text:
    A94A0934.
    HILL et al. v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY.
    (448 SE2d 747)
   Beasley, Presiding Judge.

The Hills took out a homeowners insurance policy with Nationwide in 1988. In June 1992, the Hills moved from the covered home, which suffered damage in an August 1992 fire. Nationwide refused to pay the Hills’ claim and the Hills sued. Nationwide moved for summary judgment, relying upon the insurance agreement’s language identifying the covered premises. The Hills moved for partial summary judgment as to liability, relying upon the same language. Summary judgment was awarded to Nationwide and the Hills appeal.

The Hills contend that the trial court erred as a matter of law in reading the contract to exclude coverage after the Hills moved from the premises. They argue that it must be read to include coverage, or in the alternative, to be ambiguous and therefore construed against its drafter, Nationwide. On the other hand, Nationwide relies only upon the contract language identifying and defining the covered premises. It argues that in identifying the premises, the agreement also requires that the premises be occupied or become, in effect, “unidentified.”

The policy states: “We cover: a. the dwelling on the residence premises shown on the Declarations and mainly used as a private residence, including attached structures and attached wall-to-wall carpeting.” This coverage clause contains no exclusion of coverage when the dwelling is vacant, nor does any such explicit exclusion appear elsewhere in the agreement. Nationwide does not contend that the dwelling was not “mainly used as a private residence,” even though temporarily vacant. Rather, it points to the definition section of the agreement and its clause: “8. ‘Residence premises' means the one- or two-family dwelling, other structures and grounds; or that part of any other building where you live, shown as the residence premises on the Declarations.” The declaration page shows the location of the residence premises as Lot 60F, Pecan Subdivision, Putney, Georgia. It is undisputed that the damaged home is located there. Nationwide contends that this definition is tantamount to a clause that states coverage will cease when the premises are no longer used as the residence of the insured.

“ ‘ “In construing an insurance policy, ‘(t)he test is not what the insurer intended its words to mean, but what a reasonable person in the position of the insured would understand them to mean. The policy should be read as a layman would read it and not as it might be analyzed by an insurance expert or an attorney.’ (Cit.) ‘Where a provision in a policy is susceptible to two or more constructions, the courts will adopt that construction which is most favorable to the insured. (Cit.)’ (Cits.)” (Cit.)’ [Cit.]” Atlantic Wood Indus, v. Lumbermen’s Underwriting Alliance, 196 Ga. App. 503, 505 (2) (396 SE2d 541) (1990). “ ‘Under Georgia law, the risk of any lack of clarity or ambiguity in an insurance contract must be borne by the insurer. (Cit.)’ [Cit.]” Id. at 506. “ ‘Ambiguity in an insurance policy may be defined “ ‘as duplicity, indistinctness, an uncertainty of meaning or expression.’ ” [Cit.]’ [Cit.]” Cantrell v. Nationwide Mut. Fire Ins. Co., 193 Ga. App. 106, 107 (387 SE2d 42) (1989). Additionally, “ ‘ “ ‘[t]he contract must be examined “as a whole” in attempting to construe any portion thereof.’ ” ’ ” Edwards v. Atlantic Ins. Co., 203 Ga. App. 608, 609 (1) (417 SE2d 410) (1992).

Nationwide contends that the “clear import” of the policy’s definition of residence premises is that the identified premises are insured only so long as the insured lives at that location. That, however, is not the case. Language such as that used here does not impose requirements but rather “may be viewed as relating only to identification of the [covered premises].” Cantrell, supra at 107. A conclusion that this language is only for identification is supported by the structure of the contract and its different clauses. The definition clause is referred to by the identification clause, which simply identifies the premises covered. Neither states a requirement that the insured reside on the premises for it to be covered.

The only requirement of residence that could be read into the definition clause would pertain only to “that part of any other building where you live. . . .” The inclusion of the language “that part of any other building where you live” is obviously inserted to provide coverage of only the appropriate space when the insured resides in a multi-unit dwelling and not in a “one- or two-family dwelling” of the type listed previously in the definition. This identification of covered premises then makes reference to the declarations page for more specific identification of the “one- or two-family dwelling” or “part of any other building” that is the covered premises.

To give the identification clause the reading urged by Nationwide also would render other portions of the agreement ineffectual. In Section I of the agreement, dealing with property damage and exclusions of coverage, the contract states that one of the perils insured against is physical damage due to freezing pipes “while the dwelling is vacant, unoccupied or being constructed” as long as the insured has used reasonable care to maintain heat, shut off the water, and drain the water systems. Similarly, coverage is explicitly provided for damage due to vandalism during the first 30 days of vacancy. This section of the contract states that items not excluded are covered.

These provisions, explicitly granting coverage through the mechanism of exceptions to exclusions, are the only references to vacancy in the contract. Coverage is also extended to damages to personal property during similar periods of vacancy or unoccupancy.

Thus, Nationwide advocates a construction of the contract that either renders specific coverages void or allows coverage during vacancy for the perils of vandalism and freezing pipes not specifically excluded, but somehow voids coverage for the fire that occurred in the instant case. Neither construction comports with the requirement that the contract be read as a whole, Edwards, supra, nor with the rule of contract construction that specific terms will prevail over general. Auto-Owners Ins. Co. v. Barnes, 188 Ga. App. 439, 440-441 (1) (373 SE2d 217) (1988); Southeast Atlantic Cargo Operators v. First State Ins. Co., 197 Ga. App. 371, 373 (398 SE2d 264) (1990).

Nationwide urges as controlling the case of Epps v. Nicholson, 187 Ga. App. 246 (370 SE2d 13) (1988), in which a slightly different identification clause was found to exclude coverage when the insured did not occupy the residence premises. In Epps, however, the identification clause defined “residence premises” as “ ‘the one or two family dwelling, other structures, and grounds or that part of any other building where you reside and which is shown as the “residence premises” in the Declarations.’ ” Id. at 246. This clause was found to impose two requirements for coverage, that the dwelling be where the insured resides and that it be identified on the declaration page. The premises at the listed address was rental property.

Moreover, contrary to Nationwide’s contention, the insurance agreement at issue does not “define [ ] residence premises in terms identical to the contract language in Epps.” The clause at issue defines “residence premises” as “the one- or two-family dwelling, other structures and grounds; or that part of any other building where you live, shown as the residence premises on the Declarations.” Although wording is similar, it is different in crucial respects, as is punctuation. One major difference in the wording of the Epps and instant clauses is the inclusion of the word “and” between “where you reside” and “which is shown . . . [on the declaration page]” in the Epps clause. This language makes it clear that in the Epps policy, both situations are required. The conjunctive “and” does not, however, appear in the instant clause. To the contrary, the instant clause includes a disjunctive “or,” which is not present in the Epps clause at all. Additionally, the inclusion of the semi-colon in the instant clause clearly shows that “where you live,” without any intervening punctuation, is only intended to modify “that part of any other building.” Punctuation is an important indicator of meaning. See, e.g., Ga. Intl. Life Ins. Co. v. Bear’s Den, 162 Ga. App. 833 (1) (292 SE2d 502) (1982).

Decided September 13, 1994

Reconsideration denied October 4, 1994.

Dorough & Sizemore, Kermit S. Dorough, Jr., W. James Size-more, for appellants.

Murray & Temple, William D. Strickland, John C. McCaffery, for appellee.

Nationwide also relies upon Ga. Farm Bureau Mut. Ins. Co. v. Kephart, 211 Ga. App. 423 (439 SE2d 682) (1993), but this reliance is misplaced. The identification clause in that case defined “residence premises” as “ ‘a. the one family dwelling, other structures, and grounds; or b. that part of any other building; where you reside and which is shown as the “residence premises” in the Declarations.’ ” Id. at 424 (1) (a). This language and sentence structure clearly require that whether the covered premises is “a. the one family dwelling . . .” or “b. that part of any other building,” the insured must reside there. Kephart had permanently moved from the premises and her ex-husband and new wife were living there while Kephart was the named insured. Nationwide did not write the contract in this case in the same way as was done in Kephart and the fact that there was a residence requirement in Kephart does not affect the plain meaning of the language in the instant case. Additionally, the Kephart policy also contained a clause stating “ ‘the residence premises (must be) the only premises where the named insured or spouse maintains a residence. . . .’ ” Id. Again, Nationwide did not include such a clause.

Reading the insurance contract as would a reasonable person in the position of the insured, it clearly provides coverage of the house on the lot listed on the declaration page. The court erred in granting Nationwide’s motion for summary judgment and in denying the Hills’ motion for partial summary judgment.

Judgment reversed.

Andrews and Johnson, JJ., concur.

       The policy does not require that the insured have an ownership interest in the covered premises.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A94A1803.
    BOWERS et al. v. GRIZZLE et al.
    (448 SE2d 759)
   Birdsong, Presiding Judge.

James Ray Bowers, a minor child, drowned in a swimming pool located on the premises owned by appellee/defendant Betty L. Grizzle, said premises being the residence of Betty L. Grizzle’s son, appel-lee/defendant Ricky Grizzle. Appellants/plaintiffs Teresia Toney Bowers and Teresia Ann Bowers, as temporary administratrix of the estate of the deceased, brought suit for wrongful death against appel-lees. This is an appeal from the superior court’s order granting summary judgment in favor of appellees.

James David Bowers visited James Ricky Grizzle at the latter’s home; Bowers took his 32-month-old son, the deceased, with him. Bowers had been friends with Grizzle for about four years; he had an open invitation “as any other friend” to visit Grizzle whenever he wanted. Bowers was, during the course of the visit, the supervising parent of the deceased. An above-ground swimming pool was on the premises; Bowers had visited the premises on numerous other occasions and had knowledge of the pool and its location. On previous occasions Bowers had taken the deceased to the premises; he had previously held the deceased in his arms in the pool but the deceased would not otherwise get into the pool. Ricky Grizzle was aware of the deceased’s fear of water. There exists some evidence that the pool was enclosed by a fence and gate but the gate had been temporarily removed for repairs; however, there is some conflicting evidence that no gate was installed until after the deceased drowned. Bowers asserts there was a gate and that on the day of the incident, he was aware that the swimming pool gate had been temporarily removed.

While Bowers was in the house watching James Grizzle change a diaper on his daughter, the deceased left the porch and wandered into the pool area. The deceased had been told by his father to stay on the porch. Deceased fell into the pool and drowned. Held:

1. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) expresses the appropriate summary judgment standard where movant is defendant.

2. While evidence exists that Betty L. Grizzle owned the premises, there is no evidence of record sufficient to create a genuine issue of material fact that she occupied a relationship of landlord/tenant with her son. Appellants’ assertions in their brief of a landlord/tenant relationship between the Grizzles are not supported by the record and cannot be considered on appeal. Behar v. Aero Med Intl., 185 Ga. App. 845, 846 (1) (366 SE2d 223). Accordingly Smith v. Housing Auth. &c., 212 Ga. App. 503 (441 SE2d 847) and other cases cited by appellants, which involve injury to guests of a tenant, are distinguishable from the case at bar.

3. The record establishes, without controversion, that on the day of the incident deceased and his father were on the premises in the status of social guests of appellee Ricky Grizzle. The mere fact that the deceased’s father had been a friend of Ricky Grizzle for four years and currently is living in Grizzle’s house does not, as a matter of law, negate this status. As the deceased and his father were not trespassers, we find distinguishable cases such as Gregory v. Johnson, 249 Ga. 151 (289 SE2d 232) and Knutzen v. O’Leary, 210 Ga. App. 590 (437 SE2d 347), which involve an application of the attractive nuisance doctrine for the protection of certain classes of trespassing children.

4. A party is not an insurer of social guests; nor does mere ownership or physical control over a swimming pool result in absolute liability for injuries sustained by social guests. See Pope v. Workman, 211 Ga. App. 263, 264 (439 SE2d 86). As social guests, the legal status of deceased and his father was that of licensees; under Georgia law, appellees owe only a duty not to injure social guests wilfully and wantonly. Id.; OCGA § 51-3-2 (a), (b); compare Walker v. Daniels, 200 Ga. App. 150, 154 (1) (407 SE2d 70). This is not a case involving a hidden defect; the existence and condition of the pool were open and obvious; a swimming pool is not per se a pitfall or mantrap (Oliver v. City of Atlanta, 147 Ga. App. 790, 792 (3) (250 SE2d 519)). Compare Riley v. Brasunas, 210 Ga. App. 865 (438 SE2d 113). Regardless of the age or capacity of the injured or deceased person, in the absence of a breach of some legal duty toward such person by the appellees, there can be no liability. Winchester v. Sun Valley-Atlanta Assoc., 206 Ga. App. 140, 141 (2) (424 SE2d 85).

If the evidence in this case were uncontroverted that the pool had been fenced at the time of the incident and that the gate had been temporarily removed only for the purpose of repair, it would appear that summary judgment in favor of appellees would have been appropriate even under a reasonable care standard. Compare Gregory, supra at 155. In this case, there exists some evidence in the form of statements by way of affidavits of deceased’s mother and a third-party witness that no gate was installed in the gateway of the fence around the swimming pool until after the deceased drowned; there also exists evidence that deceased was a frequent visitor with his father at appellees’ home and that deceased’s father had a standing invitation to come over at any time with or without his son. Thus, we recognize that Ricky Grizzle was on notice that the deceased would be on the premises as a social guest at varying times and without the necessity of a prior specific invitation. However, “ ‘even young children have a natural fear of water,’ ” {Riley v. Brasunas, supra at 867 (1)), and the evidence is uncontroverted that appellee Ricky Grizzle was aware of the deceased’s fear of the pool. Assuming no gate was installed until after deceased drowned, we find that such failure, as a matter of law, does not create a genuine issue of material fact as to wilful or wanton conduct by appellees. The swimming pool was an open and obvious, usual condition of the premises. “ ‘As to [static conditions of the premises], the owner or occupant owes no greater duty to the licensee whose presence is known than to any other licensee, and this is not to wilfully or wantonly injure him. (Cits.) Further, there is no duty to a licensee with respect to keeping the usual condition of the premises up to any particular standard of safety except that they must not contain a pitfall or mantrap.’ ” (Emphasis supplied.) Riley, supra at 867. Additionally, “ [i]t would normally be the duty of a parent or other adult [having primary supervisory control over the child] to see to it that a child would not be going into a place of obvious danger.” Wright v. Shoney’s of Savannah, 141 Ga. App. 362, 363 (233 SE2d 474). The trial court did not err in granting summary judgment in favor of appellees.

Decided September 16, 1994

Reconsideration denied October 4, 1994 —

Macklyn A. Smith, Sr., for appellants.

James R. Grizzle, pro se.

Blasingame, Burch, Garrard & Bryant, Andrew J. Hill, Milton F. Eisenberg II, for appellees.

Judgment affirmed.

Ruffin, J., concurs. Blackburn, J., concurs in judgment only.


author: Beasley, Presiding Judge.

text:
    A94A1825.
    IHESIABA et al. v. PELLETIER et al.
    (448 SE2d 920)
   Beasley, Presiding Judge.

Ihesiaba and his wife filed the present complaint against Pelle-tier, Frenchy Homes, Inc., Richards, and Henry. Frenchy Homes, a corporation wholly owned by Pelletier, was named by plaintiffs as a defendant because of their belief that Richards and Henry are its employees. During discovery plaintiffs learned they are employees of Frenchy Community Developer, Inc., another corporation wholly owned by Pelletier. The court granted plaintiffs’ motion to join Frenchy Community Developer as a party defendant.

Plaintiff Ihesiaba operates a limousine service. Pelletier engages in the sale and development of real estate through Frenchy Homes, Frenchy Community Developer, and two other corporations wholly owned by him.

These corporations held a Christmas party for their employees at which attendance was optional. The employees were provided with alcoholic beverages at company expense, which Pelletier observed Richards and Henry consuming. Pelletier hired plaintiff to provide transportation for himself and several employees to go to the Lone Star Cafe from the party. When Pelletier arrived there, Richards and Henry were at the bar. They joined Pelletier at his table and began consuming drinks for which he paid.

Fred and Gail Poteet, co-owners and managers of the cafe, testified that they quit serving liquor to Pelletier, Richards, and Henry because they were behaving “in a very unpleasant and aggressive manner”; also, Richards and Henry were “highly and visibly intoxicated” and “loud, abusive and physically threatening to other patrons of the bar.”

At Pelletier’s request, drinking privileges were restored to him on the condition that no alcohol be provided to Richards or Henry. When Pelletier informed Richards and Henry of this restriction, they became very threatening to Fred Poteet. Pelletier stood behind them smirking. Gail Poteet testified that it was clear that Richards and Henry were potentially violent.

Later, Pelletier attempted to give drinks to Richards and Henry, at which point the latter two were ejected from the cafe. They returned and demanded a coat. Gail Poteet told them she would have the coat brought to them outside. She was then shoved very hard by one of them, who became verbally abusive as well. They were ejected from the cafe again and the door was locked. When they began screaming, kicking the door, and making a great deal of noise, Gail Poteet called the police. Plaintiff was also summoned to the scene. Gail Poteet told the police she only wanted Richards and Henry to leave and did not want them arrested. After talking to the police, Pel-letier paid plaintiff $200 to take them home.

As alleged in the complaint and testified to in part by plaintiff, Richards and Henry 'became threatening and abusive on the way home. Upon arrival at the home of one of them, plaintiff asked them both to leave the car. Only one got out. The other was again asked to leave. He attacked plaintiff by ripping a radio car phone from its mounting and hitting him on the head with it. He then got out of the car, came around to the driver’s side window and kicked out the window, driving his foot into plaintiff’s face and eye. This blow also drove glass into plaintiff’s eye, completely slicing his cornea in two. He suffered severe and permanent injury to his right eye, causing permanent double vision.

In the complaint, plaintiffs seek a recovery under three theories. The first is breach of the duty of good faith and fair dealing underlying every contract by failing to inform plaintiff of the dangerous and criminal behavior of Richards and Henry that evening. The second is negligent breach of the private duty not to knowingly place another party in danger of personal injury. The third is liability in tort for providing alcoholic beverages to Richards and Henry after they became highly and visibly intoxicated and exhibited aggressive and criminal behavior, making it foreseeable that they were capable or predisposed to commit the assault and battery that occurred.

The trial court granted Pelletier’s and his corporations’ motion for summary judgment on all counts. The court concluded that Pelle-tier is not chargeable with breach of a contractual duty of good faith and fair dealing, because this duty applies to a party’s ability to perform a contract and Pelletier completed his performance with the tender of the agreed fee to plaintiff. The court discerned no evidence that would support a finding that it was reasonably foreseeable that Richards or Henry would attack plaintiff once he delivered them home. The court ruled that under OCGA § 51-1-40, neither Pelletier nor his corporations can be held liable to plaintiffs on the ground that they provided alcoholic beverages to Richards and Henry, because Pelletier arranged for them to be transported home to prevent them from driving. The court also noted that Richards and Henry were not employees of Frenchy Homes.

Challenging the constitutionality of OCGA § 51-1-40, plaintiffs appealed to the Supreme Court of Georgia. By order, the Supreme Court transferred the appeal to this court on the ground that “[t]he constitutional claims raised in this appeal involve well-settled principles of law.”

1. Plaintiffs contend that the court erred in applying OCGA § 51-1-40.

The common law rule was that no tort cause of action arose against one who furnished intoxicating liquor to a person who thereby voluntarily became intoxicated and in consequence of such intoxication injured himself or another. Sutter v. Hutchings, 254 Ga. 194, 195 (1) (327 SE2d 716) (1985). In Sutter, the Supreme Court, applying common law principles to statutory duties not to furnish alcoholic beverages to any underage person or person in a state of noticeable intoxication, held that a person who furnishes alcohol to a noticeably intoxicated underage person, knowing that such person would soon be driving his or her car, could be held liable in tort to a third person injured by the negligence of the intoxicated driver.

Several years after Sutter, the General Assembly enacted OCGA § 51-1-40. Subsection (a) declares that the consumption of alcoholic beverages, rather than the furnishing of such beverages, is the proximate cause of any injury inflicted by an intoxicated person upon himself or another person, except as provided in subsection (b). Subsection (b) provides that a person who furnishes alcoholic beverages to another person of lawful drinking age shall not thereby become liable for injury to third persons caused by or resulting from the intoxication of such other person. There is a proviso: a person who knowingly furnishes alcoholic beverages to a person who is not of lawful drinking age or to a person who is in a state of noticeable intoxication, knowing that such person will soon be driving a motor vehicle, may become liable for injury caused by or resulting from the intoxication of such person when the furnishing is the proximate cause of such injury.

In Riley v. H & H Operations, 263 Ga. 652 (436 SE2d 659) (1993), the Court held that when the General Assembly enacted OCGA § 51-1-40, it abrogated the common law rule set forth in Sut- ter and created a new cause of action. The Court also rejected a challenge to the constitutionality of OCGA § 51-1-40 on due process grounds.

(a) Insofar as plaintiffs seek to impose liability upon Pelletier and his corporations on the ground that they furnished alcoholic beverages to Richards and Henry, their cause of action is barred by OCGA § 51-1-40 because this case does not fall within any exception delineated in subsection (b).

(b) Plaintiffs argue that OCGA § 51-1-40 is inapplicable when the provider of alcoholic beverages is an employer of the intoxicated person. To the contrary, the rules contained in Sutter, and thus OCGA § 51-1-40, remain applicable when the provider is an employer. See Pirkle v. Hawley, 199 Ga. App. 371 (405 SE2d 71) (1991); Southern Bell Tel. &c. Co. v. Altman, 183 Ga. App. 611 (359 SE2d 385) (1987).

(c) Plaintiffs argue that if OCGA § 51-1-40 applies to this case, it is unconstitutional in that it violates their right to equal protection. The Supreme Court has exclusive jurisdiction to determine the constitutionality of a state law, Burke v. State, 205 Ga. 520, 521 (54 SE2d 348) (1949), except where the law has been held to be constitutional as against the same attack being made. Blackwell v. State, 180 Ga. App. 253, 254 (1) (349 SE2d 13) (1986). Inasmuch as this case was transferred here even though OCGA § 51-1-40 has not been held constitutional as against the same attack being made, we must conclude that the Supreme Court has determined that the constitutional issue was not properly raised or not meritorious. Conner v. State, 205 Ga. App. 564, 565 (1) (422 SE2d 872) (1992).

2. Plaintiffs charge Pelletier with breaching a contractual duty of good faith and fair dealing by not providing information concerning Richards’ and Henry’s behavior.

The implied duty of good faith and fair dealing requires both parties to a contract to perform their promises and provide such cooperation as is required for the other party’s performance. Whisenant v. Fulton Fed. Sav. &c., 200 Ga. App. 31, 33 (1) (406 SE2d 793) (1991). Based on the evidence, Pelletier is not chargeable with a breach of duty in either respect.

3. Plaintiffs charge Pelletier with committing a tort by breaching a private duty not to knowingly place another in danger of receiving personal injury. They rely upon the general duty one owes to all the world not to subject a person to an unreasonable risk of harm, as rec-l ognized in Bradley Center v. Wessner, 250 Ga. 199, 201 (296 SE2d 693) (1982). I

However, Bradley also recognized the general rule that there isl no duty to control the conduct of third persons to prevent them frontil causing physical harm to others. “Generally, a person does not have s\ duty to control the conduct of another person, who is a potential tortfeasor, so as to prevent that person from harming a third person (.Bradley Center v. Wessner, [supra]) unless ‘(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.’ Restatement, Torts 2d, § 315.” Assoc. Health Systems v. Jones, 185 Ga. App. 798, 801 (1) (366 SE2d 147) (1988).

No special relation existed between Pelletier and Richards or Henry imposing a duty upon Pelletier to control their conduct; nor did any special relation exist between Pelletier and plaintiff, giving the plaintiff a right to protection.

Under some circumstances, a special relation does exist between an employer (in this case Frenchy Community Developer) and an employee which imposes a duty upon the employer to control the employee’s conduct. An employer is liable for torts committed by his servant in the prosecution and within the scope of his business, whether the same are committed by negligence or voluntarily. OCGA § 51-2-2; Worstell Parking v. Aisida, 212 Ga. App. 605, 606 (1) (442 SE2d 469) (1994); Mountain v. Southern Bell Tel. &c. Co., 205 Ga. App. 119 (1) (421 SE2d 284) (1992); Lucas v. Hosp. Auth. of Dougherty County, 193 Ga. App. 595 (1) (388 SE2d 871) (1989); see Aubrey Silvey Enterprises v. Bohannon, 182 Ga. App. 738, 739 (356 SE2d 693) (1987). It is uncontested that the attack by Richards or Henry upon plaintiff was not in the prosecution and within the scope of their employer’s business. Nor do the circumstances exist in which an employer is under a duty to control an employee’s conduct while the employee is acting outside the scope of employment. See Brown v. Trefz & Trefz, 173 Ga. App. 586, 587 (2) (327 SE2d 556) (1985) (claim against employer for tort of employees on alternative theory of negligent hiring and retention); see generally Restatement, Torts 2d, § 317.

Moreover, it is uncontradicted that Pelletier did not observe any physical altercation between Richards or Henry and anyone else, although there is evidence that he observed their general behavior and a confrontation between them and Fred Poteet about the restriction on their drinking. Plaintiffs suggest that his intervention with the police would authorize an inference that Pelletier had knowledge of their criminal behavior. However, Gail Poteet only testified that she told the police that she was not interested in any arrests but that the two men had to leave. The police did not testify. In addition, there is no evidence of any animus by the men against the cab driver before they left the bar; their anger was directed only at the Poteets for a reason unrelated to him. Thus the trial court did not err in ruling that, as a matter of law, it was not reasonably foreseeable to Pelletier that Richards or Henry would attack plaintiff. The criminal act of Richards or Henry is treated as the proximate cause of the injury, superseding any negligence of other defendants. Collie v. Hutson, 175 Ga. App. 672, 673 (1) (334 SE2d 13) (1985).

Decided September 9, 1994

Reconsideration denied October 4, 1994

Lloyd W. Walker, for appellants.

Long, Weinberg,. Ansley & Wheeler, Lance D. Lourie, J. Calhoun Harris, Jr., for appellees.

Judgment affirmed.

Andrews and Johnson, JJ., concur.


author: Smith, Judge.

text:
    A94A1878.
    JACKSON v. THE STATE.
    (448 SE2d 761)
   Smith, Judge.

Jo Lynne Jackson entered a conditional guilty plea to boating under the influence under the procedure outlined in Mims v. State, 201 Ga. App. 277, 278-279 (1) (410 SE2d 824) (1991), on February 10, 1994. She preserved for review the denial of her motion to suppress based on the arresting officer’s lack of an articulable suspicion to detain her. Since we conclude that the officer was authorized by statute to make the stop, we affirm.

The facts are not in material dispute. On the evening in question, Calvin Stewart, a law enforcement officer for the Georgia Department of Natural Resources, was patrolling the waters near Lake Lanier Islands in Hall County, Georgia. At about 11:00 p.m., Corporal Stewart came upon a boat, illuminated it with a spotlight, and noticed “two different registration decals . . . , one Georgia and one Florida.” Although the Georgia registration decal appeared to be current, Corporal Stewart nevertheless decided to stop the boat to see if its Georgia registration was valid. As a result, Stewart discovered that Jackson was boating under the influence. Only the validity of the stop leading to Jackson’s arrest is at issue here. I

OCGA § 52-7-25 (a) provides, in pertinent part, that “[a]ny per-I son empowered to enforce [the general provisions dealing with thel registration, operation, and sale of watercraft] and any rule or regula-I tion adopted pursuant hereto shall have the authority to stop andl board any vessel subject to this article or any such regulation for the purpose of inspection or determining compliance with this article. . . OCGA § 52-7-25 (b) (4) authorizes such officers “[t]o board vessels in use, for purposes of examining any documents and safety equipment. ...” These statutory provisions clearly authorize officers such as Corporal Stewart to make investigatory stops of watercraft for the sole purpose of verifying that the operator has the proper documentation and safety equipment on board. The officer need not suspect wrongdoing before such a stop is permitted under the plain language of OCGA § 52-7-25. Moreover, we find it questionable at best that the statute constitutes impermissible overreaching by the General Assembly. We simply note that the boating public does not necessarily have the same expectation of privacy on regulated waterways as does the motoring public.

Decided September 16, 1994

Reconsideration denied October 4, 1994 —

Leroy W. Robinson, Jr., for appellant.

Jerry Rylee, Solicitor, for appellee.

In any event, Jackson has not challenged the constitutionality of OCGA § 52-7-25, but instead has urged this court to consider her encounter with Stewart under the familiar standard of Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). However, we cannot ignore clear and controlling statutory authority precluding such an analysis. Moreover, this court is without jurisdiction to examine the constitutionality of OCGA § 52-7-25 even if Jackson had properly pursued that course in the trial court. 1983 Ga. Const., Art. VI, Sec. VI, Par. II (1).

Judgment affirmed.

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

       Although still permissible on the date the plea was entered, we reiterate that the pro cedure relied upon by Jackson has since been disapproved as a means of preserving issues fo review in this court. Hooten v. State, 212 Ga. App. 770-775 (1) (442 SE2d 836) (1994).


author: Blackburn, Judge.

text:
    A94A2396.
    WREASE v. THE STATE.
    (448 SE2d 911)
   Blackburn, Judge.

Following a trial by jury, the appellant, Patrick Antonio Wrease, was found guilty on December 7, 1993, of one count of selling cocaine on October 18, 1992, in violation of the Georgia Controlled Substances Act, and was sentenced to life in prison. At that time, he was acquitted of one count of selling cocaine on October 12, 1992, and of possession of a firearm by a convicted felon on January 12, 1993. On appeal, he asserts that the evidence was insufficient to support his conviction and that his trial counsel provided ineffective assistance. We disagree and affirm his convictions.

The evidence viewed in the light most favorable to support the jury’s verdict shows that on October 18, 1992, during an undercover investigation in which an informant was used, both the informant and his automobile had been searched for drugs by the police prior to the incident and found to have none. A transmitter and a recording device had been placed on the informant. In pursuit of the investigation, the informant was in his automobile when he met Hall and Wrease, in Wrease’s automobile which Wrease was driving. The informant told Wrease and Hall that he wanted cocaine, and Wrease instructed him to turn his vehicle around and drive to the end of the street. At the end of the street, Hall exited Wrease’s automobile and proceeded behind Wrease’s home where he retrieved the crack cocaine. Hall gave the informant the crack cocaine and returned to Wrease’s automobile. The informant then met up with the police investigator and turned the subject drugs over to him. Wrease was subsequently arrested, charged and tried for selling cocaine. In addition to live testimony, the audiotape recordings of the cocaine sale were admitted into evidence and played before the jury at trial.

1. Wrease asserts that the evidence produced at trial did not show that he personally conducted the sale of cocaine and his mere presence at the scene is insufficient to support a conviction. However, “[t]he jury was instructed regarding parties to a crime, OCGA § 16-2-20, and we find the evidence presented at trial more than sufficient to have authorized the jury to find [Wrease] guilty of being a party to the sale of cocaine.” (Citations omitted.) Stevens v. State, 210 Ga. App. 355, 356 (436 SE2d 82) (1993). See also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In four separate enumerations of error, Wrease maintains that his trial counsel failed to provide effective assistance. In two of the enumerations, Wrease alleges errors concerning evidentiary matters involving the possession charge for which he was acquitted. He further asserts that trial counsel was deficient in failing to move for a severance of the offenses and in failing to object to the admission oi allegedly unintelligible audiotape recordings of his conversations wit! the confidential informant during the drug transaction. I

“Defendants seeking to show that their counsel was ineffective! must show: 1) their counsel’s performance was deficient and 2) . . I the deficient performance prejudiced the defense. The failure to esl tablish either element of the test will result in the denial of defendH ant’s claim of ineffective counsel. A trial court’s finding that a defendM ant has not been denied effective assistance of trial counsel will bill affirmed unless clearly erroneous. There is a strong presumption thatt trial counsel’s performance falls within the wide range of reasonablill professional assistance, and that any challenged action by trial counH sel might be considered sound trial strategy.” (Citations and punctuation omitted.) Gibbs v. State, 213 Ga. App. 117, 118 (1) (443 SE2d 708) (1994).

Decided September 7, 1994

Reconsideration denied October 4, 1994 —

Harrison, Harrison & Llop, Steven M. Harrison, for appellant.

James L. Wiggins, District Attorney, Russell P. Spivey, Assistant District Attorney, for appellee.

The trial court’s finding on the effectiveness of Wrease’s trial counsel is not clearly erroneous. Trial counsel’s decision not to file a motion to sever is a matter of trial tactics and does not require a finding that counsel was ineffective. See Warren v. State, 197 Ga. App. 23 (1) (397 SE2d 484) (1990). In addition, the assistance that trial counsel rendered on the possession charge resulted in an acquittal. See O’Neal v. State, 211 Ga. App. 741 (4) (440 SE2d 513) (1994). Moreover, the fact that the audiotape recordings of the cocaine sale were inaudible did not make the tapes inadmissible. Guess v. State, 264 Ga. 335 (2) (443 SE2d 477) (1994). Therefore, an objection to their admission would not have been proper.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A94A0926.
    CHARMING SHOPPES OF DELAWARE, INC. et al. v. PARRISH et al.
    (448 SE2d 781)
   Smith, Judge.

Charming Shoppes of Delaware, Inc., and Charming Shoppes, [nc. appeal from the trial court’s denial of their motion to set aside a default judgment. We conclude that the motion should have been ranted and reverse.

Plaintiffs Tammy and Reginald Parrish filed a personal injury ac-ión against a defendant styled “Charming Shoppes, c/o Registered gent CT Corporation System,” alleging that Tammy Parrish fell on he premises of Charming Shoppes. The uncontradicted evidence in he record shows that “Charming Shoppes, Inc.” is the ultimate par-mt corporation of Fashion Bug No. 2028, the corporation which eased and occupied the premises in question. However, Charming hoppes, Inc. is not registered to do business in Georgia and has no egistered agent for service in Georgia. A separate and distinct corpo-ation, Charming Shoppes of Delaware, Inc., does business in Georgia nd designates CT Corporation System as its registered agent, but it as no ownership interest in the premises on which Parrish allegedly fell.

CT Corporation System, which received a copy of the summons and complaint, apparently forwarded the papers to Charming Shoppes, Inc. The summons and complaint were delivered to a mailroom employee of Charming Shoppes, Inc. who was not authorized to accept service of process and did not forward them to anyone authorized to handle them. Upon expiration of the time for answer, the Parrishes sought and obtained entry of default judgment against “defendant, Charming Shoppes.”

Charming Shoppes, Inc. filed a motion to set aside the judgment. The trial court declared that Charming Shoppes, Inc. was not a proper party to the case and determined its motion to be “moot” because it was no longer a party. The court then amended the default judgment to substitute Charming Shoppes of Delaware, Inc. as the defendant.

“[OCGA § 9-11-60] (d) and (f) provide[s] that a judgment is subject to being set aside at any time by a motion premised upon a lack of jurisdiction over the person. Further, unless a party has waived lawful service of process (which our present appellant[s have] not), such service is essential to give a court jurisdiction over that party’s person. [Cit.]” Benton v. Modern Finance &c. Co., 244 Ga. 533, 534 (261 SE2d 359) (1979).

Service of process was not perfected on Charming Shoppes, Inc., because as a foreign corporation not doing business in Georgia it should have been served under the provisions of OCGA § 14-2-504. While CT Corporation System acts as registered agent for Charming Shoppes of Delaware, Inc., that entity was not named as a defendant. The substitution of another corporation as defendant and judgment debtor imposes judgment upon an entity that was not named as a defendant in the original action.

In Ciprotti v. United Inns, 209 Ga. App. 457 (433 SE2d 585) (1993), appellant brought suit against “ ‘United Inns, Inc. d/b/i Northside Inns, Inc. d/b/a Holiday Inn,’ ” and later amended thi complaint to change the defendant’s name to “ ‘United Inns, Inc a/k/a United Inns, Inc. of Tennessee d/b/a Northside Inns, Inc. d/b/i Holiday Inn Atlanta 1-285.’ ” Process was served on CT Corporatioi System, which was the registered agent for United Inns, Inc. of Ten nessee and Northside Inns, Inc. but not for United Inns, Inc. Th< I trial court dismissed the complaint for insufficiency of service of pro I cess, and this court affirmed. I

As in Ciprotti, service of process in this action was insufficien I because the named defendant was never properly served. Howevei I here the corporate defendant against which the Parrishes eventual! I sought and obtained a default judgment was never named in the com I plaint, even in the limited sense of “a/k/a” or “d/b/a.” “[S]ervice o: I the proper party is the responsibility of the plaintiff, not the individual accepting service.” 209 Ga. App. at 458. Investigation would have revealed the actual tenant of the property, the identity of its parent corporation, and the appropriate method of service. Had the Par-rishes intended to name the Georgia corporation they now assert to be the proper defendant, they could have obtained the full and correct corporate name from the files of the Secretary of State. Moreover, a plaintiff has an obligation to amend to name the proper corporate entity. “[A]ppell[ant] was the only corporation actually named as a party defendant, and appellfant] was not properly served.” 209 Ga. App. at 459.

Decided October 4, 1994.

Swift, Currie, McGhee & Hiers, Jonathan M. Engram, Eric D. JffJiller, for appellants.

Hillman J. Toombs, for appellees.

This is not a case of mere misnomer of a party. “Correction of a misnomer involves no substitution of parties and does not add a new and distinct party.” (Citations and punctuation omitted.) Northgate Village Apts. v. Smith, 207 Ga. App. 479, 481 (2) (428 SE2d 381) (1993). In contrast, here a new and distinct corporate entity was substituted for the original defendant, without amendment of the complaint to add a party or service upon the new defendant after amendment. Moreover, the substitution replaced a possible party in interest with an entity which had no factual connection with the circumstances giving rise to the cause of action.

Nor is this a case of corporations shown to be so closely related by ownership or interlocking assets as to justify service on an “alter ego.” The Parrishes did not present evidence that would constitute “piercing the corporate veil” or a showing that “Charming Shoppes,” “Charming Shoppes, Inc.” or “Charming Shoppes of Delaware, Inc.” were alter egos of one another. 209 Ga. App. at 458-459.

Plaintiffs should not obtain a default judgment based on an apparent failure to investigate fully and the resulting ambiguity created by naming the wrong defendant or improperly serving the named defendant. The trial court erred in denying appellants’ motion to set aside the default judgment.

Judgment reversed.

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


author: McMurray, Presiding Judge.

text:
    A94A0969.
    GEORGIA RECEIVABLES, INC. v. MURRAY.
    (448 SE2d 783)
   McMurray, Presiding Judge.

Georgia Receivables, Inc. (plaintiff) brought this contract action against Thomas M. Murray (defendant), styling itself as “Assignees to Fulton Federal Savings Bank” and alleging that defendant was indebted to plaintiff in the principal amount of $10,435.13 plus interest, attorney fees and court costs. Service of process was made on defendant at his home in Riverview, Florida, by leaving the summons and complaint with his wife. Defendant answered pro se alleging that he “does not now, nor has he for many years, resided in the jurisdiction of [the State Court of Cobb County, Georgia].” He further alleged that he “has no current knowledge of, record of or written executed instrument, evidencing this obligation.” Plaintiff subsequently moved for summary judgment. The evidentiary basis for plaintiff’s motion was the alleged failure of defendant to answer requests for admissions. Defendant filed no response to this motion nor did he seek to withdraw any deemed admissions. Nevertheless, the trial court concluded that “there remains a genuine issue as to jurisdiction and . . . [denied plaintiff’s] Motion for Summary Judgment.” Plaintiff’s application for interlocutory appeal was granted by this court, and this appeal followed. Held:

If defendant executed a promissory note in the county where this suit was filed, the fact that he subsequently moved to Florida would not preclude the trial court’s “exercise [of] personal jurisdiction over [defendant] pursuant to the provisions of Georgia’s Long Arm Statute, OCGA § 9-10-91 (former Code Ann. § 24-113.1). See North Peachtree 1-285 Prop. v. Hicks, 136 Ga. App. 426 (1) (221 SE2d 607) (1975).” Davis v. Peoples Bank of St. Marys, 168 Ga. App. 383 (1) (308 SE2d 871). However, the record as transmitted to this court by the clerk of the trial court contains no copy of the agreement sued upon or the assignment under which plaintiff stakes its claim. Nor does it contain the requests for admissions supposedly submitted to defendant or proof of service, despite the recitals of counsel in an affidavit submitted in support of the motion for summary judgment. “The burden was on [plaintiff], as the movant for summary judg-| ment[,] to show that no genuine issue of material fact remained.” Walker v. United Svcs. Auto. Assn., 205 Ga. App. 693, 694 (423 SE2d 299). In the case sub judice, the posture of the existing record does not satisfy this burden. Accordingly, the grant of plaintiff’s application for interlocutory appeal is vacated as improvidently granted and the appeal is dismissed. See Dumas v. Smith, 170 Ga. App. 703 (319 SE2d 136). See also Evanoff v. Evanoff, 262 Ga. 303 (418 SE2d 62). I

Appeal dismissed.

Pope, C. J., and Smith, J., concur.

Decided October 4, 1994.

Frederick J. Hanna, MaryTheresa Clark, for appellant.

Thomas M. Murray, pro se.


author: McMurray, Presiding Judge. Pope, Chief Judge,

text:
    A94A1041.
    BROWN v. THE STATE.
    (449 SE2d 136)
   McMurray, Presiding Judge.

Defendant was charged via indictment with robbery by force in that, “with intent to commit theft, [he] did take property of another, to-wit: cash money, less than $500.00, the property of Lauri Ferry, from the immediate presence of Lauri Ferry by use of force.” The evidence adduced at a jury trial shows the following: The victim, Ms. Ferry, works for the Atlanta Journal & Constitution. At 2:30 a.m. on November 9, 1991, she was changing newspapers at a coin-operated dispenser when she was approached by a man she identified as defendant. Defendant asked the victim “ ‘Have you got any change, man?’ ” The victim hurried to her van but “before [she] could get the door shut, [defendant] had the door yanked open; and he was over on top of [her].” They struggled and defendant “reached up, and he grabbed [the victim’s] face trying to put his hand over [her] mouth . . . [as she was] struggling and screaming and hollering.” When the victim tried to blow the van’s horn, defendant “tried to put his hands around [her] neck, and he started trying to squeeze [her].” Defendant told the victim “he was going to cut [her] f-throat if [she] didn’t shut up.” The victim “thought he had a knife,” and knocked a shiny object from defendant’s hand. After defendant rummaged through the victim’s empty leather bag, he “reached over and started feeling again. [The victim was] fighting and screaming.” Defendant then grabbed a canvas money bag containing $236 in rolled coins from behind the driver’s seat and fled. Police recovered from the vic-jtim’s van a large set of nail clippers with a blade extension on it. As a result of the scuffle, the victim sustained scratches on her face.

The jury found defendant guilty. His motion for new trial was denied and this appeal followed. Held:

1. In his first and sixth enumerations of error defendant challenges the sufficiency of the evidence. Specifically, he argues that the uncontradicted evidence shows that no force was used to effectuate the taking of the canvas coin bag. He also argues that there was no ¡evidence of an intent to steal.

| “ ‘Force implies actual personal violence, a struggle and a per-tonal outrage. If there is any injury done to the person, or if there is ¡any struggle by the party to keep possession of the property before it is taken from him, there will be sufficient force or actual violence to constitute robbery. . . .’ Long v. State, 12 Ga. 293.” Henderson v. State, 209 Ga. 72, 73 (1), 74 (70 SE2d 713). In the case sub judice, there is evidence of just such “actual personal violence, a struggle and a personal outrage” committed upon the person of the victim which preceded defendant’s non-consensual taking of the canvas bag containing $236 in rolls of coins. “ ‘ “(T)he presence of valuables inside the premises can support an inference of intent to steal (cit.), particularly when no other motive is apparent. (Cit.)” ’ Green v. State, 158 Ga. App. 321 (1) (279 SE2d 763) (1981).” Miller v. State, 208 Ga. App. 547 (1) (430 SE2d 873). The evidence is sufficient to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of robbery by force as alleged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Dutton v. State, 199 Ga. App. 750 (406 SE2d 85). Compare Hicks v. State, 232 Ga. 393, 402-403 (207 SE2d 30). In Hicks, the Supreme Court of Georgia reversed a conviction on a count for armed robbery where the only taking was accomplished while the victim was asleep and the only violence displayed was subsequent to that taking. Compare also Smith v. State, 193 Ga. App. 208 (1) (387 SE2d 419). The trial court did not err in denying defendant’s motion for new trial on the general grounds.

2. In his second enumeration, defendant contends the “trial court erred in requiring [him] to proceed in the presentation and [argument] of his Motion For New Trial with less than twenty-four hours to review the trial transcript of proceedings.” Relying on Lowrance v. State, 183 Ga. App. 421 (1) (359 SE2d 196), he argues that this “was violative of his due process rights. . . .”

The record reveals that defendant’s motion for new trial as originally filed enumerated only the general grounds. The trial court con- I tinued the hearing date on this motion indefinitely because the transcript was not prepared and protected defendant’s right to “amend and perfect his motion. . . .’’At the hearing on the motion for new trial, defendant was represented by the same attorney who tried the case three-and-one-half months earlier. Counsel had received the transcript of some 200 pages only the day before and objected to proceeding with the hearing due to “insufficient time to have properly reviewed the transcript and prepare citations and arguments on the motion for new trial.” The following then transpired: “[DEFENSE COUNSEL]: The defendant — our objection is this, your Honor. I have gone through the transcript, hastily. Less than twenty-four hours to prepare and I have some argument to offer the Court, if the Court insists that we proceed. [THE COURT]: We will proceed in this manner. I will allow you to argue today on points the State [has] raised. You may amend your motion in the next weeks time and then necessity, if you feel the necessity for alleging other grounds that have not been alleged, you may do so within that weeks time period by amended motion and I will not rule on the matter until next Tuesday.” After further discussion, the trial court summarized: “[THE COURT]: Well, I think that would be a better way to proceed and let you argue today and not make a ruling on it until next Tuesday and will give you the opportunity to review the transcript at your leisure to come up with any other grounds if you chose to do so.” Defense counsel replied: “All right,” and proceeded to argue such points as he had prepared. The record contains no amendment to the motion to raise additional grounds.

“In all cases, the party making an application for a continuance must show that he has used due diligence.” OCGA § 17-8-20. “ ‘The grant or denial of a continuance is within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of an abuse of discretion.’ Wilson v. State, 158 Ga. App. 174 (1) (279 SE2d 345).” Hay v. State, 166 Ga. App. 591, 592 (305 SE2d 35). In the case sub judice, the trial court gave defendant a week to review the transcript and amend his motion to present additional grounds. This ruling is the grant of substantially all the relief defendant requested. See Staples v. State, 209 Ga. App. 802, 804 (4) (434 SE2d 757). Moreover, no additional grounds have been proffered, either in the trial court or on appeal. “In Ford v. State, 164 Ga. App. 620 (298 SE2d 327) . . . this court noted: ‘No'showing having been made as to how additional time would have benefited [defendant] or how lack of more time harmed him, we find no abuse of discretion [in the ruling of the trial court directing defendant to proceed with such argument as he had prepared while leaving the record open for additional grounds once counsel had a chance to review the transcript in depth].’ ” Donnelly v. State, 166 Ga. App. 694 (306 SE2d 15). Nor do we find any due process violation. Staples v. State, 209 Ga. App. 802, 804 (4), supra. Defendant’s reliance on Lowrance v. State, 183 Ga. App. 421 (1), supra, is misplaced for that case is not binding precedent but is physical precedent only. Georgia Court of Appeals Rule 35 (b). This enumeration is without merit.

3. Next, defendant contends the trial court erred in admitting two prior convictions in aggravation of punishment. These convictions are based upon guilty pleas. Defendant argues that the plea forms indicate defendant is illiterate and that one guilty plea was entered into without the assistance of counsel while the other plea is improperly executed.

Defendant stipulated that the State gave proper notice of its in-Itent to introduce five prior misdemeanor convictions. Contrary to defendant’s assertion, however, the record reflects that, out of an “abun-Idance of caution since [defendant] cannot read and write and since he Iwas not represented by counsel, [the trial court did] not admit or take into consideration State’s Exhibit No. 9,” which was a guilty plea to misdemeanor simple battery. This ground of the enumeration is without merit.

The other conviction objected to is a guilty plea to an accusation of criminal trespass. Defendant contends this plea was erroneously admitted because it was improperly executed. In this regard, defendant shows that he entered a guilty plea by signing below rather than above the line labelled “Defendant” on the jacket of the accusation. However, the body of the accusation recites that the disposition was a “NEGOTIATED PLEA BETWEEN STATE AND DEFENSE COUNSEL WITH COURT APPROVING SAME.” A separate form captioned “PLEA OF GUILTY: ACKNOWLEDGMENT AND WAIVER OF RIGHTS” is signed by defendant and indicates that his guilty plea was knowingly and voluntarily entered into in open court, upon the advice and assistance of counsel. We agree with the trial court that the misplacement of defendant’s signature on the accusation is a mere clerical irregularity which affected no substantial right of defendant. Accordingly, the trial court did not err in admitting and considering this plea in aggravation of sentence. See, e.g., Smith v. State, 193 Ga. App. 208, 211 (6), supra.

4. In his fourth enumeration, defendant contends the trial court erred in refusing to give seven requests to charge “and in failing to adequately charge the jury as to the use of force and intent to steal. ...”

“The failure to give requested instructions in the exact language requested, where the charge given substantially covers the same principles, is no longer a ground for new trial. Jackson v. State, 225 Ga. 553, 561 (170 SE2d 281); Hardwick v. Price, 114 Ga. App. 817, 821 (152 SE2d 905).” Young v. State, 226 Ga. 553, 556 (5) (176 SE2d 52). In the case sub judice, the trial court’s charge covered the substance of every written request defendant complains of on appeal. Specifically, the charge as given addressed the State’s unalterable burden of proof; the definition of a reasonable doubt; that the indictment is not evidence; the tests employed in everyday life in judging the credibility of the witnesses; the definition of a crime, including the rule that an accused will not be presumed to act with criminal intent; that the accused is not required to prove his innocence; and an instruction on alibi which is defendant’s request nearly verbatim. Since the charge as given included full and correct statements of all the principles in defendant’s written requests, the trial court did not err in using the! pattern charges (see Council of Superior Court Judges, Suggested Pattern Jury Instructions, Vol. II, 2d ed.) in preference to the language requested. See Wright v. State, 211 Ga. App. 474, 477 (4) (440 SE2d 27). Defendant’s additional contention that the trial court erred] by failing to charge that force must be employed contemporaneously! with the taking is without merit. The trial court charged the language of OCGA § 16-8-40 (a) (1). If defendant wished to have additional instructions so as to clarify the interplay among applicable legal principles, he should have made a timely, written request for such additional instructions. “No such written request was made and [defendant’s] contention that the charge as given was [inadequate] is without merit.” Yearwood v. State, 198 Ga. App. 389, 390 (3) (401 SE2d 558).

5. Defendant contends, in his fifth enumeration, the trial court erred in denying him a full and separate restitution hearing.

“[A] sentence imposing restitution in the absence of such a hearing wherein such factors as are enumerated in Code Ann. § 27-3010 [now OCGA § 17-14-10] are considered by the trial court cannot stand.” Patterson v. State, 161 Ga. App. 85, 86 (5) (289 SE2d 270). In the case sub judice, the trial court imposed at sentencing restitution in the amount of the $236 taken from the victim. However, there is nothing in the record to indicate the trial court’s consideration of the factors enumerated in OCGA § 17-14-10. “Accordingly, we must reverse that portion of appellant’s sentence which imposes restitution as a condition of [probation] and remand the case to the trial court with direction that a hearing on the issue of restitution be held at which Code Ann. § 27-3009 [now OCGA § 17-14-9] and the factors in Code Ann. § 27-3010 [now OCGA § 17-14-10] are to be considered and we further direct that the written finding required by Code Ann. § 27-3008 [now OCGA § 17-14-8] be made.” Patterson v. State, 161 Ga. App. 85, 86 (5), supra. Accord Murphy v. State, 182 Ga. App. 791, 792 (5), 793 (357 SE2d 147).

Judgment as to conviction affirmed. Judgment as to sentence affirmed in part and reversed in part and case remanded with direction.

Smith, J., concurs. Pope, C. J., concurs specially.

Pope, Chief Judge,

concurring specially,

I fully concur with the majority opinion. With respect to the restitution issues discussed in Division 5,1 write separately only to point out that while the amount of the victim’s damages was clearly established at trial, “[i]t is not sufficient for the trial judge to consider only the amount of the victim’s damages. [Cit.] Pursuant to OCGA § 17-14-10, the court must also consider other factors, including ‘(1) The present financial condition of the offender and his dependents; (and) 1(2) The probable future earning capacity of the offender and his dependents. . . .’” Slater v. State, 209 Ga. App. 723, 725 (4) (434 SE2d 547) (1993). In the absence of the required hearing, the trial court was [unable to consider these other factors. Thus, this case must be re-pnanded as held by the majority.

Decided October 4, 1994.

John P. Howell, for appellant.

Alan A. Cook, District Attorney, Jeff B. Blandford, Anne M. Templeton, Assistant District Attorneys, for appellee.


text:
    A94A1045.
    In the Interest of J. M. G., a child.
    (448 SE2d 785)
   McMurray, Presiding Judge.

A hearing on a petition to terminate the parental rights of the parents of J. M. G. was conducted shortly after her second birthday before the Juvenile Court of Douglas County. The juvenile court entered an order terminating parental rights and the father alone appeals, raising several enumerations related to the conduct of the hearing. Held:

1. The first two enumerations of error complain of the admission of evidence concerning the living conditions and economic circumstances of the child’s foster parents who have expressed an interest in adopting the child. Appellant maintains that this evidence should have been barred as irrelevant, and indeed it was not relevant to the first portion of the test under OCGA § 15-11-81 (a), the determination of whether there was clear and convincing evidence showing parental misconduct or inability. However, the evidence in question was relevant to the second part of the statutory test, a determination of whether termination of the parental rights of the natural parents was in the best interest of the child, since it shows the merits of an alternative placement available to the child. As the juvenile court stated this distinction in overruling appellant’s objection, the record does not suggest any improper consideration of the evidence.

Nor does the admission of this evidence amount to sanctioning a termination of parental rights solely due to a relative lack of wealth on the part of the natural parents. Compare Shover v. Dept. of Human Resources, 155 Ga. App. 38 (270 SE2d 462). Also, it should be noted that such evidence concerning alternative placements available to children does not inevitably support termination of the parental rights of the natural parents.

2. The juvenile court did not abuse its discretion in finding that! appellant’s carelessness contributed significantly to a near drowning! of a separate child who is the half sibling of J. M. G. and the biologil cal child of appellant. While appellant maintains that this finding waJ not supported by the evidence, such is not correct. I

The factual finding appears to be based in part on appellant’! testimony that: “We wasn’t paying no attention to what he was dol ing.” While appellant went on to attempt to attribute responsibility for the incident to his then wife who was also present and who appellant maintains left a bucket of water accessible to the two-year-old child, the juvenile court was authorized to view appellant’s initial admission as having greater probative value. In any event, appellant was present and must have been aware that the child was unattended immediately prior to falling into the water bucket.

3. The fourth enumeration of error contends that the juvenile court erred in concluding that appellant wilfully and wantonly failed to support the child as contemplated by OCGA § 15-11-81 (b) (2). Appellant was subject to a court order to pay $20 a week for the support of his child and for a period greater than one year made no payment. While there was evidence as to fluctuations in appellant’s income, since no payments were made even in weeks when appellant made several hundred dollars we find the juvenile court’s finding to be authorized by the evidence. We also reject the unsupported supposition that appellant’s obligation to pay child support terminated with the filing of the petition for termination of parental rights.

4. The fifth enumeration of error also challenges the juvenile court’s finding of fact, that appellant’s misconduct and inability to care for the child is likely to continue or will not likely be remedied. While appellant concedes there is evidence of his present inability to care for his daughter, he relies upon other evidence which suggests that he has the ability to learn to care for her. However, this factual issue was determined against appellant in that the juvenile court found that appellant “lacks the capability to learn sufficient skills to enable him to care for the subject child in a sufficient manner to ensure even reasonably minimal health and safety.” This conclusion was supported by clear and convincing proof consisting of evidence as to the lack of care rendered by appellant and the child’s mother before custody was removed, by evidence of appellant’s past unwillingness and lack of motivation to acquire the skills necessary for care of the child, and by evidence of appellant’s continuing unwillingness to provide any support for the child. In determining the likely course of conduct in the future, the juvenile court may look to the past conduct of the parent. In the Interest of J. M. C., 201 Ga. App. 173, 174 (410 SE2d 368). See also In re L. A.; P. G.; J. G.; A. A., 166 Ga. App. 857 (305 SE2d 636).

I 5. In his sixth and final enumeration of error, appellant contends ¡that the juvenile court abused its discretion in ruling that there was a ¡medically verifiable deficiency of the appellant’s physical, mental, or femotional health of such duration or nature as to render the parent ¡unable to provide adequately for the physical, mental, emotional, or Inoral condition and needs of the child. See OCGA § 15-11-81 (b) (4) IB) (i). However, expert testimony was introduced concerning a psychological evaluation of appellant which shows that he is mildly retarded with a full scale IQ of 68, and was diagnosed as having an adjustment disorder with depressed mood, and exhibited a schizoid personality. The psychologist opined that appellant lacked the ability to care for his daughter alone, noting a poor self concept as exhibited by his lack of motivation and poor personal hygiene. The absence of any remedy for these circumstances was also noted. Indeed, appellant was limited in his ability to even care for himself, being dependent upon others to a great degree for the necessities of life and not being capable of functioning independently. The juvenile court’s findings that there was present clear and convincing evidence of parental misconduct or inability, and the conclusion that the factor stated in OCGA § 15-11-81 (b) (4) (B) (i) was applicable, were authorized by the evidence. In the Interest of R. E. C., 187 Ga. App. 35, 39 (369 SE2d 323).

Decided October 4, 1994.

Jerry F. Pittman, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Teresa E. Lazzaroni, Assistant Attorney General, M. Ellene Welsh, Robert A. Kunz, James H. Lewis, for ap-pellee.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


text:
    A94A1222.
    PENNY PROFIT FOODS, INC. v. McMULLEN et al.
    (448 SE2d 787)
   McMurray, Presiding Judge.

Blanche Bagley McMullen and Marie Bagley Roper are the co- \ executrices of the estate of the late Garland C. Bagley. A provision in | Garland Bagley’s will purportedly forgave certain debts but the For-syth County Superior Court refused to probate this will. Seeking to I collect on a promissory note owed by Penny Profit Foods, Inc., I (“PPF”) to Garland Bagley, the executrices commenced foreclosure! on certain realty securing that debt. After PPF’s petition to enjoin! foreclosure was denied by the superior court, the parties engaged ini settlement discussions. Subsequently, the executrices moved to en-| force an alleged settlement agreement.

In support of their motion to enforce settlement, the executricesl introduced a handwritten document captioned: “Penny Profit Foods Inc. et al v. McMullen & Roper, co-admini ... of Bagley” and whicl recites the following: “(1) Check to Forsyth Forum for $192 — Toda

. . . (2) Dismissal of Appeal... (3) Complete Release of Estate . . . (4) Full payment in amount of $40,810.33 within 30 days. . . . Agreed to this 6th day of April, 1993.” This document is signed by PPF’s attorney, Lynwood D. Jordan, and by PPF via Bobby Trammel as its president. The executrices also submitted an unsigned typed draft of a formal settlement agreement incorporating the terms noted on the signed handwritten document and containing the further recital that PPF agrees to those specified promises “for and in consideration of the agreement of [McMullen and Roper] to forego the foreclosure sale on April 3, 1993. . . .” Mr. Jordan testified that “the understanding and the conversations between Mr. Shinall[, counsel for the executrices,] and I was that they would not foreclose that morning. That was the morning of the foreclosure, if my memory is correct. They would not foreclose that morning, and in return Penny Profit Foods would do these things [itemized in the handwritten document].” The estate did not exercise its immediate right to foreclose. PPF paid the Forsyth Forum $192 but has never dismissed its appeal in the related probate case nor has it released the estate or paid the $40,810.33.

The trial court granted the motion to enforce settlement, concluding that the attorneys for the parties did not dispute the existence of an oral agreement to settle and that the terms of the agreement were memorialized in the handwritten document signed by counsel and PPF. Consequently, the trial court ordered that PPF’s appeal from the probate case be dismissed and further ordered that the estate of Garland C. Bagley be released from any claims of PPF. PPF filed a notice of appeal to the Supreme Court of Georgia, which transferred the case to the Court of Appeals of Georgia. Held:

1. The trial court was not deprived of jurisdiction to consider this motion to enforce settlement due to the filing of a notice of appeal in the related probate case between the same parties, where all costs in the trial court had not been paid. OCGA § 5-6-46 (a); Chappelaer v. General GMC Trucks, 130 Ga. App. 664, 665 (1) (204 SE2d 326). PPF’s fifth enumeration is without merit.

2. In its first and second enumerations, PPF contends the trial court erred holding that the parties entered into a “binding settlement agreement” and “in finding that there was a meeting of the minds between the parties as to the terms of any settlement[,]” arguing that PPF “never understood that the pending legal actions between them had been settled.”

“Under Georgia law an attorney of record has apparent authority to enter into an agreement on behalf of his client and the agreement is enforceable against the client by other settling parties. Stone Mountain Confederate Monumental Assn. v. Smith, 170 Ga. 515 (153 SE 209) (1930)[.]” Brumbelow v. Northern Propane Gas Co., 251 Ga. 674 (2) (308 SE2d 544). “Ordinarily, for an attorney to bind his client to a settlement agreement where there is a dispute as to terms, the agreement must be in writing. OCGA § 15-19-5 (Code Ann. § 9-605). This requirement of a writing goes to the certainty that an agreement exists and to the certainty of the terms of the agreement, not to the question of the consent of the client to the agreement. The writing which will satisfy this requirement ideally consists of a formal written agreement signed by the parties. However, letters or documents prepared by attorneys which memorialize the terms of the agreement reached will suffice.” Brumbelow v. Northern Propane Gas Co., 251 Ga. 674 (2), 676, supra. A party’s “denial that [an] agreement was reached is, however, immaterial . . . where it is undisputed that the attorney for the party denying [the] agreement communicated acceptance of the settlement offer... Brumbelow v. Northern Propane Gas Co., 169 Ga. App. 816-817 [(2)] (315 SE2d 11) (1984).” Stone v. King, 196 Ga. App. 251, 252 (2) (396 SE2d 45). In the case sub judice, PPF’s attorney of record, Mr. Jordan, did not dispute the existence of a settlement agreement or terms thereof. Consequently, the trial court correctly concluded that the oral settlement agreement as made between the attorneys and memorialized by the handwritten document rendered PPF’s alleged lack of consent irrelevant to the existence and terms of any such agreement. See Brumbelow v. Northern Propane Gas Co., 169 Ga. App. 816, 817 (2), supra. Furthermore, in the case sub judice, since the existence and terms of this oral settlement agreement are not disputed by the attorneys, that settlement agreement is enforceable and “the client is bound by its terms even in the absence of a writing or detrimental reliance on the part of the opposite party.” Brumbelow v. Northern Propane Gas Co., 251 Ga. 674 (2), 676-677, supra. Compare LeCroy v. Massey, 185 Ga. App. 828, 829 (366 SE2d 215), where “[t]hree of the six attorneys involved swore that there was a settlement agreement [and] three swore that there was not.”

3. PPF’s fourth enumeration is without merit. The alleged failure of the executrices to file a copy of any dismissal of the appeal to the Supreme Court of Georgia in the related probate case with the clerk of that court in compliance with Georgia Supreme Court Rule 13 is not a good ground for refusing to enforce this settlement agreement. The estate performed its part of the bargain when it refrained from enforcing its immediate right of foreclosure. It would permit a gross fraud on the estate to allow PPF to repudiate its bargain after such detrimental reliance. Stone Mountain Confederate Monumental Assn., 170 Ga. 515, 523, supra.

4. PPF’s remaining six enumerations have been considered. PPF’s third enumeration is rendered moot by our holding in Division 2. Enumerations six through ten, regarding the validity of Garland C. Bagley’s last will, have been rendered moot by the transfer of this appeal by the Supreme Court of Georgia to the Court of Appeals of Georgia.

Decided October 4, 1994.

Johnson & Montgomery, Harmon W. Caldwell, Jr., R. Scott Berryman, for appellant.

John M. Shinall, for appellees.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


author: Ruffin, Judge.

text:
    A94A1287.
    RAMSEY v. THE STATE.
    (448 SE2d 790)
   Ruffin, Judge.

Gary Ramsey was convicted by a jury of child molestation (OCGA § 16-6-4) and sentenced to 20 years’ imprisonment. This appeal follows the trial court’s denial of the appellant’s motion for new trial.

The appellant was charged with fondling the breasts and vagina of his stepdaughter, a child under the age of 14. The State filed a timely motion to introduce evidence of similar acts of child molestation by the appellant as well as a prior conviction for sodomy in which the victim was a child under the age of 14. The State also listed the victims expected to testify as to the prior similar acts but stated that specific locations and dates of the acts were unknown.

At a hearing before trial, the prosecutor stated that one of the appellant’s brothers, a cousin, two nieces and two nephews had indicated that during their childhoods the appellant had fondled them and, in some cases, engaged them in sexual intercourse and/or sodomy. The substance of the testimony from four of the prior victims was first made known to the state during a brief recess in the hearing and immediately made known to the appellant. The trial court found the prior acts were sufficiently similar to the charged offense to be probative of the appellant’s bent of mind, and allowed the State to introduce evidence of prior acts of molestation committed by the appellant when he was over the age of 14.

At trial, the appellant’s first cousin, Diane Foster, testified that the victim of the offense on trial told her that “her daddy [the appellant] had touched her private parts in the trailer that they’d lived in [sic] town. They were on the couch.” The witness also testified that the appellant had sexual intercourse with her numerous times when she was between the ages of 12 and 14. One of the appellant’s brothers and four nieces and nephews testified to the appellant’s acts of fondling, sodomy and attempted intercourse committed against them as children aged three to fourteen. Russell Ramsey, another brother of the appellant, testified that he had seen the appellant go into the bathroom to give the victim a bath at their parents’ house, and on another occasion he heard the appellant make lewd comments in her presence about the victim’s developing breasts and pubic hair.

The victim testified that the appellant had never touched her improperly and that the allegations were “a bunch of lies.” However, the sexual abuse investigator for the Department of Family & Children Services testified, based on her experience and training, that the victim’s behavior and recantation of her allegations are consistent with the child abuse accommodation syndrome.

1. The appellant enumerates as error the general grounds and the denial of his motions for a directed verdict of acquittal and for new trial. He argues that a directed verdict was demanded because the State presented no direct evidence of the charged offense and the hearsay evidence of Diane Foster bore insufficient indicia of reliability for admission under OCGA § 24-3-16. We reject the appellant’s assertion that a directed verdict of acquittal was warranted.

“A directed verdict of acquittal in a criminal case is authorized only where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or ‘not guilty.’ ” (Citations and punctuation omitted.) Clark v. State, 207 Ga. App. 50, 51 (1) (427 SE2d 43) (1993). The State presented the victim’s out-of-court statement to Diane Foster as substantive evidence of the offense charged pursuant to OCGA § 24-3-16. Examination of the record shows that the appellant raised no objection at trial to the admission of the statement on the grounds that the indicia of reliability were insufficient. Thus we will not address that argument made for the first time on appeal. Hurst v. State, 198 Ga. App. 380 (401 SE2d 348) (1991). See generally Brinson v. State, 191 Ga. App. 151, 152 (3) (381 SE2d 292) (1989).

Although the evidence was conflicting and depended largely on an assessment of the victim’s credibility and other testimony regarding the child sexual abuse accommodation syndrome, the credibility of witnesses and the resolution of evidentiary conflicts are for the jury. “On appeal of a conviction based on a jury verdict, this court resolves all conflicts in favor of the verdict and examines the evidence in a light most favorable to that verdict.” (Citations and punctuation omitted.) Self v. State, 208 Ga. App. 447, 448 (3) (431 SE2d 126) (1993). Viewed in the light most favorable to the verdict, the evidence authorized a rational trier of fact to find the appellant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The trial court did not err in denying the motion for new trial on these grounds.

2. The appellant also enumerates as error the trial court’s denial of his motion for new trial on grounds that the State’s notice of its intent to present evidence of similar transactions was too vague to allow him adequately to prepare a defense. He asserts prejudice in that there was insufficient time to investigate so as to impeach the similar acts witnesses with evidence that he was incarcerated during periods when the prior acts supposedly occurred. He also argues the State was allowed to “stack the deck” in such a way that it is likely the jury reached a guilty verdict on the basis of the similar prior offenses rather than the offense charged.

“Generally, on a prosecution for a particular crime, evidence of independent offenses committed by an accused is irrelevant and inadmissible. Before any evidence of an independent offense may be introduced, the state must show 1) that the evidence is relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character; 2) that there is sufficient evidence to establish that the accused committed the independent offense or act; and 3) that there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.” (Citations and punctuation omitted.) Cantrell v. State, 210 Ga. App. 218, 220 (435 SE2d 737) (1993). See also Williams v. State, 261 Ga. 640 (2) (409 SE2d 649) (1991).

The evidence showed that the appellant sexually abused his younger brother and other relatives under the age of 14 while they were living with the appellant or visiting members of the family. Moreover, as this court has repeatedly held, “[i]n a child molestation case, the sexual molestation of young children, regardless of sex or type of act, is sufficient similarity to make the evidence admissible.” (Citations and punctuation omitted.) Self v. State, supra at 448.

Uniform Superior Court Rule 31.3 (B) governs notice of the State’s intent to introduce similar transactions evidence and provides in part: “The notice shall be in writing, served upon the defendant’s counsel, and shall state the transaction, date, county, and the name(s) of the victim(s) for each similar transaction or occurrence sought to be introduced. Copies of accusations or indictments, if any, and guilty pleas or verdicts, if any, shall be attached to the notice.” “[T]he apparent purpose of the rule is to provide a criminal defendant with fair and adequate notice of the State’s intention to utilize evidence of prior similar transactions so that questions as to the admissibility of such evidence can be resolved before trial.” Sweatman v. State, 181 Ga. App. 474 (352 SE2d 796) (1987).

The State’s motion was timely served on the appellant and provided as much detail as the State possessed concerning the substance of the witnesses’ testimony. Further detail was provided to the appellant as soon as it was known to the prosecutor. The appellant had the opportunity at trial to cross-examine the similar acts witnesses concerning their claims and to present evidence of the dates of his incarceration. We find that the State’s notice was in substantial compliance with USCR 31.3. Since the acts were sufficiently similar, the trial court did not abuse its discretion by admitting them. Compare Gilstrap v. State, 261 Ga. 798 (410 SE2d 423) (1991). There was no error in the trial court’s denial of the motion for new trial on this ground.

Decided October 4, 1994.

Mary E. Moore, for appellant.

David C. Turk III, District Attorney, Don Ferguson, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.