text:
    A89A1423.
    BARRETT v. THE STATE.
    (385 SE2d 785)
   Deen, Presiding Judge.

Robert Earl Barrett brings this appeal from his conviction of aggravated assault following the denial of his motion for a new trial.

1. It was not error for the trial court to fail to give appellant’s requested charge on good character. Character evidence is limited to the general reputation of the person in the community, not to what the witness knows personally about him. Smith v. State, 153 Ga. App. 519 (265 SE2d 852) (1980). “OCGA § 24-2-2 limits [proof of] character to evidence of reputation. Proof of [the defendant’s] conduct in other transactions by evidence of specific instances of such conduct is not authorized by OCGA § 24-2-2, but amounts to self-serving declarations of non-culpability to prove a trait of character. This court has previously held that exclusion of specific acts to prove a general trait of character is a wise rule [Cit.]” Baine v. State, 181 Ga. App. 856, 858 (354 SE2d 177) ) (1987).

None of appellant’s witnesses ever properly raised the issue of the defendant’s good character, and appellant did not raise the issue himself. His testimony revealed only his name, age, address, where he went to school, his occupation, the length of time that he has been a carpenter, the number of his children, and his version of the events on the day in question, including his good relationship with the victim.

2. The trial court was authorized under OCGA § 17-14-10 to order restitution as a condition of probation. Day v. State, 188 Ga. App. 648, 651 (374 SE2d 87) (1988). Appellant contends that the order did not meet the requirements of OCGA § 17-14-10. An examination of the transcripts involved showed that two hearings on restitution were held. At the second hearing the court stated that it was being held in order to comply strictly with the Code section. Although the order does not recite that it is being drafted in accordance with the codal provisions, it is obvious that it was written with this Code section in mind. There is no merit to appellant’s contention that the order did not reflect his present financial status, as required by the Code. The testimony at the hearings showed that he owned a mobile home for which he paid $11,000 in cash, and perhaps an automobile. Counsel stated that the mobile home had been repossessed since the crime occurred, but no evidence was presented on this point. While appellant filed an affidavit stating that he had no assets, this point was rebutted by the victim’s testimony and no further evidence was presented. We find no error.

3. Appellant also asserts as error the trial court’s grant of the jury’s request to rehear a portion of a witness’ testimony on direct examination after it began deliberations.

We note that appellant did not raise any objection to the reading of this testimony until after it had been read. Assuming, arguendo, that the objection was timely raised, we find no error. The trial court has the discretion to permit the jury to rehear any portion of the testimony that it requests, absent any special circumstances which might work an injustice. Harris v. State, 173 Ga. App. 787, 789 (328 SE2d 370) (1985); Byrd v. State, 237 Ga. 781 (229 SE2d 631) (1976). As no inconsistency appears between the witness’ testimony on direct examination and on cross-examination, we find no abuse of the court’s discretion.

4. Appellant further asserts that the trial court erred in admitting into evidence the shotgun which he used to shoot the victim, claiming that it was obtained as a result of a statement elicited in violation of his Miranda rights.

After he was arrested, Barrett invoked his right to counsel. He was released on bond. About ten days later, a detective went to his house and told him not to say anything, but that he needed to retrieve the gun used in the shooting. Barrett told him that it was at his sister’s house and took him to get it. Counsel objected to the introduction into evidence of the gun.

An examination of the record indicates that appellant did not file a motion to suppress and waited until mid-trial before making a motion to exclude this evidence. Uniform Court Rule 31.1 requires that all motions be filed at or before arraignment unless the trial court extends the filing time. Van Huynh v. State, 258 Ga. 663 (373 SE2d 502) (1988). Moreover, appellant raised the issue at trial by asking a State’s witness about retrieving a gun from appellant after he was arrested. Any error was therefore invited, and appellant cannot be heard to complain on appeal. Griffith v. State, 188 Ga. App. 789, 790 (374 SE2d 359) (1988).

5. The trial court properly sustained a hearsay objection to certain testimony given by appellant’s son and struck his testimony.

OCGA § 24-3-1 (b) provides that hearsay evidence “is admitted only in specified cases from necessity.” Appellant contends that the evidence was admissible to impeach the victim’s testimony. To impeach a witness by proof of a previous contradictory statement, a proper foundation must be laid in accordance with the provisions of OCGA § 24-9-83. The proper foundation as to time, place or circumstances surrounding the alleged former statement was not laid when the victim testified, and she was not recalled for questioning and given the opportunity to deny or explain the inconsistent statement. Smith v. State, 171 Ga. App. 758, 762 (321 SE2d 213) (1984).

6. The determination of whether a defendant is indigent, and entitled to have counsel appointed to pursue an appeal, lies within the discretion of the trial court, and this determination is not subject to review. Penland v. State, 256 Ga. 641 (352 SE2d 385) (1987).

Judgment affirmed.

Birdsong, J., concurs. Benham, J., concurs fully in Divisions, 1, 2, 3, 5, and 6 but in the judgment only as to Division 4.

Decided September 5, 1989.

Ronald C. Goulart, for appellant.

Ralph Van Pelt, Jr., District Attorney, Scott K. Camp, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    A89A1425.
    HOLT v. THE STATE.
    (385 SE2d 787)
   Banke, Presiding Judge.

On appeal from his conviction of rape, the appellant contends that the evidence was insufficient to support the jury’s verdict and that the trial court erred in refusing to declare a mistrial based on indications given by the jury during the course of its deliberations that it was hopelessly deadlocked.

The victim was 15 years old at the time the events in question took place and was more or less on her way to her grandmother’s house from school. Rather than proceeding there directly, however, she decided first to walk to the home of a former boyfriend who lived in the neighborhood to return a cassette tape she had borrowed from him. On her way, she passed by the appellant, who called out to her by name from the front porch of his house and asked her if she remembered him. She replied that she did not and continued on to the boyfriend’s house, only to learn that he was not home. When she passed by the appellant’s house again on her return, he asked her for her telephone number. She replied that she did not have any paper to write it on, whereupon he invited her into the house. She testified that she accepted this invitation and that when she entered the house, the appellant locked the door, pulled her into his bedroom, and twice forced her to engage in sexual intercourse with him against her will.

In her original statement to police following the incident, the victim maintained that the appellant had pulled her down the street and forced her into the house at gunpoint. However, she later conceded that this was not what had happened, explaining that she had been afraid to tell the truth initially because she believed that if she did so she would be punished by her mother for going to her former boyfriend’s house without permission. The appellant’s defense was that the intercourse was consensual; however, he did not testify at trial. Held:

1. The victim’s testimony that the sexual acts were committedl against her will was sufficient to support the appellant’s conviction ofj rape, the issue of her credibility being for the jury to decide. Accor»' Robertson v. State, 184 Ga. App. 796 (1) (363 SE2d 43) (1987). Having reviewed the evidence in the light most favorable to the jury’s verdict, we conclude that it was sufficient to enable a rational trier of fact to find the appellant guilty of rape beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The trial commenced on February 27, 1989; and the presentation of the evidence was completed on February 28, in time for the jury to deliberate for approximately two hours before being released. The jurors resumed their deliberations on March 1 at 9:00 a.m. Shortly before noon, they sent a note to the judge stating: “After much discussion and three votes, we cannot reach a unanimous verdict.” The judge responded by informing the jurors that he was going to “let [them] deliberate some more,” whereupon, after recessing for lunch, they resumed their deliberations. At approximately 4:00 p.m., they sent the judge another note stating: “We have continued to deliberate and have gotten no farther. We do not see any possibility of reaching a common verdict.” The judge thereupon recessed the jury for the evening, instructing them to return the following morning.

When the jurors reconvened at 9:00 a.m. on March 2, the court gave them a modified Allen charge. After approximately 30 minutes of further deliberations, the jury requested that a portion of the victim’s testimony be read to them and that several of the court’s charges be repeated. After this was done, they deliberated approximately two more hours, whereupon they requested a recharge on the definition of rape. The court complied with this request, and again they retired to resume their deliberations. At this time, defense counsel moved for a mistrial on the ground that the jury was hopelessly deadlocked. The trial court denied the motion, stating: “Well, I think they’ve indicated from their questions and their requests for some of the evidence and some of the law to be repeated, that they are still debating what the verdict should be in this case and may be making some progress toward reaching a verdict. So I’m going to deny the motion at this time.” The jury returned its verdict approximately 50 minutes later. The individual jurors were then polled at the appellant’s request, and each affirmed that he or she had agreed to the verdict freely and voluntarily.

In support of his contention that the motion for mistrial should have been granted, the appellant argues that by the time the jury notified the court, at the conclusion of their deliberations on March 1, that they saw no possibility of reaching a common verdict, they had already deliberated for more time than it had taken to try the case. However, we do not see this as being dispositive of the issue of whether the trial court was required to declare a mistrial at that time, particularly in view of the fact that no motion for mistrial was made until the middle of the next day. There being no indication that the jurors considered themselves deadlocked at the time the motion for mistrial was made, nor any suggestion that they were coerced due to the length or circumstances of their deliberations into reaching a compromise verdict which did not reflect an exercise of free will on the part of each individual juror, we hold that the trial court did not abuse its discretion in denying the motion for mistrial. Accord Watson v. State, 178 Ga. App. 778, 782 (7) (344 SE2d 667) (1986). See generally Thornton v. State, 145 Ga. App. 793 (245 SE2d 22) (1978).

Decided September 5, 1989.

William C. Puckett, Jr., for appellant.

Robert E. Wilson, District Attorney, John H. Petrey, Eleni A. Pryles, Assistant District Attorneys, for appellee.

Judgment affirmed.

Sognier and Pope, JJ., concur.


author: Deen, Presiding Judge.

text:
    A89A1441.
    BUTLER v. THE STATE.
    (386 SE2d 371)
   Deen, Presiding Judge.

The appellant, Carmen Butler, was indicted for trafficking in cocaine, possession of cocaine with intent to distribute, and possession of marijuana. The trial court directed a verdict of not guilty on the marijuana charge and the jury acquitted Butler on the trafficking charge, but Butler was convicted of possession of cocaine with intent to distribute, and this appeal followed.

On November 17, 1987, a DeKalb County detective received a tip from a confidential informant that a Hispanic female named Carmen was distributing cocaine and that a Hispanic male named Delgado was selling marijuana and cocaine at premises rented by Butler. The informant also claimed that former State Senator Julian Bond was involved with Carmen and with the distribution of cocaine. The informant had been told by an acquaintance of his who was close to Butler that large amounts of cocaine were in the house. The detective placed the residence under surveillance, and observed a woman carry! some bags of garbage from the house to the curb for pick-up. When it was dark, he removed the garbage, took it to a nearby area, and sifted through the garbage in an attempt to corroborate the tip. He found! post-marked letterhead envelopes from Julian Bond’s office addressed! to Butler and personal notes from someone who had signed the notea “JB.” He also found several plastic sandwich bags with the corner I cut out of the bags (the corners often are used to package grams o| cocaine), several plastic bags containing marijuana residue and seed! and a homemade pipe used for smoking marijuana with a small amount of marijuana residue in the bowl. The next day, the detective resumed his surveillance and observed several people drive up in late-model, expensive cars, stay a few minutes, and then leave, conduct which fit a pattern of drug sales.

The following day, the detective applied for and obtained a search warrant. In his affidavit given in support of the application, the detective recounted his surveillance of the residence based upon the tip of an informant, his observation of a moderate amount of vehicular traffic to the residence, and his discovery of the homemade pipe with a small amount of marijuana residue, along with several hand-rolled marijuana cigarette butts, in the garbage bags. The only person specified in the affidavit was a Daniel Delgado.

Several police officers participated in the execution of the search warrant. Butler was in the kitchen at the time, and four other people were in her bedroom, which was formerly a den that had been converted into a bedroom. Albert Macias, Elis Fernandez, and Trojanell Wilson were sitting on the bed, and Merle Sims was standing against the wall next to a dresser, which, according to Butler’s daughter, usually contained only Butler’s clothing. The top drawer of the dresser was partially open, revealing a large plastic bag that contained 117 grams of powder, 77 percent of which was pure cocaine. In a dark plastic file box on the fireplace hearth was another bag containing 165.7 grams of powder, 75 percent of which was pure cocaine. On the nightstand beside the bed, the police found a bank deposit slip bearing Butler’s name and a .38 caliber revolver. A triple-beam Ohaus scale and funnel were on the top of the dresser, and a spoon and a strainer were in the middle of the bed. The street value of the cocaine was estimated at between $100,000 and $120,000.

Also in the house at the time of the search were several teenagers in another bedroom, an adult woman asleep in the basement, and a man asleep on the couch in the living room. None was found to be connected with the drugs. Macias and Fernandez were charged along with Butler, but disappeared after paying a cash bond. Sims, who was also indicted, testified at trial that Butler had worked for his telecommunications business on a commission basis from March to November 1986, during which time he had paid her approximately $7,000 to $8,000. The vehicles he had seen Butler drive included a later model Camaro (or something similar) and a Cadillac.

Butler’s daughter testified that Butler always had nice clothes, and that she drove a 1986 Firebird and a 1986 Cadillac, both of which were leased. She never knew Butler to have owned a new Peugot, but she identified Butler’s signature on a sales receipt showing Butler’s purchase of a 1986 Peugot for $28,331.20. She also testified that Butler travelled frequently, often with her boyfriend, Julian Bond, who paid for the trips. Held:

1. Butler contends that the trial court erred in denying her motion to suppress, because the search warrant was not supported by probable cause. Specifically, Butler asserts that the detective’s affidavit failed to show (1) any basis of the reliability of the informant and (2) the basis for the detective’s conclusory statement that the residue in the homemade pipe was marijuana.

In determining whether probable cause supported issuance of a search warrant, a “totality of the circumstances” test is employed. “ ‘The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis ... for conclud(ing)” that probable cause existed.’ ” State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984), quoting from Illinois v. Gates, 462 U. S. 213, 238 (103 SC 2317, 76 LE2d 527) (1983).

Corroboration of the information given by an informant may provide a substantial basis for finding probable cause, despite deficiencies in the showing of the informant’s veracity, reliability, or basis of knowledge. Curry v. State, 255 Ga. 215 (1) (336 SE2d 762) (1985); Mincey v. State, 180 Ga. App. 898 (350 SE2d 852) (1986). In the instant case, however, although it was obtained during an effort to corroborate the informant’s tip, the primary information given in the affidavit to support the issuance of a search warrant was the detective’s own discovery of marijuana in the garbage. The affidavit does not recount all the information given by the informant. Reference to the tip in the affidavit merely explained how the detective came to place Butler’s house under surveillance and check out the garbage. The detective’s statement in the affidavit, i.e., that inside the garbage bag “was a homemade pipe with a small amount of marijuana in the bowl . . . [and] several ‘roaches,’ handrolled marijuana cigarette butts,” provided substantial basis for concluding that probable cause existed. Compare State v. Casey, 185 Ga. App. 726 (365 SE2d 878) (1988), where the affiant officer’s conclusory statement that he had seen marijuana residue was insufficient because it did not indicate how the affiant could distinguish marijuana residue from tobacco residue.

2. We reject Butler’s contention that she was entitled to a directed verdict of acquittal based on the equal access rule. Whetherl the evidence of equal access was sufficient to rebut the presumption! of possession arising from the discovery of cocaine in Butler’s bed! room was a question properly left to the jury, under the totality of the| evidence in this case. Gumina v. State, 166 Ga. App. 592 (1) (305 SE2d 37) (1983). “The totality of the evidence was sufficient to connect defendant to the possession of the drugs, even though the evidence would have authorized a finding that others had equal access to the drugs. [Cit.]” Kelly v. State, 184 Ga. App. 337, 340 (361 SE2d 659) (1987).

Decided September 5, 1989.

Tony L. Axam, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, R. Stephen Roberts, Assistant District Attorneys, for appellee.

3. The investigating detective was allowed to testify over objection that in conducting his surveillance, he “was looking for evidence to verify that an Hispanic female named Carmen lived at the location possibly with an Hispanic Male named Daniel who may or may not be related to her.” Butler contends that the trial court should have granted her motion for mistrial because this testimony, explaining the officer’s conduct when it was not at issue, was inadmissible under Momon v. State, 249 Ga. 865 (294 SE2d 482) (1982), and Teague v. State, 252 Ga. 534 (314 SE2d 910) (1984). However, the admission of this testimony, even if error, was harmless, because other admissible evidence established the fact that Carmen Butler resided at the house under surveillance. See Noles v. State, 172 Ga. App. 228 (5) (322 SE2d 910) (1984).

Judgment affirmed.

Birdsong, and Benham, JJ., concur.


text:
    A89A1460.
    BRYAN v. BUDDY PATRICK, INC. et al.
    (386 SE2d 374)
   Deen, Presiding Judge.

Appellant Bryan lived for several years in Unit 6 of a two-building apartment managed by appellee Patrick and owned by the other appellees. In the alley between the two buildings was a series of circular drainage holes, each covered with a metal grate which lay approximately flush with the pavement. In April of 1983 Bryan tripped on the grate covering the hole nearest Unit 6 and fractured his right ankle. In the lawsuit filed against appellees he testified that he was aware of the presence of these holes and of their potential for danger and had consciously avoided stepping on them. Evidence was adduced that the drainage hole in which Bryan had stepped had no design defect apparent to appellees’ insurer’s agent.

In March 1986, after Bryan had moved into Unit 7, which is in the same building with and immediately adjacent to his original unit, |he stepped upon or into the drainage hole nearest his current dwelling and did extensive damage-to his left ankle. He brought a negligence action against appellees, alleging that appellees had actual and constructive notice (consisting of his own 1983 lawsuit and unspecified incidents involving other tenants) that the drainage holes constituted a danger. He further alleged that the holes were inspected by Patrick or his agent twice a month and that an agent of Patrick’s was on the premises every day. Additionally, he alleged that he had no knowledge of the specific hazard posed by the various holes. Appellees contended that the proprietor is not an insurer of his patrons’ or tenants’ safety and that appellant’s knowledge of the drain’s condition and any associated dangers was equal or superior to that of appellees; and that he therefore could not expect to recover for any damage he might sustain as a result of injuries incurred in connection with the alleged defect or other hazard. The trial court granted appellees’ motion for summary judgment, and Bryan appeals. Held:

1. Appellant first enumerates as error, in general terms, the award of summary judgment. He then enumerates two alleged errors in more specific terms: the trial court erred in finding that appellee did not have actual or constructive notice of the specific hazard presented by the drainage hole which figures in the instant case, and the court further erred in finding that appellant had equal or superior knowledge regarding the holes and the dangers they posed. Because in his argument and citation of authority appellant discusses the first and second enumerations together, we shall deem Enumeration 1 abandoned and treat Enumeration 2 as the first enumeration of error.

2. In his argument appellant reviews the statutory and case law pertaining to such issues as landlord liability, patent and latent defects, duty to repair, common areas, and notice. He contends that such matters are for the jury to decide, and that summary judgment in the instant case was therefore improper. He likewise contends in Enumeration 3 (treated as Enumeration 2) that matters of assumption of risk, ordinary care, and contributory negligence are properly matters for a jury rather than for summary adjudication.

Appellant is correct in stating that this is the general rule. See, e.g., Georgia Power Co. v. Knighton, 169 Ga. App. 416 (312 SE2d 872) (1984); Malvarez v. Ga. Power Co., 166 Ga. App. 498 (304 SE2d 542) (1983); OCGA § 9-11-56 and annots. The exception which proves this! rule, however, is well established: in “plain and palpable” cases, when! the statutory criteria have been met, it is proper to dispose of sucbl issues by summary judgment. Malvarez, supra; Fort v. Boone, 166 Gal App. 290 (304 SE2d 465) (1983). We find the instant appeal, on it! facts, to be such a “plain and palpable” case. Construing the evidencJ most favorably for the appellant, we find that appellees did not necesl sarily have notice of the specific hazard which appellant contends wa| inherent in the second drainage hole (that nearest to Unit 7) ani moreover, that according to the undisputed evidence of record, appellant’s knowledge of the purported hazards was equal or superior to that of appellees. See MacDonald v. Vasselin, 188 Ga. App. 467 (373 SE2d 221) (1988). The trial court therefore did not err in awarding summary judgment, and appellant’s enumerations of error are without merit.

Decided September 5, 1989.

E. Graydon Shuford & Associates, Charles F. Perkins, for appellant.

R. Chris Irwin & Associates, Thurbert E. Baker, for appellees.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


author: Birdsong, Judge.

text:
    A89A1463.
    SEABOLT et al. v. EDGHILL.
    (386 SE2d 376)
   Birdsong, Judge.

The Seabolts appeal the dismissal of their complaint with prejudice for failure to perfect proper service of process. Mrs. Seabolt was injured on July 4, 1985, when her car was in a collision with one driven by Edghill. On October 6, 1986, she and Mr. Seabolt filed suit against Edghill to recover the damages sustained as a result of the collision and for Mr. Seabolt’s loss of consortium.

A deputy sheriff purported to serve process on Edghill by serving his mother at her address in Morrow, Georgia. Thereafter, Edghill filed a “Special Answer” raising as a defense “insufficiency of service of process” and specifically “not submitting himself to the jurisdiction of [the] Court. ...” The parties engaged in discovery, and subsequently Edghill moved to dismiss the complaint or in the alternative for summary judgment because of insufficiency of service of process.

In support of his motion, Edghill submitted affidavits from his mother and himself stating that at the time process was left with his mother Edghill did not reside at the address in Morrow, but instead Edghill resided in Chamblee, Georgia, and had done so for some months. Thus, he asserted that service of process was insufficient and the complaint should be dismissed. We note that the record does not show any other service on Edghill.

I The Seabolts’ response to the motion did not dispute the assertions in Edghill’s affidavits, but instead, contended that Edghill had /aived any insufficiency of service by participating as a party to the iroceedings through conducting discovery, and that Edghill had actu-lly received process from his mother.

The trial court found that the procedure used to perfect process was insufficient and dismissed the complaint with prejudice on March 7, 1989. The Seabolts now appeal from that decision assigning as error the trial court’s failure (1) to make findings of fact and conclusions of law; (2) to liberally construe the Civil Practice Act’s provisions on services of process; (3) to consider the code provisions giving weight to substantial compliance, and (4) to take into consideration the four-year period of limitations applicable to Mr. Seabolt’s claim for his wife’s medical expenses. Held:

1. Enumeration of error 1 alleges that the trial court failed to make findings of fact and conclusions of law as required by “OCGA § 9-11-52 (9)” (sic). We note that there is no subparagraph “(9)” of OCGA § 9-11-52. Even granting that appellants intend to cite to sub-paragraph “(a)” of that code section, we find no requirement for the trial court to make findings of fact and conclusions of law in this case. OCGA § 9-11-52 (a). Further, the cases cited by appellants do not support this contention. Accordingly, this enumeration of error is without merit.

2. The Seabolts’ arguments in enumerations of error 2 and 3 were decided adversely to them by this court’s decisions in Terrell v. Porter, 189 Ga. App. 778, 779 (377 SE2d 540); Garrett v. Godby, 189 Ga. App. 183, 184-185 (375 SE2d 103); and Adams v. Gluckman, 183 Ga. App. 666, 667 (359 SE2d 710). Service must be perfected personally upon the defendant or otherwise in accordance with OCGA § 9-11-4 (d) (7). Service upon Edghill’s mother at her residence, not his, is not service within the meaning of the code section. Further, a defendant does not waive the insufficiency of service of process by participating in discovery if the defense is raised in his answer as required by OCGA § 9-11-12 (b) (5). Garrett v. Godby, supra. The appellant’si assertions to the contrary are without merit.

3. The Seabolts’ fourth enumeration asserts that the trial court erred by dismissing with prejudice what they now allege was Mr. Sea-1 bolt’s claim for his wife’s medical expenses. They now also assert than the claim was subject to the four-year statute of limitation for damj age to property rights. See Brumit v. Mull, 165 Ga. App. 663, 667 (302 SE2d 408).

Assuming that Mr. Seabolt had such a claim, any error caused bj dismissing that claim with prejudice was created by the Seabolts’ fail! ure to plead specifically the claim as required by OCGA § 9-11-9 (gl so the trial court could determine the nature of the claim, and by thl Seabolts’ concession that the two-year statute of limitation appliecl As the Seabolts induced any error here, they cannot now complain cfl it. Locke v. Vonalt, 189 Ga. App. 783, 787 (377 SE2d 696).

Further, as the record does not reflect that Edghill was eva| properly served with process, the statute of limitation was not tollefl Thus, even the four-year statute of limitation has now expired, George v. Southern R. Co., 135 Ga. App. 531, 533 (218 SE2d 447), and this issue is now moot.

Decided September 5, 1989.

Clark, Smith, Thomson & Schwartz, Hoke Smith HI, for appellants.

Bouis, Kyle & Burch, James E. Singer, Christina A. Craddock, for appellee.

Any claim based upon Mr. Seabolt’s consortium claim was waived when no error was enumerated concerning the trial court dismissing that claim with prejudice. OCGA § 5-6-40; Rider v. State, 226 Ga. 14 (3) (172 SE2d 318). Claims for medical expenses do not include claims for loss of consortium. Branton v. Draper Corp., 185 Ga. App. 820, 821 (366 SE2d 206).

Accordingly, the Seabolts’ fourth enumeration of error is also without merit.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


text:
    A89A1475.
    HAMM v. AULD.
    (386 SE2d 386)
   Banke, Presiding Judge.

The appellant, a Georgia prison inmate serving time for kidnapping, motor vehicle theft, and armed robbery, brought this action against the appellee attorney to recover damages based on allegations of fraud, invasion of privacy, and ineffective assistance of counsel. He brings this appeal from the grant of the appellee’s motion for summary judgment. Held:

1. The appellant alleges that the appellee defrauded him by promising to secure his release from prison in exchange for a $300 fee. The appellee denied having made such a promise; however, even accepting the appellant’s allegations in this regard as true, they would establish no basis for a fraud action. “[F]raud cannot be predicated on a promise which is unenforceable at the time it is made. [Cits.]” Beasley v. Ponder, 143 Ga. App. 810 (240 SE2d 111) (1977). A promise to secure an inmate’s release from prison regardless of the legality of his conviction and sentence clearly would not be enforceable and thus could not serve as the basis for a fraud action. See generally OCGA § 13-8-1; 13-8-2 (a). While such a promise might serve as the basis for disciplinary action against the attorney, it is apparent from the record that the appellant initiated such proceedings against the appellee and that the State Bar of Georgia ruled in favor of the appel-lee on the appellant’s complaint.

Decided September 5, 1989

George Hamm, pro se.

Germano & Kimmey, Don E. Germano, for appellee.

2. With respect to the appellant’s remaining claims and contentions, the trial court’s rulings are affirmed for the reasons stated in the court’s order, without the necessity of further discussion.

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A1524.
    CLARK v. THE STATE.
    (386 SE2d 378)
   Banke, Presiding Judge.

The appellant was charged with speeding, following too closely, and driving under the influence. A jury acquitted him of following too closely but found him guilty of speeding and driving under the influence. He appeals. Held:

1. The appellant contends that there was no evidence from which the jury could have determined that he was under the influence of alcohol to the extent that he was a less safe driver and that the evidence as a whole was consequently insufficient to support a DUI conviction under OCGA § 40-6-391 (a) (1). This contention is without merit. The arresting officer testified that the appellant had been doing 75 miles per hour in a 55-mile-per-hour zone, that he could not touch his finger to his nose with his eyes closed upon being asked to do so, that he staggered and lost his balance when asked to turn around with his eyes closed, that his speech was slurred, and that he registered .09 on a breathalyzer test administered to him at the scene. Under the circumstances, the jury was not required to believe the appellant’s testimony that he had only had two or three beers to drink that day or that his lack of coordination was due to a spinal injury. See generally Soltow v. State, 182 Ga. App. 716 (2), 717 (356 SE2d 750) (1987). From the evidence as a whole, a rational trier of fact could reasonably have concluded beyond a reasonable doubt that the appellant was under the influence of alcohol to a degree which rendered him a less safe driver. Accord Valdez v. State, 192 Ga. App. 1 (383 SE2d 611) (1989); Howell v. State, 179 Ga. App. 632 (1), 634 (347 SE2d 358) (1986); Barlow v. State, 158 Ga. App. 500 (280 SE2d 899) (1981).

2. The appellant maintained that he had no way of knowing h was speeding because he was moving with the flow of traffic and hi, car had no speedometer. He contends that the trial court improperl undermined this defense by charging the jury on the provisions of OCGA § 40-8-8, which requires that “[ejvery motor vehicle operated upon a public street or highway shall be equipped with a speedometer in good working order.” We find this contention to be without merit. Generally speaking, ignorance or mistake of fact constitutes a defense to a criminal charge only if it is “honest and real [and] not super-induced by the fault of negligence of the party doing the wrongful act. . . .” 21 AmJur 276, Criminal Law, § 141. See generally OCGA § 16-3-5. Thus, it was entirely appropriate under the circumstances for the jury to be informed that the appellant was under a legal duty to have a working speedometer in his car.

Decided September 5, 1989.

Linda S. Cowen, for appellant.

Keith Martin, Solicitor, Jackie N. Stanton, Assistant Solicitor, for appellee.

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A1534.
    MOBLEY v. THE STATE.
    (386 SE2d 384)
   Banke, Presiding Judge.

On March 23, 1987, the appellant was sentenced to six years’ probation pursuant to the provisions of the First Offender Act, OCGA § 42-8-60 et seq., based on his plea of nolo contendere to an indictment charging him with theft by conversion. One of the conditions of the probation was that he make restitution to the victim. On September 2, 1988, the trial court revoked the appellant’s probation based on his failure to make the required restitution payments. The court then entered an adjudication of guilt and sentenced him to a term of imprisonment. The present appeal is from that order. Held:

“[T]he proper method of appeal from an order of adjudication of guilt and sentence which serves to revoke the probationary status granted under the First Offender Act (OCGA § 42-8-60 (b)) is by discretionary appeal, as provided in OCGA § 5-6-35 (a) (5), rather than direct appeal.” Anderson v. State, 177 Ga. App. 130, 131 (1) (338 SE2d 716) (1985). Because the requirements of the discretionary appeal statute were not followed, the present appeal must be dismissed for want of jurisdiction.

Appeal dismissed.

Sognier and Pope, JJ., concur.

Decided September 5, 1989.

Ashman & Zipperer, Alex L. Zipperer III, for appellant.

Spencer Lawton, Jr., District Attorney, Jon C. Hope, Barry I. Mortge, Assistant District Attorneys, for appellee.


text:
    A89A1561.
    FOSTER v. THE STATE.
    (386 SE2d 383)
    Decided September 5, 1989.

      Kathleen J. Anderson, for appellant.

      Ken Stula, Solicitor, for appellee.
   Banke, Presiding Judge.

The appellant was convicted of theft by shoplifting. He brings this appeal from the denial of his motion for new trial.

A Winn-Dixie store employee testified that he observed the appellant pick up two packages of steaks from the meat counter, proceed down an aisle and “put something in his coat,” which the employee described as a windbreaker fastened at the bottom. He confronted the appellant, who did not respond to his questioning but instead proceeded rapidly down another aisle, looking behind him as he walked. Two store employees then observed the appellant reach into his jacket and quickly place the packages of meat on a shelf containing paper goods. Held:

“A person commits the offense of theft by shoplifting when he alone or in concert with another person, with the intent of appropriating merchandise to his own use without paying for the same ... (1) Conceals or takes possession of the goods or merchandise of any store or retail establishment.” OCGA § 16-8-14 (a). “Whether the requisite intent is manifested by the circumstances is a question for the trier of fact, and, on review, this court will not disturb the factual determination unless it is contrary to the evidence and clearly erroneous. [Cit.]” Riddle v. State, 145 Ga. App. 328, 330-331 (243 SE2d 607) (1978), overruled on other grounds, Adsitt v. State, 248 Ga. 237 (282 SE2d 305) (1981). We hold that the evidence presented here was sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of the offense of theft by shoplifting. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Sognier and Pope, JJ., concur.


author: Sognier, Judge.

text:
    A89A1563.
    BONNER v. THE STATE.
    (386 SE2d 379)
   Sognier, Judge.

Emma Bonner was convicted of theft by taking and she appeals.

1. Appellant enumerates the general grounds. Construing the evidence to support the verdict, the victim, a 72-year-old retired railroad worker, testified he had known appellant all of her life and that she knew he kept his monthly retirement benefit funds in his bedroom. After cashing his benefit payment for the month of January 1988, the victim placed the money, which was primarily in denominations of 100s, 50s, and 20s, in his bedroom inside one pocket of a money purse. Appellant visited him shortly after the first of the month, telling the victim she came by to repay him $5 she owed him. Appellant then insisted on going into the victim’s bedroom, claiming she wanted to listen to his radio. The victim’s daughter arrived and the victim was occupied talking to her in the front room for several minutes. Immediately after the daughter left, appellant returned from the bedroom and departed. The victim then went into the bedroom and discovered that all the money had been taken except for two twenty dollar bills which he had placed in another pocket of the money purse. The victim made no complaint to the police at that time and it was only at the urging of an acquaintance that he swore out a warrant against appellant shortly thereafter. The State also presented evidence that about the time of this incident, after a $100 bill was found at the post office frequented by appellant, she claimed the money was her own.

Appellant testified that she did visit the victim that night to repay money, but did not go into his bedroom. Appellant denied knowing where the victim kept his money and denied taking the money. She testified that the $100 bill she claimed at the post office was from her AFDC check, which she had cashed a few days earlier.

“ ‘The weight of the evidence and credibility of witnesses are questions for the triers of fact, and this court passes on the sufficiency of the evidence, not its weight. (Cit.) We find that a rational trier of fact could find from the evidence adduced at trial proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).’ [Cit.]” Day v. State, 188 Ga. App. 648 (1) (374 SE2d 87) (1988).

2. Appellant contends the trial court erred by denying her motion for a new trial because the evidence did not establish that the incident occurred on the date specified in the indictment, thereby preventing appellant from establishing her alibi defense. While this court has held that alleging one date in the indictment and proving another at trial when a defense of alibi as to the date alleged is relied upon violates the requirement in DePalma v. State, 225 Ga. 465, 469-470 (3) (169 SE2d 801) (1969) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at trial, see Caldwell v. State, 139 Ga. App. 279, 286 (228 SE2d 219) (1976), we find no merit in appellant’s enumeration for two reasons. First, although appellant asserted an alibi for the date specified in the indictment, her testimony at trial established that regardless of the date of the incident the alibi did not apply since appellant admitted she was present in the victim’s house on the date of the incident. Second, even if the variance in the date alleged surprised or prejudiced appellant, she failed to move the trial court for a postponement or a continuance despite the fact she had ample opportunity to do so, and since the evidence adduced at trial was sufficient to establish that the incident occurred within January 1988, i.e., during the period of the statute of limitation, we find no error in the trial court’s denial of appellant’s motion. See id. at 290-291.

3. The transcript reveals in regard to appellant’s final enumeration that after appellant testified on direct examination that she had not visited the victim’s bedroom, the district attorney cross-examined appellant about a statement she had made to the district attorney himself prior to trial. The district attorney called to appellant’s mind the time, place, and circumstances surrounding the conversation, in which appellant was asked whether she told the district attorney that she went back into the victim’s bedroom to listen to the radio. Appellant testified she remembered the conversation, and answered “[y]eah, I went back there and listened to that radio.” Appellant’s counsel then interposed an objection based on the district attorney’s status as an unsworn witness, which the trial court overruled. When questioning resumed, appellant explained the apparent inconsistency between her earlier statement to the district attorney and her trial testimony by saying that she did not listen to the radio on the date in question. The district attorney did not pursue this line of questioning.

In Carter v. State, 244 Ga. 803, 806 (2) (262 SE2d 109) (1979), the Supreme Court set forth the procedure for laying the foundation for impeachment under OCGA § 24-9-83 by prior inconsistent statements as follows: “ ‘(T)he cross-examiner will ask the witness whether he made the alleged statement, giving its substance, and naming the time, the place, and the person to whom made ...[.] If the witness denies the making of the statement, or fails to admit it, . . . then the requirement of “laying the foundation” is satisfied and the cross-examiner, at his next stage of giving evidence, may prove the making of the alleged statement.’ [Cit.]” The transcript reveals that the distric attorney laid the proper foundation but rather than denying makin the statement, appellant admitted having done so. Thus, contrary t appellant’s contention, the transcript established that it was not nec essary for the district attorney, as the cross-examiner, to prove th making of the statement, and accordingly we find that the failure of the district attorney to be sworn as a witness and to be available for cross-examination by appellant did not constitute reversible error.

Decided September 5, 1989.

David E. Morgan III, for appellant.

John C. Pridgen, District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A1581.
    PAIDEIA SCHOOL et al. v. GEIGER.
    (386 SE2d 381)
   Banke, Presiding Judge.

The appellee claimant sustained a traumatic head injury on October 11, 1985, while working for the appellant employer. The next day, he went to a hospital emergency room complaining of severe headaches; however, he returned to his normal work duties immediately after being examined and made no claim for workers’ compensation benefits during the course of the following year. Although the claimant lost no time from work due to his head injury, he began to experience head pains, dizziness and blurred vision in October of 1986. On November 10, 1986, he sought medical treatment for these symptoms from a Dr. Rachelefsky, without consulting or notifying the appellant. On December 19, 1986, his employment was terminated for reasons wholly unconnected with his injury. On March 1,1987, he suffered a mild stroke while doing repair work on his truck. Contending that the stroke had been precipitated by his prior on-the-job head injury, he brought the present claim for compensation.

The administrative law judge concluded, on the basis of conflicting medical evidence, that the stroke was causally related to the head injury and that it was accordingly compensable as a “superadded injury.” In awarding compensation based on this theory, the administrative law judge emphasized that it was “not continued employment that caused the condition which gave rise to the stroke, but rather the head trauma that claimant experienced on October 11, 1985.”

The administrative law judge’s award was affirmed on appeal to the full board and to the superior court. However, the superior court appeared to reject the “superadded injury” theory, basing its decision instead on a determination that, because the claimant had received treatment for the symptoms of his head injury on November 10, 1986, and because OCGA § 34-9-82 (a) permits a claim to be filed “ ‘within one year after the date of the last remedial treatment furnished ...,’” the statute of limitation had not run on the original injury. Significantly, in quoting this portion of OCGA § 34-9-82 (a) the court omitted the words, “by the employer,” which immediately follow the word, “furnished.” Held:

Decided September 5, 1989.

Saveli & Williams, Lawson A. Cox II, Richard G. Farnsworth, John M. Williams, for appellants.

1. The one-year statute of limitation clearly had run on the original head injury. In the first place, it is apparent without dispute from the record that Dr. Rachelefsky was not listed on the panel of physicians posted by the appellant and that the appellee neither sought nor obtained authorization from the appellant prior to consulting him. Thus, the visit cannot be considered treatment “furnished by the employer” within the contemplation of OCGA § 34-9-82 (a). See generally Holcombe v. Brown Transport, 253 Ga. 719 (324 SE2d 446) (1985); Scandrett v. Talmadge Farms, 174 Ga. App. 547 (2) (330 SE2d 772) (1985). Moreover, it has been held that even if no panel of physicians is posted by the employer as required by OCGA § 34-9-201 (e), “medical treatment which is deemed for statute of limitation purposes, to be remedial treatment furnished by the employer must be commenced within the original period of limitation, i.e., within one year of the job-related injury or of previous employer-furnished treatment.” Poissonnier v. Better Business Bureau &c., 180 Ga. App. 588, 589 (349 SE2d 813) (1986). It is apparent without dispute that the visit to Dr. Rachelefsky did not occur within one year after the accident.

2. The stroke cannot be considered compensable as a “superad-ded injury” because it neither constituted a “change in condition” nor occurred on the job. “[A] claimant cannot have a change in condition under the provisions of [OCGA § 34-9-104] unless there has been a previous award or agreement approved by the board granting compensation.” Hartford Accident &c. Co. v. Mauldin, 147 Ga. App. 230, 231 (248 SE2d 528) (1978). See also Scandrett v. Talmadge Farms, supra, 174 Ga. App. at 548. While a “new accident” may result either from a gradual worsening of a pre-existing injury due to aggravation by work duties or from the occurrence of a specific job-related incident, see Central State Hosp. v. James, 147 Ga. App. 308, 309 (1) (a & b) (248 SE2d 678) (1978), it is apparent without dispute that the claimant’s stroke fit neither of these categories. Nor, quite obviously, did it result from an “occupational disease” within the contemplation of OCGA § 34-9-280 et seq. Accordingly, we can ascertain no basis for an award of compensation, and we are constrained to hold that the trial court erred in sustaining the decision of the board in this case.

Judgment reversed.

Sognier and Pope, JJ., concur.

Collins & Eddings, Michael R. Eddings, for appellee.


text:
    A89A1586.
    McBRAYER v. DICKERSON.
    (386 SE2d 173)
   Deen, Presiding Judge.

In August 1987 the appellee, then 14 years old, bought a loaded .22-caliber pistol for $20 from a man who approached him on the street as he was skateboarding. He kept the pistol hidden from his parents. Several weeks later he went to a fair with the appellant, also 14 years old, who was a childhood friend, and had the pistol concealed in his pants. Because he wanted to get on a ride, the appellee asked the appellant to hold on to his pistol for him during the ride. However, they got separated afterwards and the appellee was unable to retrieve his pistol that day. He testified that he did call the appellant or the appellant’s brother that night and told them to store the gun in a safe place and not to use it until he could pick it up.

A few days later, however, the appellant took the pistol when he went to the lake with some other friends. The appellant knew that the semi-automatic pistol reloaded and recocked automatically, and knew how to work the safety catch. After shooting the pistol twice, the appellant continued to walk in some wooded area with his friends, with the gun cocked and the safety catch off. The gun accidentally discharged and fatally wounded one of the friends.

The parents of the victim sued the appellant, who filed a third-party claim against the appellee, alleging that the appellee negligently entrusted the gun to the appellant. The trial court granted summary judgment for the appellee, and this appeal followed. Held:

Liability for negligent entrustment of a firearm has been likened to that for negligent entrustment of an automobile, i.e., predicated in part upon the negligent act of the owner in lending a vehicle to another with actual knowledge of the other’s incompetence or habitual recklessness. Pitts v. Ivester, 171 Ga. App. 312 (1) (320 SE2d 226) (1984). In the instant case the evidence was uncontroverted that the appellant knew how to operate the pistol, and there was no evidence that the appellant had ever been reckless with firearms, much less habitual in that vice. The appellant’s evidence that he was a below-average student and on some occasions had entertained himself by throwing rocks at cars, did not demonstrate incompetence or habitual recklessness with firearms. Accordingly, the trial court properly granted summary judgment for the appellee.

Judgment affirmed.

Birdsong and Benham, JJ., concur.

Decided September 5, 1989.

Jones, Cork & Miller, Rufus D. Sams III, David A. Garland, for appellant.

Dozier & Akin, L. Z. Dozier, Martin, Snow, Grant & Napier, John C. Edwards, for appellee.


author: McMurray, Presiding Judge.

text:
    A89A0860.
    CARTER v. THE STATE.
    (386 SE2d 389)
   McMurray, Presiding Judge.

Defendant Carter was charged by a six-count indictment with burglary (3 counts), giving a false name to a law enforcement officer, escape, and criminal interference with government property. A jury acquitted defendant of one count of burglary and of giving a false name to a law enforcement officer. Defendant appeals his conviction of two counts of burglary, escape, and interference with government property. Held:

1. Defendant contends that his character was impermissibly placed in issue by testimony of a police officer that referred to him as “Ali Farred, a/k/a Robert Carter, a/k/a Willie Carter,” and by testimony of another police officer that he had confirmed that “defendant used the name Robert Lewis Carter in January of 1987 in the City of Atlanta. Contrary to defendant’s argument, we do not view the use of the term “a/k/a” without more as suggesting a criminal record or bad character. Compare McKenzie v. State, 187 Ga. App. 840, 845 (6), 846 (371 SE2d 869), and Seals v. State, 176 Ga. App. 67 (2) (335 SE2d 306). Nor was there any suggestion that defendant was “known in Atlanta because of a prior criminal act.” This enumeration of error is without merit.

2. Defendant’s second, fifth and sixth enumerations of error complain of portions of the trial court’s charge on grounds that they are unconstitutionally burden-shifting. Each of the charges at issue is taken from Suggested Pattern Jury Instructions, Vol. II, Criminal Cases, State of Ga., prepared by the Council of Superior Court Judges of Georgia. The charges involved are those on criminal intent, Vol. II, p. 13; flight, Vol. II, pp. 28-29; and, recent possession of stolen property, Vol. II, pp. 125-126. Because these charges are couched entirely in permissive rather than mandatory language they were not unconstitutionally burden-shifting. See Scott v. State, 255 Ga. 701, 702 (3), 703 (342 SE2d 310); Leverett v. State, 254 Ga. 691 (2), 692 (333 SE2d 609); Lucas v. State, 183 Ga. App. 637, 640 (3) (360 SE2d 12); Lockette v. State, 181 Ga. App. 649 (2) (353 SE2d 585).

3. Following one of the burglaries with which defendant is charged, police received a description of a man seen coming out of the victim’s yard as the alarm bell was ringing. The description was broadcast over police radio and an officer on the way to the burglary scene saw defendant carrying a ladies’ makeup case and he matched the description broadcast. The officer thus had an articulable suspicion sufficient to justify a brief stop pursuant to Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889).

Defendant contends that the subsequent conduct of police officers removed the stop from the parameters of a Terry v. Ohio stop and constituted an arrest without probable cause. Defendant enumerates as error the denial of his motion to suppress evidence.

The State’s evidence shows that following a pat-down for weapons which disclosed numerous items of jewelry in defendant’s pockets, defendant voluntarily consented to accompany police to the scene of the burglary. At the scene, defendant was arrested after being identified as the man seen leaving the scene of the burglary. Such on-the-scene “show-up” identifications have been held not to be impermissi-bly suggestive but necessary due to the practicabilities inherent in such situations. Williams v. State, 188 Ga. App. 496, 497 (1), 498 (373 SE2d 281).

After his arrest, defendant consented to a search of the makeup case. The search of the makeup case revealed proceeds of two of the burglaries with which defendant was charged.

Defendant’s arguments rely upon his testimony denying that he voluntarily consented to accompany police to the scene of the burglary or that he consented to the search of the makeup case. However, findings of fact and of credibility in a motion to suppress hearing are for the trial court and should not be set aside unless clearly erroneous. Woodruff v. State, 233 Ga. 840, 844 (3) (213 SE2d 689). In the case sub judice, we find no error in the trial court’s determination of these issues adversely to defendant. Therefore, since under the facts presented by the State’s evidence there was no abuse of the Terry v. Ohio stop and no arrest prior to police obtaining probable cause, the trial court did not err in denying defendant’s motion to suppress.

4. The trial court did not err in denying defendant’s motion to sever and refusing to order a separate trial for each of the crimes charged. “ ‘Offenses may be “joined for trial when they are based (1) ‘on the same conduct’ or (2) ‘on a series of acts connected together’ or (3) on a series of acts ‘constituting parts of a single scheme or plan.’ (Cit.) If offenses are joined for any of these three reasons, the defendant does not have an automatic right of severance; instead, the trial judge may grant severance if it is necessary ‘to achieve a fair determination of the defendant’s guilt or innocence of each offense’ (Cit.)” Haisman v. State, 242 Ga. 896, 900 (252 SE2d 397) (1979).’ Fluker v. State, 171 Ga. App. 415, 417 (2) (319 SE2d 884).” Isbell v. State, 179 Ga. App. 363, 366 (2) (346 SE2d 857). This test applied to the facts and circumstances of the case sub judice reveals no abuse of discretion. When first arrested defendant possessed the fruits of two burglaries with which he was charged. The giving of a false name charge arose from the circumstances of the arrest. The charges of escape and damage to government property arose subsequently during defendant’s escape and were thus connected to the earlier burglaries. The evidence of each of these connected offenses was relevant to the other. Carter v. State, 155 Ga. App. 840, 842 (2) (273 SE2d 417). Likewise, the burglary following defendant’s escape was also connected and all of the burglaries and connected crimes exhibited a common scheme or plan. Johnson v. State, 182 Ga. App. 477, 479 (4) (356 SE2d 101).

5. Defendant contends the jury was tainted since a juror was permitted to view him in handcuffs. Following a recess, defendant reported to the trial court that jurors had seen him in handcuffs during the recess. The jury was returned to the courtroom and the trial court inquired if any jurors had seen defendant outside the courtroom. One juror responded affirmatively and was questioned outside the presence of the remaining jurors. The juror reported that “she caught this one glimpse” of defendant while he was handcuffed and that seeing him under such circumstances would not affect her ability to try the case fairly. The juror was instructed to disregard the incident, make her decision based on the evidence received in court, and to not discuss the matter with any of the other jurors. Defense counsel declined the trial court’s offer of an opportunity to voir dire the juror, did not object to the trial court’s remedial action, and did not move for mistrial. Such amounted to a waiver of any objection. Even if the matter is viewed as being preserved for appeal these facts and circumstances reveal no abuse of the trial court’s discretion. Howard v. State, 144 Ga. App. 208, 212 (8), 213 (240 SE2d 908).

6. Relying upon the rule that where there is only one defense on which a party relies, failure to instruct the jury as to the evidence supporting the defense is error, defendant contends that the trial court erred in failing to instruct the jury as to theft by receiving. However, the offense of theft by receiving is not a defense but an alternative offense with which defendant was not charged and which is not a lesser included offense of those crimes with which defendant was charged. See Faust v. State, 189 Ga. App. 426, 427 (2) (375 SE2d 889). While defendant did not suggest that he knew or should have known the property in his possession at arrest was stolen, any evidence in this regard would be relevant only insofar as it supported defendant’s position that he was innocent of the burglaries. This enumeration is without merit.

7. The seventh enumeration of error raises an issue as to whether the evidence is sufficient to authorize defendant’s conviction on two counts of burglary. With respect to each of the burglary convictions, defendant’s possession of goods stolen in the burglaries supports an inference that defendant is guilty of the burglaries. Taking that inference into consideration along with corroborating evidence, we find that there was sufficient evidence to convince any rational trier of fact beyond a reasonable doubt of defendant’s guilt of the burglaries of which he was convicted. Howard v. State, 180 Ga. App. 817, 818 (350 SE2d 825). See also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

8. Next, defendant contends the trial court erred in allowing the State to present evidence of a similar transaction, a burglary with which defendant was not charged. The similar transaction burglary occurred about three or four blocks away and nine days prior to the date of two of the burglaries with which defendant was charged. In the similar transaction, a police officer responding to a burglary call was near the burglarized home when he saw a man at a bus stop in possession of a blue plastic suitcase. Later, at the burglarized home the officer saw a matching blue suitcase, but when the officer returned to the bus stop the unidentified man was gone. Subsequently, the officer happened to see defendant at police headquarters and identified defendant as the man he had seen earlier with the blue suitcase.

“Evidence of similar crimes is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact. ‘However, before it is admissible, two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged.’ Anderson v. State, 184 Ga. App. 293, 294 (361 SE2d 270).” Oller v. State, 187 Ga. App. 818, 819 (2) 820 (371 SE2d 455).

Both conditions for admission are satisfied in the case sub judice. The evidence of the independent crime is not rendered inadmissible by the fact that defendant was not arrested and charged with the commission of the independent crime. Woodard v. State, 155 Ga. App. 533 (2), 534 (271 SE2d 671). Also, the standard of proof of reasonable doubt is not applicable to the proof that the defendant was the perpetrator of the independent crime. Williams v. State, 251 Ga. 749, 784 (312 SE2d 40). There was sufficient similarity between the independent crime and the crime charged, all took place in the same vicinity within a short period of time, during daylight hours, entry was gained by kicking in the doors leaving shoe prints consistent with defendant’s shoes, jewelry and cash were taken from each house and defendant was identified near the crime scenes shortly after the burglaries. See Walraven v. State, 255 Ga. 276, 278 (4) (336 SE2d 798). This enumeration is without merit.

Decided September 6, 1989.

James Archie, for appellant.

Robert E. Wilson, District Attorney, Robert E. Statham III, Robert M. Coker, Assistant District Attorneys, for appellee.

9. Defendant’s final enumeration of error complains of the trial court’s admission of both an enlargement and a regular sized print of a photograph of a footprint on the door of one of the burglarized residences. While defendant argues that the cumulative nature of the photographs placed undue emphasis on that evidence, we find no error. Relevant photographs are admissible even if cumulative of other evidence. Perkins v. State, 152 Ga. App. 101, 102 (2) (262 SE2d 158). See also Arnold v. State, 166 Ga. App. 313, 316 (5) (304 SE2d 118). It does not constitute reversible error for a trial court to admit in evidence more than one photograph tending to prove a fact. Cagle Poultry &c. Co. v. Busick, 110 Ga. App. 551 (1), 552, 553 (139 SE2d 461). Similarly, we find no error in the admission of both enlargements and regular size prints of the same photograph.

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A0861.
    THE STATE v. ALLEN.
    (386 SE2d 394)
   Birdsong, Judge.

The State appeals the order of the trial court granting defendant’s motion for discharge and acquittal.

Appellant, Terry Mark Allen, was indicted for the sale of marijuana at the October Term of the Superior Court of Banks County. Defendant filed the following timely motion in the October Term of court: “In The Superior Court of Banks County, State of Georgia, STATE OF GEORGIA, Plaintiff, vs. TERRY MARK ALLEN, Defendant, Indictment No.: 87-CR-109B, Now comes the above named Defendant and before arraignment pleads not guilty and demands a trial in accordance with OCGA § 17-7-170 demands a trial by jury, a copy of the accusation indictment against him/her and a list of witnesses. . . .” (Emphasis supplied.) The motion had no caption, and was signed by both the defendant and his counsel. Trial was not held within two terms as required by OCGA § 17-7-170, and the superior court granted defendant’s motion for discharge and acquittal. Held:

1. The State asserts that the trial court erred in granting defendant’s motion for discharge and acquittal when a trial judge recused himself on his own initiative resulting in a delay of the proceedings.

“OCGA § 17-7-170 requires that after a defendant accused of a noncapital offense makes a proper demand for trial, he must be tried within the term of the demand or by the end of the next succeeding term, provided that at both terms there are juries impaneled and qualified to try him. If he is not tried by the end of the term following the demand, ‘ . . .he shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation.’ ” (Emphasis supplied.) Cleary v. State, 258 Ga. 203, 204 (366 SE2d 282). We have consistently held that this statute should-be “literally” interpreted. Caracena v. State, 186 Ga. App. 763, 764 (368 SE2d 532); Wilson v. State, 186 Ga. App. 190 (366 SE2d 826); State v. Hicks, 183 Ga. App. 715, 716 (359 SE2d 712). It is clear that OCGA § 17-7-170 on its face only requires that “there are juries impaneled and qualified to try” the defendant at both of the court terms. The statute does not require that there be a qualified judge available; the legislature apparently being satisfied that the judiciary would capably attend to such matter. See generally Uniform Superior Court Rules § 25 (Recusal). At the hearing conducted on this motion, the trial court found and the State does not now contest that qualified juries were impaneled as required by OCGA § 17-7-170.

Basically, the State contends that the original trial judge twice continued the case, because he believed himself disqualified due to his personal knowledge of the defendant, and that ultimately the trial judge did recuse himself of his own motion. The State theorizes that because it was willing and able to try the case within the two terms that it should not be penalized. The State wisely does not assert that the duty to obtain the trial judge fell upon the defendant/appellee, but places that duty exclusively on the recusant judge relying on Ferry v. State, 245 Ga. 698 (267 SE2d 1).

At the outset we find that regardless whose responsibility it might have been to obtain or to initiate a motion to obtain a qualified judge to try this case, it was not that of the defendant. We need not further resolve this issue in this instance. During the hearing of the motion, the district attorney stated that the original trial judge continued the case in both terms when it was sounded with the concurrence of the defendant, and that this was made a matter of record. The defense counsel then stated in his place that “[w]e’ve never concurred, and I never heard Judge Brooks state in open court or to me that he’s continued the case.” The district attorney thereafter conceded on the record that the original trial judge did not enter an order either voluntarily recusing himself or directing a continuance in the case sub judice, and that certain statements alluded to had been made by the trial judge to the district attorney privately. Thereafter the presiding trial judge concluded on the hearing record that “the actual record that we have is silent as to why [the case] was not reached in the two terms.” He also concluded that it was probably the court’s responsibility to “figure out some way” to make a qualified judge available to try the case timely. And the trial judge subsequently noted “there’s nothing in the record to indicate that the [defendant or the State, either one, requested any continuance.”

Our independent review of the record likewise reveals no official orders or other communications establishing either that the original judge recused himself or that the case was twice continued. Neither does the record before us reflect that the State has attempted to supplement this record. See generally OCGA § 5-6-41. In view of the posture of the record, we find no basis for reversing the trial court’s ruling on the grounds asserted by the State.

2. Appellant asserts that the trial court erred in granting defendant’s motion for discharge and acquittal when the motion was not in a form sufficient to be recognized as a motion for speedy trial.

It is well established that a demand for trial by jury or its mere equivalent is not sufficient to invoke the sanctions of OCGA § 17-7-170. State v. Adamczyk, 162 Ga. App. 288 (290 SE2d 149); compare Malpass v. State, 173 Ga. App. 690 (327 SE2d 753) (the document could not reasonably be construed as a demand to be tried in the next succeeding term of court); Smith v. State, 169 Ga. App. 251 (2) (312 SE2d 375); Smith v. State, 166 Ga. App. 352 (1) (304 SE2d 476).

In Adamczyk, supra at 289-290, we held that “henceforth a demand for trial will not be considered sufficient to invoke the extreme sanction of [OCGA § 17-7-170] unless it is presented for what it is — a demand to be tried within the next succeeding term of court. . . . [N]or is any particular form required so long as the demand can reasonably be construed as a demand for trial under the provisions of [OCGA § 17-7-170].” (Emphasis supplied.) In Ferris v. State, 172 Ga. App. 729, 731 (324 SE2d 762), the demand was not deemed sufficient, because “[t]he demand does not identify the charges pending against defendant by name, date, term of court, or case number [; s]uch a demand cannot reasonably be construed as sufficient to put the authorities on notice of a defendant’s intention to invoke the extreme sanction of [OCGA § 17-7-170].”

In Edwards v. State, 177 Ga. App. 557 (340 SE2d 229), this court applied the Adamczyk and Ferris principles and found a demand sufficient which stated, “ ‘[c] ornes now defendant and files his demand for speedy trial as guaranteed by the laws of the State of Georgia.’ ” In Edwards, supra at 557-558, we held that “[w]hile the demand at issue . . . contains neither a specific reference to OCGA § 17-7-170 nor a specific request to be tried within the next succeeding term of court, its denomination as a ‘demand for speedy trial as guaranteed by the law of the State of Georgia . . . filed . . . while jurors are impaneled to try the defendant’ does provide reasonable reference to . . . the code section. It follows that the demand was sufficient to invoke the extreme sanction of acquittal. Nothing contained in Ferris v. State, [supra], may be considered authority for a contrary ruling. ... In the case before us, the charges are identified by placement of the indictment numbers within the heading of the demand notice.” (Emphasis supplied.)

In State v. Prestia, 183 Ga. App. 24 (1) (357 SE2d 829), we concluded that a demand was sufficient which stated “ ‘trial by jury at this or the next succeeding term of court pursuant to OCGA § 17-7-170.’ ” In so ruling, we held “to invoke the extreme sanction of OCGA § 17-7-170 the demand must provide a reasonable reference to the provisions of that section, or otherwise clearly indicate that it is a demand for speedy trial.” Accord O’Neal v. State, 188 Ga. App. 270 (372 SE2d 833); compare Vondolteren v. State, 184 Ga. App. 344 (361 SE2d 833). This court in Prestía also acknowledged and applied the Ferris rule that the demand must reasonably identify the charges pending to which the demand pertains but also reemphasized the established rule of Adamczyk that the demand need not be in any particular form. Id. at 25.

In Verscharen v. State, 188 Ga. App. 746 (374 SE2d 349), this court found sufficient a demand that was captioned as a “Demand for Trial by Jury,” and which stated in the body thereof “ ‘[n]ow comes [defendant] and demands trial by jury in the above-styled case pursuant to his rights under the 6th Amendment . . . and OCGA § 17-7-170 there being jurors impanelled and qualified to try said case at this time.’ ” Thus, we held the request sufficient to meet the Prestía test notwithstanding its lack of a specific request to be tried within the next succeeding term of court. Compare Green v. State, 191 Ga. App. 873 (383 SE2d 359) (1989).

Applying the Prestía test to the demand in this case, we are satisfied that the demand provided not only a reasonable reference, but a direct reference, to OCGA § 17-7-170, and thus could be reasonably construed as a demand for trial under its provisions as required by Adamczyk. Incidentally, we note that the district attorney expressly conceded on the record that “[i]f you went to the code section [OCGA § 17-7-170], you’d know that was a demand for it to be tried within two terms of court.” Further, as the demand contained a direct reference to the indictment number, it complies with the specificity of identity requirements of Ferris. Edwards, supra. Moreover, assuming this demand had failed to comply fully with the procedural requirements necessary to invoke OCGA § 17-7-170 sanctions by only making a demand for trial “in accordance with OCGA § 17-7-170,” the demand clearly was in substantial compliance therewith, within the meaning of OCGA § 1-3-1 (c).

The appellant attempts to rely on the two-judge case of Kramer v. State, 185 Ga. App. 254 (363 SE2d 800), and assert that the demand was fatally flawed because it was not properly captioned. In Verscharen, supra at 747, we rejected Kramer expressly noting that Prestía, which as here involved a demand without caption and sought to invoke various other rights in addition to the OCGA § 17-7-170 right to be tried within the next succeeding term of court, was controlling. We find both Prestía and Verscharen to be controlling in this case. A caption is not mandated; “ [t] he trial court is not bound by the nomenclature [or lack thereof] used by a party [to identify a motion].” State v. Johnston, 249 Ga. 413, 415 (291 SE2d 543). “[W]e have said times without number that there is no magic in nomenclature” and we will construe the pleadings to serve the pleader’s best interests and “by its function rather than by its name.” Holloway v. Frey, 130 Ga. App. 224 (3) (202 SE2d 845); see Gully v. Glover, 190 Ga. App. 238 (1) (378 SE2d 411); accord McDonald v. State, 222 Ga. 596 (1) (151 SE2d 121); Ga. Prac. & Proc., Motions, § 9-1. Moreover, the absence of any caption could not have misled appellant. “Rather than being misled, the recipient of [a motion without caption] would be required to read the text so as to determine which right or rights were being invoked.” Compare Green, supra at 874.

Decided September 6, 1989.

Timothy G. Madison, District Attorney, John G. Wilbanks, Jr., Michael H. Booth, Assistant District Attorneys, for appellant.

David C. Jones, Jr., for appellee.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


text:
    A89A0935.
    A89A0936.
    RANDALL et al. v. NORTON. SOUTHERN DIVERSIFIED PROPERTIES, INC. v. RANDALL et al.
    (386 SE2d 518)
   Sognier, Judge.

Ralph Norton brought suit against Jere M. and Jean F. Randall to recover damages allegedly owed for breach of a contract for the sale of land. The Randalls then filed a third-party indemnification action against Southern Diversified Properties, Inc. (SDP). The Randalls appeal from the trial court’s entry of judgment on a directed verdict in favor of Norton and the denial of their directed verdict motion (Case No. A89A0935), which we have consolidated with SDP’s appeal from the verdict directed in favor of the Randalls on their third-party complaint (Case No. A89A0936).

The transcript reveals that in May 1980 Norton and the Randalls executed a “Land Sale Contract” whereby Norton agreed to sell to the Randalls a small apartment complex in DeKalb County. To avoid triggering the due on sale clause in the existing mortgages from Tucker Federal Savings & Loan Association (Tucker Federal), the parties agreed that Norton would retain title to the property until the loans were paid in full, and that the Randalls would make their payments to Norton, who in turn would pay the monthly mortgage payments. At the closing the parties also executed a one-page amendment to the Land Sale Contract (the Amendment), which provided that “[t]he parties hereto agree that as a part of the consideration for the Land Sales Contract entered into by and between them on this date, [the Randalls] agree that in the event that [Tucker Federal] should at any time . . . raise the interest rate on the existing loans, [the Randalls] agree to pay to [Norton] the difference between the existing interest rate and the increased interest rate, thereby indemnifying [Norton] from said increase.”

The testimony at trial further disclosed that on September 30, 1981, the Randalls sold their interest in the property to SDP. The “Transfer and Assignment of Land Sale Contract” (the Assignment) between the parties provided that the Randalls would continue to make their payments to Norton upon receiving monthly payments from SDP, and that SDP “hereby assumes all obligations and liabilities of [the Randalls] under the . . . Land Sale Contract and agrees to hold harmless [the Randalls] therefrom.” Thereafter, Tucker Federal notified all parties that it was accelerating the loans because of a breach of the due on sale clause. After this court ruled that the Land Sale Contract between Norton and the Randalls had activated that clause, Tucker Fed. Savings &c. Assn. v. Alford, 169 Ga. App. 38 (311 SE2d 229) (1983), to avoid foreclosure Norton and Tucker Federal entered into a security deed modification agreement, to which SDP was a signatory, whereby Norton agreed to pay Tucker Federal $13,000 in back interest from the date of acceleration and to raise the interest rate so that the monthly payments on the existing mortgages increased. Norton then brought suit against the Randalls on the Amendment, seeking to recover for all additional interest paid to Tucker Federal, and the Randalls sought indemnification from SDP in the third-party action. After hearing the trial testimony, the lower court submitted to the jury only the question of whether the Amendment was executed at the same time as the Land Sale Contract or after the other closing documents. The jury found that the Amendment was executed “at the same time [as the Land Sale Contract],” and the trial court then directed a verdict in favor of Norton on his claim and in favor of the Randalls on their third-party complaint against SDP.

1. In Case No. A89A0935, the Randalls contend the trial court erred by denying their motion for directed verdict made on the ground that the Amendment was not supported by valuable consideration and therefore was unenforceable. We do not agree.

The Randalls argue that the Amendment had no consideration because it was executed after the closing of the Land Sale Contract, but the jury found the Amendment was executed at the same time as the Land Sale Contract, and that finding was supported by the evidence. The trial court thus correctly concluded that the Amendment was part of the Land Sale Contract, which the evidence demonstrated was supported by ample consideration in the form of mutual promises to perform (a point not disputed by the Randalls). See Philips Audio &c. Corp. v. Bateman, 160 Ga. App. 12, 14 (285 SE2d 747) (1981). Further, Norton testified he would not have signed the Land Sale Contract if the parties had not agreed to the Amendment. Accordingly, we find no error in the denial of the Randalls’ directed verdict motion.

2. The Randalls also contend they were entitled to a directed verdict on Norton’s claim because the modification agreement between Norton and Tucker Federal constituted a novation, thereby releasing them from any obligation under the Amendment.

“A novation . . . has four essential elements: (1) a previous valid obligation, (2) the agreement of all the parties to the new contract, (3) the extinguishment of the old contract, (4) the validity of the new one. [Cits.] . . . There may be a novation of debtors, but the novation must be such as to release the original debtor and substitute a new debtor in his place.” Franchise Enterprises v. Ridgeway, 157 Ga. App. 458, 459 (1) (278 SE2d 33) (1981). In the case at bar there is no dispute that a previous valid obligation existed between Norton and Tucker Federal. However, the evidence also established that Norton remained obligated on the existing mortgages, and no other debtor was substituted for his obligation. Thus, no novation occurred here. Id. Additionally, the Randalls’ argument that the increase in interest rate demonstrated that the old contract was extinguished and replaced by a new one is without merit, as “new notes given for an existing indebtedness, although providing for additional interest . . . [do] not operate to extinguish the indebtedness on the original notes, in the absence of an express agreement that they should so operate.” Carter v. Rich’s, Inc., 83 Ga. App. 188, 191 (63 SE2d 241) (1951). The terms of the modification agreement clearly provide that the original indebtedness remained, and accordingly we find no novation. See id. at 190-192 (4).

3. The Randalls cite Southern Nitrogen Co. v. Stevens &c. Co., 114 Ga. App. 581 (1) (151 SE2d 916) (1966) as support for their contention that Norton had no legal duty to pay the higher interest rate to Tucker Federal, and thus was not entitled to recover the difieren-tial from the Randalls. However, the principle set forth in Southern Nitrogen, that liability of an indemnitee cannot be established prior to the entry of a judgment or other similar legal proceedings against the indemnitee, was superseded by the passage of OCGA § 51-12-32, which provides that the right of indemnification is not lost or prejudiced by settlement or compromise of a claim. Ranger Constr. Co. v. Robertshaw &c. Co., 158 Ga. App. 179, 181-182 (279 SE2d 477) (1981); see Superior Rigging &c. Co. v. Ralston Purina Co., 172 Ga. App. 79, 80 (2) (322 SE2d 95) (1984). Accordingly, Norton was entitled to enter into a compromise agreement with Tucker Federal to avoid foreclosure without prejudicing his right to seek indemnification from the Randalls under the terms of the Amendment.

4. In their final enumeration of error the Randalls contend that there was no proof that the damages awarded against them flowed from the Amendment or that the $13,000 lump sum payment Norton made to Tucker Federal was attributable to an increase in the rate of interest on the existing mortgages.

The modification agreement, which was admitted into evidence, states that the $13,000 payment was made to compensate Tucker Federal for interest lost since the date Tucker Federal first attempted to foreclose, and further stipulates a higher monthly payment as a result of an increase in the rate of interest. Norton’s testimony confirmed that arrangement. The Randalls presented no testimony in rebuttal of this evidence, and as the Amendment clearly required the Randalls to indemnify Norton for “the difference between the existing interest rate and the increased interest rate,” we find the trial court correctly concluded Norton was entitled to a directed verdict. See generally First Ga. Leasing v. First Ga. Bank, 188 Ga. App. 847, 848 (1) (374 SE2d 751) (1988). Therefore, the Randalls having presented no grounds for reversal of the trial court’s directed verdict, that judgment is affirmed.

5. In Case No. A89A0936 SDP asserts as error the trial court’s ruling denying its motion for directed verdict and granting that of the Randalls, contending that the evidence showed that SDP did not agree to assume the Randalls’ obligations to Norton under the Amendment.

The Assignment provided that the Randalls were transferring to SDP their interest “in and to that certain Land Sale Contract [between Norton and the Randalls], which Land Sale Contract is recorded in Deed Book 4272, pages 425, et seq., DeKalb County, Georgia Records. Said Land Sale Contract, together with any later modifications or amendments thereto is made a part of this [Assignment] by reference.” It is undisputed that the Amendment, although found by the jury to have been executed at the same time as and thus a part of the Land Sale Contract, was not recorded, and Melton Harrell, president of SDP, testified that he did not learn of the existence of the Amendment until after the execution of the modification agreement between Norton and Tucker Federal. Because the jury found that the Amendment was executed at the same time as the Land Sale Contract, the Amendment cannot be considered a “later modification.”

Decided September 6, 1989.

Rich, Bass, Kidd & Witcher, Casper Rich, Merck K. Smith, for Randall.

William F. C. Skinner, Jr., for Norton.

Wildman, Harrold, Allen, Dixon & Branch, Frank 0. Brown, Jr., Jerry L. Sims, for Southern Diversified.

We agree with SDP that there was a conflict in the evidence on the issues of whether the Amendment was incorporated into the Assignment, whether the Randalls fraudulently concealed the existence of the Amendment, and if so whether SDP exercised ordinary care in seeking all relevant information. “ ‘A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced together with all reasonable deductions and inferences therefrom demands a particular verdict. [Cits.]’ [Cit.]” Tsilimos v. N.A.A.C.P., 187 Ga. App. 554 (370 SE2d 816) (1988). As we find material conflicts in the evidence, we cannot conclude that a directed verdict was authorized for either party, and thus hold that SDP is entitled to a trial on these issues. See generally Arnold v. Palace Indus., 187 Ga. App. 664, 665-666 (1) (371 SE2d 236) (1988).

6. Our decision in Division 5 renders moot SDP’s remaining enumerations.

Judgment affirmed in Case No. A89A0935. Judgment reversed in Case No. A89A0936.

Banke, P. J., and Pope, J., concur.


text:
    A89A1138.
    ATLAS CASING COMPANY INC. et al. v. JOYNER.
    (386 SE2d 397)
   Birdsong, Judge.

This appeal concerns the alleged breach of contract for the sale of an automobile. On October 21, 1985, Joyner bought a 1979 BMW for $9,500 from appellees Atlas Casing Company (Atlas) and Theise (“the sellers”) pursuant to a sales contract. The contract provided that the sellers would convey and deliver to Joyner title to the car, the operator’s and service manuals, all service and repair records, and all other documents related to or relevant to the car or the sale. The contract also provided that the sellers warranted that, to the sellers’ knowledge, the BMW had not been wrecked or received structural damage and warranted that except for certain listed problems there were no defects or malfunctions.

Shortly after the sale, Joyner sent a letter to the sellers notifying them that he had found mechanical problems and physical damage to the car which, in Joyner’s opinion, violated the contract clause containing the warranty of the car’s condition. He asserted that the defects were of such magnitude to warrant adjustment of the purchase price or rescission of the contract. The letter contained no reference to any other violations or potential violations of the contract.

In response the sellers’ attorney wrote Joyner forwarding a check for $1,000 and a release. The check had typed on the back: “In full and complete satisfaction of all actions and causes of action, claims and demands whatsoever regarding my purchase of the 1979 BMW automobile. . . .” The release briefly recounted the facts of the sale, specified that Joyner was “dissatisfied with the mechanical operation” of the car, stated that both parties desired to compromise, and that they “have agreed to adjust and settle the matter for” $1,000, and provided that in consideration for the $1,000 Joyner compromised “said claim” and released and discharged the sellers “from any and all causes of action, claims and demands whatsoever” which he had “or may hereafter have by reason of said dispute regarding said 1979 BMW ... or by reason of any cause, matter or thing whatsoever prior to the date hereof.” (Emphasis supplied.)

Joyner accepted the check, but modified both the release and the back of the check to reflect that the release was amended by Joyner’s letter of November 5, 1985. This letter specified that the “Release pertains to our settlement and compromise of the dispute regarding the mechanical condition of the car . . .” and that the release can-celled the paragraph of the sales contract concerning the condition of the car. The release, according to Joyner’s letter, was “amended by incorporation” of the letter. Further, the letter specifically provided that the remaining provisions of the sales contract remained in “full force and effect.”

Joyner’s letter returned title and license tag documents which required corrective action by the sellers. He also told the sellers that he was particularly anxious to receive the documents required by the sales contract.

When he did not receive the documents which he contends were required by the contract, Joyner filed suit against the sellers on March 7, 1986, alleging breach of the contract by not providing the documents and title to the car and alleging that the breach was intentional and in bad faith. He sought specific performance and nominal damage for the breach and exemplary and punitive damages for the bad faith claim. Joyner sought no damages for, and the complaint made no mention of, the car’s mechanical problems or physical damage.

The sellers answered denying the material allegations of the complaint and asserting that the claims were barred by accord and satisfaction, waiver, and estoppel. Thereafter, the sellers moved for summary judgment asserting that they had substantially performed their contractual obligations and relying upon the accord and satisfaction which they contend was reflected in the provisions on the check and the release. The sellers’ contention regarding performance was apparently based on delivery of the title to the BMW in July 1986, and their contention that they had delivered all the other documents or records in their possession.

Joyner responded to the sellers’ motion and then moved for partial summary judgment on liability as to the breach of contract claim. The trial court denied the sellers’ motion and granted Joyner’s motion. The sellers now contend that Joyner received everything to which he was entitled and that accord and satisfaction bars his claim. Held:

1. The first enumeration of error asserts that the lower court erred in granting summary judgment to Joyner on Count I, his breach of contract claim, because they assert that they had substantially complied with the contract’s requirements and because Joyner’s claim was barred by accord and satisfaction.

As the movant for summary judgment, Joyner could only prevail if, after giving the sellers the benefit of all reasonable doubts and all favorable inferences which might be drawn from the evidence, Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 603 (203 SE2d 173), as well as construing all evidence against Joyner, Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 29 (343 SE2d 680), there are no genuine issues of material fact and Joyner is entitled to judgment as a matter of law. OCGA § 9-11-56 (c).

Both parties have moved for summary judgment and have agreed that there are no genuine issues of material fact. The contract and OCGA § 40-3-31 (a) required the sellers to deliver the title certificate to Joyner at the time of delivery of the car in October 1985. Despite several attempts, the valid certificate was not delivered to Joyner until July 1986, nine months after the seller was obligated to do so. While the sellers’ affidavits state the dates on which events transpire and they allege that the delay was caused by events beyond their con trol and by Joyner’s intransigence, the affidavits do not set forth th factual basis for these conclusions. Moreover, the record does not re veal that Joyner did anything more than insist that the sellers comp! with the contract provisions. Accordingly, the sellers’ conclusory alie gations are not sufficient to create a genuine issue for trial. Swanson v. Lockheed Aircraft Corp., 181 Ga. App. 876, 879-880 (354 SE2d 204). Further, the evidence shows that the sellers did not finally deliver the title until four months after the complaint was filed.

Whether there has been substantial compliance with the contract may generally be an issue of fact but, in this instance we have no difficulty concluding as a matter of law that a nine-month delay in simply delivering a valid certificate of title is not substantial compliance with the contract. Additionally, there is no competent evidence to show that the other documents were ever provided. Theise’s affidavit says that he believes that his attorney transmitted those documents to Joyner, but the attorney’s affidavit is silent on that point. Accordingly, it was not error to find for Joyner on that point also.

The sellers also contend that accord and satisfaction bars this claim. We do not agree. Where there is no agreement to settle all disputes, there is no accord and satisfaction. Pierson v. Herrington, 138 Ga. App. 463, 464 (226 SE2d 299). The release prepared by the seller’s attorney was limited to resolution of the dispute about the mechanical condition of the car and by its terms, the release was limited in time to disputes existing prior to the date of the release. Parties may settle one distinct claim without prejudice to later claims that may arise. Wallace v. Harrison, 166 Ga. App. 461, 465 (304 SE2d 487). Consequently, even disregarding Joyner’s amendments to the release and the check, there was no accord and satisfaction which would bar the present claims, as there was no indication that the parties intended to relieve the sellers of all their obligations under the sales contract. First Nat. Bank v. Appalachian Indus., 146 Ga. App. 630, 635 (247 SE2d 422). It is clear that the accord and satisfaction was only in regard to claims arising from the mechanical condition of the car. Joyner’s amendments did not change the intention of the parties, but merely made more clear the intended scope of the release. Further, there is no indication that any other disputes had arisen about the contract. At this point the title had been transferred and had apparently been found deficient in some respect, but there was no indication that the error would not be promptly corrected and the title delivered or that there was a dispute about the documents.

The terms typed on the back of the check did not operate to create an accord and satisfaction. Such terms can only do so if at the time there was a bona fide dispute. OCGA § 13-4-103 (b) (1); see Sunbelt Life Ins. Co. v. Bank of Alapaha, 176 Ga. App. 628, 630 (337 SE2d 410); Sepulvado v. Daniels Lincoln Mercury, 170 Ga. App. 109, 111-112 (316 SE2d 554). As stated above, there was no dispute at the ime the check was tendered. Since the record does not support the acts which the sellers assert, the cases they cite in support of their rguments are distinguishable factually. Accordingly we find no merit n this assignment of error.

Decided September 6, 1989.

Hishon & Ranney, Robert H. Hishon, Dan R. Mustek, for appellants.

Joyner & Joyner, Gordon L. Joyner, pro se.

2. The second assignment of error asserts that the sellers’ motion for summary judgment was erroneously denied. The sellers rely for this contention upon the arguments asserted above. For the reasons stated in Division 1 of this opinion, their motion was properly denied. Although the facts were not in dispute, they were not entitled to judgment as a matter of law, and summary judgment was properly denied.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.