails to give the circumstantial evidence charge whenever such a charge is requested. . . . Virtually every case contains some circumstantial evidence and, if the charge is not given, stands in danger of being reversed for clearly harmful and erroneous error. The charge is a fundamental principle of law as to criminal guilt and there is no reason not to give it; the State is not harmed by it and has no right to have it omitted.” This was quoted with approval in Mims at fn. 2. However, we also held in Johnson that the refusal to give the circumstantial evidence charge in that case did not require reversal for the evidence of guilt “was overwhelming; the evidence and all reasonable deductions therefrom were completely inconsistent with a reasonable hypothesis of innocence. To reverse the convictions would be a perversion of justice. [Cits.]” Id. at 101. In Mims at 273, it was held that “the evidence was close enough that failure to give this charge was not harmless.” Similarly, in Ellerbee v. State, 215 Ga. App. 102, 104 (4) (449 SE2d 874), we held the failure to give the circumstantial evidence charge, although error, was “rendered harmless by the overwhelming direct evidence” of guilt.

We have examined the evidence in this case and we find that as it happens, the failure to give the circumstantial evidence charge, though error, was harmless in the facts of this case, for the evidence and all reasonable deductions therefrom were completely inconsistent with a reasonable hypothesis of innocence; to reverse the convictions would be a perversion of justice. Johnson, supra. We also find the evidence sufficient under the standards of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

We note that Robinson was written in 1991; we wrote Johnson in August 1993, warning that not only is the circumstantial evidence charge required, but there is no reason ever to refuse to give it. This case was tried in May 1994. The failure to give the charge is an incomprehensible waste of judicial economy and an unnecessary strain on the judicial resources of the appellate court. This is particularly evidenced in this case by the necessity imposed to wade through the State’s brief which frivolously argues, as if Robinson had never been written, that the charge was not required.

Although we find the error harmless in this case, there is no reason this error should ever occur. Since we have held that to omit it “positively invites reversal” (Johnson, supra at 100; see also Mims, supra; Ellerbee, supra) on appeal, an insistent refusal to give the charge indicates that some right is perceived in the State to have it omitted. This diminished view of the State’s burden of proof must be deemed potentially harmful to all criminal defendants in every case, even if the failure to give the charge happens to be harmless in this particular case.

Decided April 11, 1995

Reconsideration denied May 4, 1995.

Stanley C. House, for appellant.

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

Judgment affirmed.

Johnson and Smith, JJ., concur.


author: Johnson, Judge.

text:
    A95A0189.
    CRENSHAW v. BRUMBY.
    (457 SE2d 591)
   Johnson, Judge.

Gwendolyn Crenshaw sued James Brumby for damages resulting from a rear-end automobile collision. Crenshaw appeals the trial court’s grant of a directed verdict in Brumby’s favor.

At trial, Crenshaw testified that she was driving in the center lane of 1-285 at a speed of 60 mph when she heard a noise of unknown origin coming from her vehicle. She applied her brakes, activated her emergency blinkers, and slowed considerably as she attempted to move to the left emergency lane. She motioned to the car traveling immediately behind her and it drove around her. Before she could successfully leave the roadway, her vehicle was struck from behind. Crenshaw testified she did not see the car that hit her prior to the collision, but she placed her car and a vehicle described as the defendant’s vehicle on a diagram of the accident scene. The remainder of Crenshaw’s testimony related to damages, and upon this evidence counsel rested the plaintiff’s case. Brumby moved the court to direct a verdict in his favor, which the trial court granted noting that Crenshaw had not identified who was driving the car which hit her or presented evidence establishing that Brumby had committed any act of negligence.

A directed verdict is authorized only when there is no conflict in the evidence on any material issue and the evidence, with all reasonable deductions and construed in favor of the non-moving party, demands a certain verdict. OCGA § 9-11-50 (a). “The general rule is that where the plaintiff driver is forced by traffic or traffic lights ahead [or mechanical problems] to slow or stop, and the defendant who hits the lead car contends that he was not guilty of negligence, the question is for the jury, but such evidence is in and of itself, sufficient to sustain the inference of negligence on the part of the defendant if the jury believes such to have been the fact and if other evidence does not demand a contrary conclusion.” (Punctuation omitted.) Cagle v. Ameagle Contractors, 209 Ga. App. 712 (434 SE2d 546) (1993). A driver has no right to assume that the road ahead is clear and has a duty to maintain a lookout for potential hazards. Brown v. Shiver, 183 Ga. App. 207, 208 (1) (358 SE2d 862) (1987). The issue of negligence was one for the jury.

Decided May 4, 1995.

William Y. Barnes III, Freedman & Sinowski, Thomas C. Sinowski, Marc H. Bardack, Thomas E. Jordan, for appellant.

Cooper & Associates, Gary M. Cooper, Craig C. Avery, for appellee.

With regard to the identification of Brumby as the driver of the car involved in the collision, Crenshaw pointed to a vehicle on a diagram in response to her attorney’s request that she identify defendant’s vehicle. While Crenshaw did not identify Brumby by name, he is the only defendant in this case, and a reasonable deduction in her favor, which must be drawn in accordance with the mandate of the directed verdict statute, is that the defendant at trial was Brumby, and that Brumby was the driver of the car she had previously identified as the defendant’s. The trial court’s conclusion that Crenshaw’s failure to identify the driver as Brumby was fatal to her case was error.

Crenshaw’s testimony that her car was hit after slowing in response to mechanical problems, and her identification of “defendant’s vehicle” on a diagram, placing it both at the time of impact and after the accident was adequate to raise at least an inference of negligence on Brumby’s part which would preclude a directed verdict. A jury should have been allowed to determine whether the evidence was sufficient to identify Brumby as the driver, as well as the ultimate issue of negligence. The trial court erred in directing a verdict in Brumby’s favor.

Judgment reversed.

Birdsong, P. J., and Smith, J., concur.