text:
    A89A0869.
    ABU-KHDEIR v. T. J. MAXX, INC.
    (382 SE2d 216)
   McMurray, Presiding Judge.

Relying upon Monroe v. Sigler, 256 Ga. 759 (353 SE2d 23), the trial court granted defendant’s motion for summary judgment in this malicious prosecution case upon a showing that, in the underlying criminal action, plaintiff's motions for a directed verdict of acquittal were denied. Plaintiff appeals. Held:

Recognizing the apparent applicability of Monroe v. Sigler, supra, plaintiff urges us to find that it should be applied prospectively only. In this regard, she points out she was tried in the criminal action long before Monroe v. Sigler was decided and asserts she would not have moved for a directed verdict of acquittal had she known that Monroe v. Sigler was the law. Completing the argument, plaintiff contends that Monroe v. Sigler is an “ex post facto” ruling which “changed the rules in the middle of the game” in violation of her due process rights. We disagree.

First, we note that “ex post facto” terminology is to be applied with respect to criminal statutes, not civil decisions. Goolsby v. Re gents of the Univ. System, 141 Ga. App. 605, 608 (2) (234 SE2d 165). Thus, the true question raised by plaintiff is not whether Monroe v. Sigler is an “ex post facto” decision but whether it is to be applied retroactively or prospectively only.

Decided May 10, 1989.

Rees R. Smith, for appellant.

Ordinarily, case law is to be applied retroactively. Dehco, Inc. v. State Hwy. Dept., 147 Ga. App. 476, 477 (249 SE2d 282). But a case can be applied prospectively. In determining whether a case should be applied prospectively or retroactively, a court should make a tripartite examination: “(1) Consider whether the decision to be applied nonretroactively established a new principle of law, either by overruling past precedent on which litigants relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. (2) Balance of the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation would further or retard its operation. (3) Weigh the inequity imposed by retroactive application, for, if a decision could produce substantial inequitable results if applied retroactively, there is ample basis for avoiding the injustice or hardship by a holding of nonretroactivity.” Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 712 (3) (300 SE2d 673).

Examining these guidelines, we think it is clear that Monroe v. Sigler is to be applied retroactively. First, Monroe v. Sigler did not overrule past precedent upon which plaintiff relied and, although the decision may not have been clearly foreshadowed, it followed the trend of not favoring malicious prosecution suits. See, e.g., Day Realty Assoc. v. McMillan, 247 Ga. 561 (277 SE2d 663). Second, the decision furthered the previously announced purpose of encouraging citizens to report crimes. However, the decision pointed out “[w]e do not encourage the reporting of crimes when a criminal victim easily, and at great hazard, can become a civil defendant.” See Monroe v. Sigler, supra at 761 (8) 762. Finally, plaintiff cannot be said to have been harmed by a retroactive application of the rule. (Certainly, she is no more harmed than was the plaintiff in Monroe v. Sigler. After all, that case had not been decided when that plaintiff moved for a directed verdict of acquittal in the underlying criminal matter either.) We are not persuaded by the suggestion that a criminal defendant would have foregone a meritorious motion for acquittal and risked an unfavorable jury verdict simply in order to maintain a malicious prosecution action.

Judgment affirmed.

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

Daniel MacDougald III, for appellee.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A89A0029.
    HOLLIS v. THE STATE.
    (382 SE2d 145)
   McMurray, Presiding Judge.

Defendant filed this appeal after being convicted of robbery. Held:

1. Defendant first contends that there was an improper communication between the deputy sheriff, who was apparently acting as a baliff, and the jury. During jury deliberations, Deputy Sheriff Mclver gave to the court a note containing two questions by the jury. The note read as follows: “[D] escribe the difference between acquital [sic] & not guilty[.] Why were there no finger prints[?]”

After the jury returned its verdict and before sentencing, the following colloquy transpired: “[DEFENSE COUNSEL]: Your honor, we need to perfect the record. THE COURT: Go ahead. [STATE’S ATTORNEY]: Your Honor, defense counsel yesterday and I were called back into your chambers, and Court’s exhibit ‘A’ was given to you by Sheriff Mclver which contains two questions, describe the difference between acquittal and not guilty and why were there no fingerprints. Your answers which both defense counsel and I agreed to, number one was the same, meaning acquittal and not guilty are the same, and that you could not answer number two, they would have to rely on the evidence. [DEFENSE COUNSEL]: I think, though, that the record should reflect that the sheriff was instructed —, apparently the sheriff went back and gave the message to the jury as opposed to the court or a written answer. [STATE’S ATTORNEY]: Yes, sir. THE COURT: Sure, that was understood. [DEFENSE COUNSEL]: Of course, I didn’t know what procedure the court was going to use on that. But definitely we were agreed on the answers. THE COURT: Thank you.” From this record, defendant argues that it was inappropriate for the deputy sheriff to convey the message to the jury.

“A bailiff is to make no communication to a jury and is not to allow any other communication with them, except by leave of court. OCGA § 15-12-140 (Code Ann. § 59-717); Battle v. State, 234 Ga. 637 (217 SE2d 255) (1975). ‘(W)here a communication from the baliff to the jury is shown, the burden is on the state to rebut by proof the presumption of harm.’ Id. at 639; accord Wellmaker v. State, 124 Ga. App. 37 (183 SE2d 629) (1971).” Mercer v. State, 169 Ga. App. 723, 728 (6), 729 (314 SE2d 729). However, where the bailiff’s communication with the jury is by leave of court, there is no presumption of harm absent a showing that the trial court abused its discretion in directing the bailiff. Recoba v. State, 179 Ga. App. 31, 32 (3) (345 SE2d 81).

In the case sub judice, Deputy Sheriff Mclver’s contact with the jury was at the direction of the trial court, “ ‘which is precisely when the bailiff is authorized to communicate with the jury. (Cit.)’ Williams v. Douglas County School Dist., 168 Ga. App. 368 (1) (309 SE2d 386) (1983).” Recoba v. State, 179 Ga. App. 31, 32 (3), supra. Consequently, there remained no presumption of misconduct. Nonetheless, Deputy Sheriff Mclver’s communication with the jury was, in effect, a supplemental charge which should have been made in open court in the presence of defendant and his counsel. See Berryhill v. State, 235 Ga. 549, 554 (12) (221 SE2d 185). However, “ ‘ “[i]n considering the right of the accused to be present at every stage of the trial, and to have his counsel present, we must not lose sight of the further principle, equally well established, that a new trial will not be granted on account of an error which manifestly caused no injury to the accused. It would be trifling with justice to set aside a verdict clearly and strongly supported by the evidence, solely on the ground that such an error had been committed by the trial judge. To warrant such action by a reviewing court, it must be manifest that the error was prejudicial in character.” (Cit.)’ Stewart v. State, [165 Ga. App. 428, 430 (2) (300 SE2d 331)].” Recoba v. State, 179 Ga. App. 31, 32 (3), 33, supra.

Under the circumstances of the case sub judice, we find no harmful error since there is nothing in the record to indicate that a timely objection was made to the trial court’s procedure in responding to the jury’s question; since both the State’s attorney and defense counsel agreed as to what the response would be; and since the response was of a character which was unlikely to undermine the integrity of the jury’s choice of verdict. See Nelson v. Smith, 228 Ga. 117, 118 (2) (184 SE2d 150); Berryhill v. State, 235 Ga. 549, 554 (12), supra, and Recoba v. State, 179 Ga. App. 31, 33 (3), 34, supra.

2. In his second and third enumerations of error, defendant contends the trial court erred in permitting the testimony of a State’s witness, Ms. Spence Williams.

(a) Defendant first argues that Ms. Williams’ testimony should have been excluded because the State failed to accurately provide him with the witness’ address as is required by Rule 30.3 of the Uniform Rules for the Superior Courts.

“Upon request of defense counsel, the district attorney shall furnish to defense counsel as an officer of the court, in confidence, the addresses and telephone numbers of the state’s witnesses to the extent such are within the knowledge of the district attorney, unless for good cause the judge allows an exception to this requirement, in which event defense counsel shall be afforded an opportunity to interview such witnesses prior to the witness being called to testify.” (Emphasis supplied.) Rule 30.3 of the Uniform Rules for the Superior Courts. 253 Ga. 801, 853. The purpose of this rule and “of OCGA § 17-7-110, under which the state generally must furnish a list of witnesses upon demand, is to insure that an accused is not confronted at trial with testimony of witnesses whom he has not had an opportunity to interview prior to trial. Bryant v. State, 174 Ga. App. 522 (330 SE2d 742) (1985).” Kickery v. State, 185 Ga. App. 274, 276 (1) (363 SE2d 805).

In the case sub judice, the State’s attorney stated that she provided defense counsel with the only address she had for Ms. Williams before trial. The State’s attorney further stated that the address she provided defense counsel was the same address the State used to subpoena Ms. Williams for trial. Under these circumstances, we find no violation of Rule 30.3 of the Uniform Rules for the Superior Courts, supra, since the assistant district attorney provided defense counsel with the only address she had for Ms. Williams. However, assuming the contrary, we find no error in allowing Ms. Williams’ testimony since the trial court provided defense counsel with an opportunity to interview Ms. Williams prior to the witness’ testimony. White v. State, 253 Ga. 106, 109 (317 SE2d 196).

(b) Next, defendant contends Ms. Williams’ testimony should have been excluded because the State’s attorney prevented his attorney from conducting an effective interview of Ms. Williams prior to the witness’ testimony.

The record shows that the State’s attorney attended Ms. Williams during the interview period provided to defense counsel by the trial judge and that the State’s attorney informed Ms. Williams that “if she wanted to talk to [defense counsel], she could, [but] if she didn’t want to, she didn’t have to.” Ms. Williams did not respond to defense counsel’s inquiry.

While not approving the State’s attorney’s involvement during defense counsel’s court directed interview with Ms. Williams, we find no harmful error since defendant fails to show that he was surprised by the witness’ testimony.

3. Defendant contends in his fourth enumeration that the trial court erred in allowing a police detective to refresh his recollection from a police report which was prepared by another officer.

OCGA § 24-9-69 provides that “[a] witness may refresh and assist his memory by the use of any written instrument or memorandum, provided he shall finally speak from his recollection thus refreshed or shall be willing to swear positively from the paper.” The trial judge stated that the police detective could use the report “so long as he testifies from a refreshed recollection. . . .” There is no evidence to indicate that the detective deviated from this instruction. Consequently, the trial court did not err in failing to strike the detective’s testimony. See Harper v. State, 142 Ga. App. 879, 880 (3) (237 SE2d 240).

Decided April 27, 1989

Rehearing denied May 11, 1989.

Scott Walters, Jr., for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Carole E. Wall, Assistant District Attorneys, for appellee.

4. In his fifth enumeration of error, defendant contends the trial court erred in failing to grant his motion for mistrial after the State’s attorney questioned a law enforcement officer regarding defendant’s decision to remain silent after his arrest. While this evidence is irrelevant to the charge against defendant, we find no error since defense counsel opened the door to this line of inquiry upon his cross-examination of the law enforcement officer. Carver v. State, 185 Ga. App. 436, 440 (8) (364 SE2d 877). Further, the record shows that defense counsel waived his right to complain as he did not promptly object and move for a mistrial at the time the State’s attorney questioned the law enforcement officer. Dye v. State, 177 Ga. App. 824, 825 (341 SE2d 314).

5. Next, defendant contends the trial court erred in allowing the State’s attorney to cross-examine one of his character witnesses about defendant’s prior arrests after the court sustained defendant’s objection to such cross-examination.

‘A party cannot during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.’ Joyner v. State, 208 Ga. 435, 438 (67 SE2d 221).” Sprayberry v. State, 174 Ga. App. 574 (1), 575 (330 SE2d 731). In the case sub judice, defendant did not raise an objection after the State continued its cross-examination of defendant’s character witness. Consequently, defendant cannot now complain. See Lovell v. State, 185 Ga. App. 521, 522 (2) (365 SE2d 133).

6. Lastly, defendant contends the trial court erred in allowing the State “to cross-examine a character witness on a nolo contendere.”

The record shows that the State’s attorney cross-examined one of defendant’s character witnesses as to her knowledge of defendant’s plea of nolo contendere to a criminal charge. The State initiated this examination after the witness testified on direct examination that the victim of a crime, for which defendant pleaded nolo contendere, “did not present any charges against [defendant].” Defendant objected and the trial court allowed the State’s attorney to continue her examination. Admission of this evidence was not error. Tilley v. Page, 181 Ga. App. 98, 99 (4) (351 SE2d 464).

Judgment affirmed.

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


author: Pope, Judge.

text:
    A89A0164.
    ATLANTA PROPELLER SERVICE, INC. v. HOFFMANN GMBH & COMPANY KG.
    (382 SE2d 109)
   Pope, Judge.

Planes, Inc., a Georgia corporation, was the owner of an airplane which was totally destroyed in a forced landing in Mississippi. The damage was caused when a propeller failed. Planes, Inc., brought suit in the State Court of Fulton County against the manufacturer of the propeller and appellant Atlanta Propeller Service, Inc., which installed the propeller assembly on the aircraft. Appellant filed a third-party action against appellee Hoffmann GMBH & Company KG, a West German company, which, appellant alleged, overhauled the previously used propeller and certified its airworthiness for reassembly and installation on an aircraft. After extensive discovery was conducted in both the United States and Europe, appellee moved for dismissal for lack of personal jurisdiction and moved for the award of expenses and attorney fees for abusive litigation. The lower court granted both motions and, after a separate hearing, ordered appellant to pay appellee $84,079.15 in attorney fees and costs.

1. Appellant does not argue that appellee transacts business within this state. Appellant asserts that long arm jurisdiction may be exercised over appellee pursuant to OCGA § 9-10-91 (2), which grants jurisdiction over a nonresident who: “Commits a tortious act or omission within this state. . . .” We affirm the dismissal of appellee because we find no tortious act was committed within this state to trigger application of the Long Arm Statute.

“[A] ‘tortious act’ is a composite of both negligence and damage, and if damage occurred within the state then the tortious act occurred within the state within the meaning of subsection [(2)] of the Long Arm Statute.” Coe & Payne Co. v. Wood-Mosaic Corp., 230 Ga. 58, 60 (195 SE2d 399) (1973). Appellant argues that for purpose of its third-party action against appellee, Georgia is the state in which damage occurred because appellee, the third-party defendant, will be liable, if at all, only once a verdict has been returned against appellant in favor of plaintiff Planes, Inc., in the Georgia trial court. Appellant’s sole theory of recovery in its third-party complaint is for contribution or indemnity for joint liability in tort for plaintiff’s injuries. The very basis of a third-party claim for contribution or indemnity against an alleged tortfeasor is the third-party defendant’s breach of a duty owed to the original plaintiff. See Duensing v. Tripp, 596 F.Supp. 389 (S.D. Ill. 1984). It cannot be argued that a tortious act was committed against appellant; the only tortious injury involved in this case was the one sustained by the plaintiff. It is the place where the allegedly tortious act was committed, out of which the right to contribution arose, which governs the application of the Long Arm Statute to a third-party complaint for contribution and indemnity. See Gosser v. Diplomat Restaurant, 125 Ga. App. 620 (188 SE2d 412) (1972).

Pursuant to Coe & Payne Co. v. Wood-Mosaic Corp., supra, the tortious act occurred either where the allegedly negligent act or omission was made (as to the third-party complaint, West Germany) or where the damage was sustained (Mississippi, the site of the forced landing). The damage from the allegedly tortious act was not sustained in Georgia simply because the plaintiff or the appellant, third-party plaintiff, is a resident of Georgia. Neither does it matter that appellant’s liability, if any, will be determined by a Georgia trial court. “[A] tort occurs when and where the actual injury or accident takes place, and not at the place of the economic consequences of that injury.” Portnoy v. Cessna Aircraft Co., 730 F2d 286, 290 (5th Cir. 1984). Because neither appellee’s allegedly negligent act or omission nor the plaintiff’s damage occurred in Georgia, then jurisdiction is not present in this state.

We reject appellant’s argument that appellee’s allegedly negligent issuance of a tag certifying the airworthiness of the propeller, which tag accompanied the propeller assembly to Georgia where it was assembled and installed on the aircraft, constituted a “continuing tort” which occurred both before and after the propeller assembly arrived in Georgia. “The continuing tort theory ... is limited to cases in which personal injury is involved. It is not applicable to cases which involve only property damage.” Corporation of Mercer Univ. v. National Gypsum Co., 258 Ga. 365 (368 SE2d 732) (1988). Although in Mercer University this proposition was applied in regard to the issue of when a tortious act had occurred for determining whether the statute of limitation had been tolled, the proposition is also applicable to the issue of where a tortious act occurred for determining jurisdiction under the Long Arm Statute.

2. Appellant argues that, even if its third-party complaint was properly dismissed for lack of personal jurisdiction, the trial court erred in awarding attorney fees and costs to appellee. Where, as here, the authorities cited by a plaintiff do not provide arguable support for the claim, even though made in good faith, then the defendant is entitled to damages for abusive litigation. See Ferguson v. City of Doraville, 186 Ga. App. 430 (2c) (367 SE2d 551) (1988). In its order granting appellee’s motion for fees and costs, the trial court recited evidence for its conclusion that appellant’s claim of jurisdiction over appellee lacked substantial justification and was “substantially vexatious.” “[Authorization to grant an award pursuant to] OCGA § 9-15-14 (b) is discretionary and the standard of review is abuse of discretion.” Haggard v. Bd. of Regents of Univ. System, 257 Ga. 524, 527 (360 SE2d 566) (1987). We find no abuse of discretion in the trial court’s award of attorney fees and costs. We need not address the issue of whether appellant’s “continuing tort” theory of establishing jurisdiction possessed substantial justification to avoid the award of attorney fees since the appellant did not assert this theory in response to appellee’s motions below, but raised the issue for the first time on appeal.

Decided April 10, 1989

Rehearing denied May 11, 1989

Lord, Bissell & Brook, Thomas J. Strueber, Michael J. Athans, for appellant.

Powell, Goldstein, Frazer & Murphy, Richard C. Mitchell, E. A. Simpson, Jr., Mozley, Finlayson & Loggins, Sewell K. Loggins, Long, Weinberg, Ansley & Wheeler, James S. Strawinski, Robert M. Goldberg, Harman, Owen, Saunders & Sweeney, H. Andrew Owen, Jr., for appellee.

3. The lower court’s order granting appellee’s motion for attorney fees and costs was entered March 28,1988. The order recited that the amount of the award would be determined after a separate hearing on a later date. The final order granting the award of $84,079.15 was entered on May 27, 1988. During the intervening period, on May 20, 1988, appellant filed its notice of appeal. Appellant argues that the order specifying the amount of the award is a nullity because the filing of the notice of appeal served as supersedeas so that the trial court lacked jurisdiction to issue the second order. However, the record shows that the appellant did not pay the costs assessed by the trial court until June 8, 1988, after the order setting the amount of the award of attorney fees and costs was entered. The filing of a notice of appeal serves as supersedeas only upon the payment of all costs in the trial court. OCGA § 5-6-46 (a); Duncan v. Ball, 172 Ga. App. 750 (1) (324 SE2d 477) (1984); Chappelaer v. Gen. GMC Trucks, 130 Ga. App. 664 (1) (204 SE2d 326) (1974). Consequently, the lower court did not lack jurisdiction to enter the order setting the amount of the award of attorney fees and costs.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A0189.
    WELCH et al. v. HOLLEY.
    (382 SE2d 128)
   Pope, Judge.

Plaintiff Daniel F. Holley, Sr., operated a barbeque restaurant business in Columbus, Georgia. In early 1983 plaintiff was approached by defendant Buddy Welch, a real estate agent, who inquired whether plaintiff would be interested in selling his business because Welch knew of an individual who might be interested in purchasing the restaurant. Defendant Welch had been asked by Ronald Price, the uncle of defendant Welch’s ex-wife, to find a restaurant in the Columbus area for him to purchase. Price, the purchaser, lived in the Atlanta area and preliminary negotiations were conducted by defendant Welch who conveyed information and offers between the plaintiff and the purchaser. Plaintiff originally offered to sell the restaurant for $30,000 cash. Defendant . Welch later informed plaintiff that the purchaser was interested if the price could be negotiated. Plaintiff agreed to a price of $27,500 and agreed to retain defendant Welch as his agent in the transaction by paying a commission of $2,500 at closing. After further negotiations conducted by defendant Welch, plaintiff agreed to a sale price of $27,000 to be partially financed by plaintiff with a reduction in Welch’s commission to $2,200.

Originally, the plaintiff asked for a $10,000 down payment from the purchaser. Defendant Welch informed plaintiff that the purchaser would have $10,000 upon the sale of his Atlanta house and the collection of a bonus due from his employer. However, defendant Welch told plaintiff the purchaser wanted to buy a house in Columbus and make certain improvements to the restaurant and thus wished to make only a $5,000 down payment. Ultimately, plaintiff and the purchaser met and agreed to a $5,000 cash down payment with $2,500 due in sixty days from the closing and another $2,500 due in ninety days from closing. The remainder of the sale price was to be financed by the plaintiff over ten years with the plaintiff obtaining a security interest in the restaurant equipment and the purchaser’s personal property.

Defendant Welch obtained an attorney to prepare closing documents. Plaintiff testified he asked defendant Welch if he needed to retain his own attorney but Welch told him the attorney would be able to represent both parties at closing. The closing attorney testified he was hired by defendant Welch to represent the purchaser at the closing. The attorney asked defendant Welch whether he should prepare a security agreement but was instructed not to do so. The closing documents included a Uniform Commercial Code Financing Statement Form FI, but did not include a security agreement granting plaintiff a security interest either in the restaurant equipment or in the purchaser’s personal property. Neither the closing attorney nor defendant Welch informed plaintiff that the UCC form signed by him at the closing would not, in itself, convey to him a security interest in any property. At closing, the purchaser paid plaintiff the $5,000 down payment but no further payment was ever made. Plaintiff brought suit against the purchaser, defendant Welch and defendant Jerry Harold Lindsey, the owner of the real estate agency which employed defendant Welch and with whom defendant Welch shared his commission fee. Plaintiff’s complaint alleged negligence and fraud. Judgment was entered on the jury verdict in favor of plaintiff in the amount of $15,000. Defendants Welch and Lindsey appeal.

1. In enumerations of error 1, 2 and 4, defendants argue the trial court erred in denying their motion for directed verdict. “Suppression of a material fact which a party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.” OCGA § 23-2-53. From his agreement to act as agent for plaintiff, defendant Welch was under a fiduciary obligation to act in plaintiff’s best interest. The evidence presented at trial was sufficient to create an issue for jury determination as to whether defendant Welch fraudulently failed to inform plaintiff that the documents executed at closing did not grant him a security interest in the purchaser’s property, as plaintiff had requested. Consequently, the trial court did not err in denying defendants’ motion for directed verdict as to plaintiff’s claim for fraud.

Ordinary diligence and care is required of an agent while acting on behalf of his principal. OCGA § 10-6-22. The evidence presented at trial was sufficient to create an issue for jury determination concerning whether defendant Welch was negligent in representing plaintiff in the sales transaction. Consequently, the trial court did not err in denying defendants’ motion for directed verdict as to plaintiff’s claim for negligence.

2. In enumeration of error number 3, defendants argue plaintiff failed to present evidence to support his claim for damages. We reject defendants’ argument that plaintiff’s sole measure of damages is the value of the property in which he would have possessed a security interest if the proper security agreement had been drafted and executed at closing. The measure of plaintiff’s damages is the amount owed to him by the purchaser who defaulted on the sale agreement.

3. Because we find the evidence does not demand a verdict in favor of defendants, the trial court did not err in denying defendants’ motion for judgment notwithstanding the verdict.

4. Actual fraud will support an award of punitive damages. Club Mediterranee v. Stedry, 159 Ga. App. 53 (2) (283 SE2d 30) (1981). As noted in Division 1 of this opinion, sufficient evidence was presented from which a jury could find defendant Welch knowingly and fraudulently failed to inform plaintiff that the closing documents did not grant him a security interest in the purchaser’s property. Consequently, the trial court did not err in instructing the jury on the imposition of punitive damages.

Decided April 19, 1989

Rehearing denied May 11, 1989.

Littlejohn & Pugh, F. Houser Pugh, for appellants.

James D. Patrick, Jr., for appellee.

5. The trial court did not err in instructing the jury on the law of constructive fraud. One of plaintiff’s claims was that defendant Welch misrepresented the purchaser’s financial ability to perform under the sale contract. The purchaser testified that he refused to make further payment under the agreement because the restaurant’s volume of business and the restaurant equipment was not as represented by plaintiff. However, sufficient evidence was presented from which a jury could find the purchaser did not have the financial means to pay the sixty-day and ninety-day installments specified in the sales contract. Even if defendant Welch did not knowingly misrepresent the purchaser’s financial status, if the representations were false and were relied upon by plaintiff, then defendants could be held liable for constructive fraud pursuant to OCGA § 23-2-52.

6. As set forth in Division 1, sufficient evidence was presented from which a jury could find defendants liable in fraud for suppression of a material fact. Consequently, the trial court did not err in instructing the jury, in accordance with OCGA § 23-2-53, that suppression of a material fact which a party is under an obligation to communicate constitutes fraud.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


author: Banke, Presiding Judge.

text:
    A89A0346.
    PRICE v. BIG CREEK OF GEORGIA, INC.
    (382 SE2d 356)
   Banke, Presiding Judge.

Appellant Price sued Michael Joe Coleman and appellee Big Creek of Georgia, Inc., d/b/a American Rent to Own, to recover for injuries she allegedly sustained when Coleman struck her automobile while driving a pickup truck which he had allegedly stolen from Big Creek’s possession. The trial court dismissed the claim against Big Creek pursuant to OCGA § 9-11-12 (b) (6) and entered a final judgment on that order pursuant to OCGA § 9-11-54 (b). This appeal followed.

Decided March 1, 1989

Rehearing denied May 11, 1989

Joseph B. Bergen, Frederick S. Bergen, for appellant.

Hunter, Maclean, Exley & Dunn, Anne Marscher, Lee C. Mun-dell, for appellee.

The amended complaint alleged that an employee of Big Creek, acting within the scope of his employment, left the truck unattended on a public street in the city of Savannah at approximately 2:00 p.m. with the keys in the ignition and that, only minutes thereafter, Coleman entered the vehicle without authority, drove away in it, and negligently collided with the appellant’s vehicle. The appellant alleged that her injuries were the proximate result both of Coleman’s negligent driving and of Big Creek’s negligence in leaving the vehicle unattended with the keys inside. Held:

“ ‘(M)ere ownership of an automobile involved in a collision may not be made the basis for holding an owner liable for the negligent operation of the automobile without showing that the defendant owner was guilty of some other negligent act which proximately contributed to the plaintiffs injury.’ [Cit.] . . . The fact that the keys were left in the unguarded automobile would not authorize a recovery against the owner for the injuries which were the result of its subsequent negligent operation by a thief.” Dunham v. Wade, 172 Ga. App. 391 (2), 392-3 (323 SE2d 223) (1984). Accord Robinson v. Pollard, 131 Ga. App. 105 (205 SE2d 86) (1974).

The appellant asserts that Dunham, supra, is not controlling in the present case because there the vehicle had been parked in a residential neighborhood, whereas here the vehicle was left unattended on a commercial street. A similar “special circumstances” argument was rejected by this court in Robinson v. Pollard, supra, where the vehicle had allegedly been left parked with the keys in the ignition “in a high crime area in Atlanta.” The complaint in the present case alleges that the vehicle was stolen in the middle of the afternoon in “plain view” of Big Creek’s employee, virtually immediately after the latter had exited it. Under the foregoing authorities, these allegations establish conclusively that the accident was not the proximate result of any negligence on the part of Big Creek, with the result that its motion to dismiss was properly granted. See Vaughan v. Vaughan, 253 Ga. 76, 77 (317 SE2d 201) (1984).

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A0724.
    GIGANDET v. LIGHTING GALLERIES, INC.
    (382 SE2d 600)
   McMurray, Presiding Judge.

This is an action on an open account by plaintiff Lighting Galleries, Inc., against defendant Gigandet Builders, Inc., and defendant Gigandet, a natural person. An “Account Agreement” identifies the corporate defendant as the “Account Debtor,” identifies defendant Gigandet as president and sets forth various provisions concerning the account, including the following language: “If the above account debtor is a corporation, the undersigned agree to personally guarantee, jointly and severally, payment of any charges which the corporation fails to pay when due.” The account agreement contained two signature lines at the bottom with a space for designating the title of the signing party. The only signature on the account agreement is that of defendant Gigandet and his title is designated as president.

Plaintiff’s complaint prays for judgment against both defendants, jointly and severally. Defendant Gigandet’s answer denies the essential averments of plaintiff’s complaint and denies any liability individually.

Plaintiff moved for summary judgment against defendant Gigandet supported by the affidavit of its president. After defendant Gigandet filed his affidavit in response, the superior court granted plaintiff’s motion for summary judgment.

Defendant Gigandet appeals the grant of summary judgment in favor of plaintiff and against him. The primary issue presented on appeal is whether the signature of defendant Gigandet, as an officer of the corporate defendant, also bound him individually. Held:

Defendant Gigandet contends that the account agreement is unenforceable because it does not comply with the statute of frauds of OCGA § 13-5-30. This contention rests on the premise that “[t]he account agreement at issue in this case was signed by one ‘person,’ Gigandet Builders, Inc.” Thus, argues defendant Gigandet, there is no writing “signed by the party to be charged.”

This argument confuses the concepts of identity and capacity. While defendant Gigandet signed the account agreement in his capacity as president of the corporate defendant, this does not alter the fact that defendant Gigandet is the party who signed the account agreement. Thus, the statute of frauds is satisfied.

Generally, an authorized agent is not personally liable on contracts he signs on behalf of a disclosed principal, but an agent may become a party to a contract which contains terms binding the agent personally. Pearl Assur. Co. v. Bernath, 185 Ga. 737 (2) (196 SE 389); Candler v. Clover Realty Co., 125 Ga. App. 278, 280 (187 SE2d 318); Hill v. Daniel, 52 Ga. App. 427, 428 (2) (183 SE 662); Ruffner v. Dunlop, 32 Ga. App. 693, 694 (2) (124 SE 544); Peeples v. Perry, 18 Ga. App. 369, 374 (89 SE 461). In view of the contractual provision set forth above, which personally binds defendant Gigandet, the single signature of defendant Gigandet bound both himself, personally, and his principal, the corporate defendant.

Decided April 11, 1989

Rehearings denied May 11, 1989.

Surrett, Walker, Creson & Colley, James D. Walker, Jr., Edward J. Coleman III, for appellant.

Vincent M. Davison, Jr., for appellee.

Finally, the affidavit of defendant Gigandet cannot be viewed as creating a genuine issue of material fact as to his intention in signing the account agreement. Defendant Gigandet is precluded by the parol evidence rule from presenting evidence to contradict the unambiguous terms of the account agreement. OCGA § 24-6-1; Daniel & Daniel, Inc. v. Cosmopolitan Co., 146 Ga. App. 200, 202 (2) (245 SE2d 885). The superior court did not err in granting plaintiff’s motion for summary judgment against defendant Gigandet.

Judgment affirmed.

Carley, C. J., concurs. Beasley, J., concurs in the judgment only.


author: Benham, Judge.

text:
    A89A0017.
    JONES v. ROBERTSON.
    (382 SE2d 382)
   Benham, Judge.

Appellee Robertson filed a multi-count lawsuit against appellant Jones, and the jury rendered a verdict in favor of Robertson on May 13, 1988, on a form provided by the trial court. They found in favor of appellee on the first count, awarding no actual or. punitive damages, but awarding appellee $5,500 as expenses of litigation and attorney fees. The jury awarded appellee $10,259.18 in damages on the third count, and found in favor of appellee on the final count and the counterclaim but made no award of damages. On June 28, 1988, the trial court entered its judgment reflecting the jury’s verdict; three weeks later, appellant filed a motion to strike that portion of the verdict and judgment that awarded appellee $5,500 as expenses of litigation and attorney fees. The trial court denied the motion on August 16, 1988, and appellant filed his notice of appeal on September 9, 1988.

“A party must file a notice of appeal within 30 days after entry of the appealable decision or judgment of which he complains, unless a motion for new trial, or a motion in arrest of judgment, or a motion for judgment notwithstanding the verdict has been filed. OCGA § 5-6-38. [Cits.] The failure to file a notice of appeal within the time required by statute is one of the statutory grounds for dismissal of the appeal. OCGA § 5-6-48 (b) (1). [Cits.]” Mathis v. Hegwood, 169 Ga. App. 547, 548 (314 SE2d 122) (1984).

Decided May 11, 1989.

Charles F. Johnson, for appellant.

J. Douglas Sexton, for appellee.

Appellant’s notice of appeal states he is appealing from the denial of his motion to strike a portion of the jury verdict and the judgment. A motion to strike is not one of the three statutory motions which extend the time for filing a notice of appeal. OCGA § 5-6-38. It might be construed as a motion to set aside the judgment. A motion to set aside, while not enumerated in OCGA § 5-6-38, “is itself, when overruled, appealable. . . .” Johnson v. Barnes, 237 Ga. 502, 503 (229 SE2d 70) (1976). “A motion to set aside must be predicated upon some nonamendable defect which does appear upon the face of the record or pleadings, unless the defect involves a jurisdictional error. . . .” OCGA § 9-11-60 (d). While appellant’s concern about the verdict may be viewed as a nonamendable defect upon which to base a motion to set aside (see Covington v. Saxon, 163 Ga. App. 646 (2) (295 SE2d 105) (1982)), appellant’s failure to follow the procedures for discretionary appeal require us to dismiss the appeal. OCGA § 5-6-35 (a) (8). See In re Booker, 186 Ga. App. 614 (367 SE2d 850) (1988).

Appeal dismissed.

Deen, P. J., and Birdsong, J., concur.


author: Sognier, Judge.

text:
    A89A0186.
    WARE v. THE STATE.
    (382 SE2d 383)
   Sognier, Judge.

Jarvis Ware was convicted of aggravated assault and he appeals.

1. Appellant contends the trial court erred by allowing evidence of a similar transaction because the State failed to give notice of its intended use of such evidence within ten days before trial as required by Uniform Superior Court Rule 31.1. The record reveals that the State’s motion to present the evidence was filed nine days before trial. The assistant district attorney stated to the trial court that he had discussed the matter with appellant’s counsel prior to the filing of the motion, and appellant’s counsel informed the court he had had an opportunity to check out the evidence contained in the motion. The trial court found that in the absence of any real prejudice to appellant, it would shorten the notice period and admit the evidence. We find no abuse of the trial court’s discretion here and thus find no basis for reversal of appellant’s conviction. See Thompson v. State, 186 Ga. App. 421, 422-423 (2) (367 SE2d 586) (1988).

Decided May 11, 1989.

Ralph M. Hinman III, for appellant.

Jack O. Partain III, District Attorney, Cindy Morris, Assistant District Attorney, for appellee.

2. Appellant contends the trial court erred by denying his motion to suppress evidence, two spent .22 shell casings, seized from appellant’s automobile in a search pursuant to a warrant because the officer expressed doubts about the truthfulness of the information he relied upon in obtaining the search warrant. At the hearing on the motion Investigator Terry Neal of the Dalton Police Department testified that he investigated the assault victim’s report that appellant, who was driving a 1977 Oldsmobile 98, had shot at her while she was in her car. Neal testified that there were three bullet holes in the victim’s automobile, and the two shells were visible on the dash of a 1977 Oldsmobile found at appellant’s home and identified by the victim as the vehicle involved in the assault. Although the transcript of the hearing reveals that Investigator Neal was doubtful whether the victim was able to see that it was appellant in the Oldsmobile, the officer did not doubt the veracity of the victim nor the truthfulness of her identification of the Oldsmobile as the vehicle involved in the assault. The record thus does not support appellant’s contention that Investigator Neal did not believe the information given him by the victim about the Oldsmobile upon which he relied to obtain the search warrant, and accordingly we find no merit in appellant’s claim that the search warrant was illegal. See Thomas v. State, 173 Ga. App. 481, 482-483 (1) (326 SE2d 840) (1985).

Judgment affirmed.

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


text:
    A89A0285.
    THE STATE v. WINGO.
    (382 SE2d 384)
   Sognier, Judge.

The Superior Court of Hall County granted Ronald Clarence Wingo’s motion to suppress and the State appeals.

On the evening of February 19, 1988, Sergeant Dan Bishop and several other officers with the Hall County Sheriffs Department executed a search warrant for the apartment of Jimmy and Tammy Strickland to search for amphetamines. Bishop testified that while he was inside the Stricklands’ apartment, he saw appellee drive up in front of the apartment building and park two parking spaces down from the door to the Stricklands’ apartment, in between their apartment and the neighboring apartment. Appellee did not leave his vehicle. Bishop stated that he knew appellee from other dealings and search warrants involving narcotics, but could not remember ever making a case against appellee, although Bishop was allowed to testify that he had heard appellee was on probation for a drug violation. After waiting a few moments, Bishop and another officer went outside, drew their service revolvers, and approached appellee in his car. Bishop testified that upon making eye contact with appellee, the officer apprised a “shocked” look on appellee’s face. Appellee’s vehicle was in reverse and was moving backward, but appellee stopped when Bishop so .ordered him. Bishop testified that appellee’s vehicle “only moved about a foot or two at the most” before appellee stopped. Appellee was ordered out of his vehicle and was patted down and a film canister was found in his pocket. The officers took appellee into the residence, at some point opening the film canister and finding it contained white powder (later determined to be cocaine). While appellee was being frisked, Bishop searched the automobile and after appellee was taken inside the residence the search was continued, revealing marijuana in the dash and a pistol in a jacket in the back of the vehicle.

The State contends the trial court erred by determining that it failed to meet its burden of showing that the officers had probable cause to seize appellee and search his vehicle. “[P]robable cause concerns probabilities: ‘“. . . They are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” (Cit.)’ [Cit.]” Schmidt v. State, 188 Ga. App. 85, 87-88 (372 SE2d 440) (1988). The only facts adduced by the State giving rise to any suspicion of criminal activity on appellee’s part, as revealed by the record and noted by the trial court, were appellee’s act in pulling into a parking space in an apartment complex near an apartment being searched for illegal drugs reportedly sold there; the officer’s identification of appellee as one previously involved in contraband-related searches; and the movement backward of one to two feet of appellee’s car as the officers approached the vehicle with pistols drawn, which, as the trial court noted, considering that appellee stopped the car immediately upon being directed to do so, “can hardly be considered to have been ‘flight.’ ”

In its arguments before this court, the only other factor urged by the State to support the existence of probable cause is Bishop’s experience in narcotics investigations. The State does not assert that the trial court failed to consider properly the evidence but rather urges this court to reevaluate the conclusion drawn by the trial court from that evidence and make a finding that probable cause did exist. However, it is well established that “ ‘[f] actual and credibility determinations . . . made by a trial judge after a suppression hearing must be accepted by appellate courts unless such determinations are clearly erroneous. (Cits.)’ [Cit.] Since there is evidence in the record to support the trial court’s action, we may not disturb it.” State v. Louis, 185 Ga. App. 529, 530 (364 SE2d 896) (1988).

Decided May 11, 1989.

C. Andrew Fuller, District Attorney, William M. Brownell, Jr., Assistant District Attorney, for appellant.

Herman A. Watson III, for appellee.

Judgment affirmed.

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


text:
    A89A0395.
    THE STATE v. FREEMAN.
    (382 SE2d 664)
   Benham, Judge.

This is an appeal by the State from an order dismissing one count of an indictment. Among other offenses, appellee was indicted for trafficking in cocaine. The indictment tracked the statute and alleged that appellee was in actual possession of the cocaine. See OCGA § 16-13-31, prior to the 1988 amendment. Appellee filed a demurrer which the trial court treated as a plea in abatement. In the pertinent portion of that pleading, appellee contended that he was only in constructive possession of the contraband. The parties stipulated that the trial court could consider the evidence adduced at the hearing on the motion to suppress, and the trial court found that appellee was, indeed, only in constructive possession of the cocaine.

“While such an allegation [, that appellee was only in constructive possession of the cocaine, as opposed to actual possession,] might have been the basis for a valid defense to the [trafficking charge], if it could have been proven, it does not point to any defect in the indictment itself. Therefore, it does not constitute a valid basis for a plea in abatement.” Callahan v. State, 148 Ga. App. 555 (2) (251 SE2d 790) (1978). That being so, the trial court erred in dismissing the trafficking count of the indictment returned against appellee.

Judgment reversed.

Deen, P. J., and Birdsong, J., concur.

Decided May 11, 1989.

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellant.

Brooks S. Franklin, for appellee.


text:
    A89A0538.
    MIDDLEBROOKS v. THE STATE.
    (382 SE2d 385)
   Sognier, Judge.

Andre Middlebrooks was convicted of the offenses of robbery by intimidation, aggravated assault, armed robbery, and possession of a firearm during the commission of a crime, and he appeals.

Appellant’s convictions stem from two separate incidents, which were joined for trial. Construed to support the verdict, the evidence introduced at trial showed that on December 3,1987, Karen Harrison left her employment as a registered nurse in Atlanta and drove to her home in DeKalb County. At approximately 1:00 a.m., as she exited from her car in the parking lot of her condominium complex, she was approached by two men, one of whom grabbed her, demanded her keys, and hit her on the head with a black, dull, heavy, metallic object. She was rendered unconscious and her purse, keys, and car were taken. She could not see the man who held her but saw the other man well enough to describe him, and later identified him as appellant with 85 percent cértainty from a photographic showup. She also positively identified appellant in court.

On December 4,1987, at about 11:00 p.m., Meredith Lang arrived home from a party and parked her car in front of her home in a different condominium complex in DeKalb County. As she was locking her vehicle, she was approached by two men. One had a gun, and he held it to Lang’s abdomen and demanded her purse and her keys. She crouched down and he put the gun to her neck and hit her on the side of her head. Her keys, car, fur coat, watch, and jewelry were taken. She waited until she heard the men leave in her car and called the police. She described the mem who held a gun on her and hit her, and later identified him as appellant with 78-80 percent certainty from a photographic array. She also positively identified appellant in court.

DeKalb County Police Officer William Davis received a “lookout” on Lang’s car later that evening when another officer radioed that he had spotted the car, which had been reported stolen. Davis joined the other officer and they intercepted Lang’s vehicle. A chase ensued and the stolen vehicle collided with Davis’ patrol car. Three young men emerged and fled, dropping a fur coat later identified as Lang’s. Davis followed one man, Benjamin E. Alford, who was arrested and subsequently pled guilty and testified at the trial of appellant and a co-defendant, Dewayne Cloud. Alford testified that he had been promised nothing for his testimony, and was testifying because he knew that appellant and Cloud had “hurt the lady.” He testified that he, appellant, and Cloud had hitched a ride with an unidentified friend of appellant’s, and when a Mazda RX-7 was driven past them, appellant asked the driver to follow it. They followed the Mazda to what was later identified as Lang’s condominium complex, the three passengers got out, and the driver left. Alford testified that he walked away, and appellant and Cloud approached the Mazda. He heard a woman scream, saw Cloud standing over the victim, and then appellant and Cloud picked him up in the Mazda and they drove off with appellant driving. He testified that both Cloud and appellant had guns.

Atlanta Police Officer W. P. Jabaley testified that he arrested Cloud on December 4, 1987, and that Cloud had in his possession a pistol and three sets of keys. DeKalb County Police Officer Ronald Wright testified that he had been involved in investigating the Harrison incident on December 3rd, and when he heard about the December 4th (Lang) incident and chase he responded to assist. He spotted a man running on the street and followed him behind a house. The suspect, later identified as appellant, was pulled from beneath bushes behind the house and arrested.

1. Appellant contends the evidence was insufficient to support the conviction, arguing specifically that the evidence was in conflict regarding which role appellant played in each of the incidents. However, the evidence showed that both the victim and an accomplice testified that appellant had a gun on the night of the Lang incident, and Lang identified appellant positively as the man who held a gun on her, thus supporting appellant’s conviction for armed robbery in that incident. Although appellant was indicted for armed robbery in the Harrison incident, the trial court directed a verdict of acquittal as to the armed robbery of Harrison but allowed the jury to consider the lesser included offense of robbery by intimidation. The testimony of Harrison as well as the keys found on appellant’s co-defendant, one set of which was identified by Harrison as hers, amply support appellant’s conviction of robbery by intimidation. We find that the evidence meets the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), enabling a rational trier of fact to convict appellant of those crimes.

2. Appellant enumerates as error the trial court’s failure to give his requested charge that “[t]he identification by a witness of a person is necessarily a matter of opinion.” While the trial court did not give that requested charge, the trial court did charge the jury extensively regarding identification and credibility. The court’s charge included the instruction that “[ijdentity is a question of fact that must be determined by the jury. It is dependent upon the credibility of the witness or witnesses offered for this purpose. You have the right to take into consideration all of the factors that I previously charged in regarding credibility of witnesses. Some of the factors you may also consider in assessing the reliability of identification are as follows; first, the opportunity of the witness to view the alleged perpetrator at the time of the alleged incident; next, the witness’ degree of attention toward the alleged perpetrator at the time of the alleged incident; next, the level of certainty demonstrated by the witness as to his or her identification; next, the possibility of mistaken identity; next, whether the witness’ identification may have been influenced by factors other than the view had by the witness, if any, at the time of the alleged incident; next, whether the witness, on any prior occasion, has failed to identify the defendant in this case as the alleged perpetrator.”

Decided May 11, 1989.

William T. Hankins III, for appellant.

Robert E. Wilson, District Attorney, Michael D. Thorpe, Eleni Ann Pryles, Assistant District Attorneys, for appellee.

We find that the trial court’s charge on identification was thorough and covered substantially the same principle requested by appellant. Accordingly, the trial court’s failure to give the charge in the exact language requested by appellant was not error. Caldwell v. State, 167 Ga. App. 692, 695 (6) (307 SE2d 511) (1983).

Judgment affirmed.

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


text:
    A89A0637.
    KIMBRELL v. EFFINGHAM BOARD OF TAX ASSESSORS.
    (382 SE2d 388)
   Sognier, Judge.

The Effingham County Board of Tax Assessors filed an application for contempt against Arnold Kimbrell, a dealer in mobile homes. After various delays, a hearing was held on the matter and the trial court found that Kimbrell had failed to produce his financial records as subpoenaed, see OCGA § 48-5-300 (a), and had failed to file a proper and timely return with the tax commissioner. The trial court held that Kimbrell owed back ad valorem taxes and penalties on thirty trailers for the 1987 tax year. Kimbrell appeals.

Appellant contends the evidence was not sufficient to support the judgment. At the hearing, Henry Wilkins, the Tax Commissioner of Effingham County, testified that because of appellant’s tardiness in making his 1986 return, Wilkins contacted the manager of appellant’s mobile home dealership lot in January 1987 about the inventory on the lot so the taxes owed on all inventory present as of January 1, 1987, could be determined. Wilkins testified he drove past appellant’s lot the latter part of January and observed at least twenty mobile homes on the lot, although he did not stop and count the precise number. Appellant submitted information enabling the tax commissioner to compute the taxes due on the seven mobile homes appellant admitted were present on the lot as of January 1st. Wilkins responded by letter to appellant informing him that the tax amount on the seven mobile homes set forth in the letter was due prior to April 1st, that the tax figures would be different and penalties applied if payment was not returned before April 1st, and that based on Wilkins’ belief that more than seven mobile homes were on appellant’s lot on January 1st, a subpoena of appellant’s records was being requested in accordance with OCGA § 48-5-300 (a). Appellant failed to return the taxes due on the seven mobile homes prior to April 1st so his check, reflecting the pre-April 1st amount, was rejected.

After numerous attempts to verify the number of mobile homes held as inventory on appellant’s lot as of January 1, 1987, Wesley Corbitt, an Effingham County auditor, went to appellant’s new business location in Screven County and performed an inventory. A physical inventory no longer being possible, Corbitt testified that the inventory he made was based on the vendor invoices which indicated what mobile homes were billed and shipped to appellant’s Effingham County lot. After cross checking with the sales journal to determine what units had been sold, it was determined that thirty mobile homes had been delivered to appellant’s Effingham County business which were not sold prior to January 1987. Based on appellant’s statement to him that “all . but 11” of those mobile homes had been moved by appellant’s employees to Screven County before January 1st, Corbitt testified he went to the Screven County courthouse but was unable to find any documentation that appellant had filed a return in that county for any of the remaining mobile homes.

Appellant and his employees testified that all but seven of the mobile homes had been transported from Effingham County to Screven County prior to January 1,1987, but that no invoices or other documentation reflecting that movement had been made. Appellant presented no documentation to support his claim that the tax commissioner of Screven County had improperly allowed appellant to file his taxes for the mobile homes under the provisions for mobile vehicles rather than for mobile homes.

“In a bench trial the court sits as the trier of fact and [her] findings ‘shall not be set aside unless clearly erroneous . . .’ [Cit.] The ‘clearly erroneous’ test is the same as the ‘any evidence rule.’ [Cit.] Thus, an appellate court will not disturb fact findings of a trial court if there is any evidence to sustain them. [Cit.]” Allen v. Cobb Heating &c. Co., 158 Ga. App. 209, 210 (279 SE2d 505) (1981); OCGA § 9-11-52 (a). We find the evidence adduced at the hearing sufficient to sustain the trial court’s finding that appellant owed 1987 taxes in Effing-ham County on thirty mobile homes. Appellee proved thirty mobile homes were delivered to appellant’s Effingham County lot which were not sold prior to January 1987. Although appellant and his employees testified only seven mobile homes were in Effingham County on January 1, 1987, appellant failed to produce any invoices or Screven County returns to demonstrate that the units delivered to his Effing-ham County lot had indeed been moved to Screven County, and the testimony of appellant and his employees was directly controverted by Wilkins’ testimony that at least twenty units were still present on the lot in late January 1987. “ ‘In a case where the direct evidence is not all one way, or where there are proved facts and circumstances which could be taken as inconsistent with the direct positive testimony, the [trier of fact] may always consider the relationship and the feeling of the witnesses toward the parties, as well as all the facts and circumstances of the case, including the witnesses’ manner of testifying, their intelligence and number.’ [Cit.] In the case at bar, the [trier of fact] reasonably could have found that [appellant and his employees’] testimony was impeached. ‘ “Questions as to creditability and preponderance address themselves to the trier of facts. (Cits.). . . .” [Cit.]’ [Cits.]” Westinghouse Elec. Corp. v. Rider, 168 Ga. App. 136, 137 (1) (308 SE2d 378) (1983). Accordingly, the judgment of the trial court is affirmed.

Decided May 11, 1989.

Grady K. Reddick, for appellant.

Donald W. Ramsey, Jr., James B. Ashby, for appellee.

Judgment affirmed.

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


author: Deen, Presiding Judge.

text:
    A89A1135.
    JENKINS v. THE STATE.
    (382 SE2d 389)
   Deen, Presiding Judge.

Appellant Jenkins was found guilty of aggravated child molestation and sentenced to ten years’ imprisonment to be followed by ten years’ probation. After denial of his motion for new trial on the general grounds, he appealed to this court, enumerating as error the denial of his motion for directed verdict of acquittal. Held:

On appeal Jenkins contends that his motion should have been granted because the State presented “no direct evidence” of child molestation. He alleges that the evidence was all inadmissible hearsay, and that the child’s bleeding in the vaginal area was caused not by any act of his but by falling off a bicycle or, alternatively, by jumping off bunk beds. He further alleges that the State offered no evidence that any injury allegedly caused by the defendant occurred with the intent to arouse or satisfy sexual desire, as required by OCGA § 16-6-4(a).

1. Our scrutiny of the record in the instant case, including the trial transcript, reveals that the testimony which appellant characterizes as “hearsay” was actually given by the deputy sheriff and the social worker who had interviewed the seven-year-old victim when it was reported that the little girl had possibly been subjected to sexual abuse. During this interview the child had related the manner in which she had been hurt, and by whom, and had demonstrated what had happened by the use of anatomically correct dolls available at the site of the interview. At that time the child also stated that she had initially attributed the injury to a fall from her bicycle (according to the record, a traditional “girl’s bike” with no crossbar) because appellant had instructed her to say that and had threatened to beat her if she stated otherwise. Prior to receiving these two persons’ testimony, the court had interviewed the child and found present sufficient indicia of reliability; although the child herself did not testify as to the specifics of the incident, she was available during the entire proceedings and did testify on other matters. Cf. Ward v. State, 186 Ga. App. 503 (368 SE2d 139) (1988).

OCGA § 24-3-16 provides as follows: “A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.”

Thus, contrary to appellant’s allegation, sufficient competent evidence was adduced by the prosecution to withstand appellant’s motion for directed verdict of acquittal. Such a verdict is authorized only “[w]here there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or ‘not guilty.’ ” OCGA § 17-9-1 (a). The only witness to appear for the defense was Jenkins himself, whose testimony consisted chiefly of protestations of innocent affection for his girl friend’s children, coupled with unconvincing assertions about the cause of the injuries to the vaginal and rectal areas.

2. The record indicates that the trial court properly charged the jury on intent and the other elements of the offense charged, and that sufficient competent evidence on these points was adduced at trial to authorize the rational trier of fact to find appellant guilty as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided May 11, 1989.

Donald A. Starling, for appellant.

Harry D. Dixon, Jr., District Attorney, Albert H. Tester, Assistant District Attorney, for appellee.

The trial court did not err in denying appellant’s motion for directed verdict. His enumeration is therefore without merit.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


author: Birdsong, Judge.

text:
    A89A0094.
    POINTER et al. v. COOLEY.
    (382 SE2d 359)
   Birdsong, Judge.

This is an appeal by the plaintiffs Debra and Michael Pointer from a verdict for defendant, Charlene Cooley, in a suit arising out of a rear-end collision. Appellants assign two errors below. Held:

1. Appellants contend the evidence was insufficient to sustain the verdict for the defendant. The evidence was quite sufficient to sustain the verdict. Liability of the defendant Cooley, who rear-ended Pointer when Cooley’s foot slipped off the brake while she was stopped in a traffic jam, was not in issue. The issue was damages. There was evidence of pre-existing conditions of back and neck pain and injury through Pointer’s previous pregnancies and an earlier automobile accident. The subject of any injury she sustained in this present case was fully explored by both sides. On appeal, we do not weigh evidence, for the jury has already done that; and once the jury has done so, every inference and construction in the evidence is indulged in favor of the verdict so as to uphold it. Frost v. Williamson, 239 Ga. 266, 268 (236 SE2d 615); Bell v. Brewton, 139 Ga. App. 463, 464 (228 SE2d 600); and see G.E.C. Corp. v. Levy, 126 Ga. App. 604, 607 (1) (191 SE2d 461). Appellant’s first enumeration is without merit.

2. Pointer complains of legal error in the trial judge’s refusal to give the charge allowing damages for pain and suffering where there is “serious injury” pursuant to OCGA § 33-34-9 (a), even though the trial judge recognized the plaintiff had, under definition of that code section, suffered a “serious injury.”

This allegation of error is without merit. OCGA § 33-34-9 (a) is an insurance provision which is merely permissive in nature, in allowing recovery of damages for pain and suffering where a party has sustained “serious injury” as defined by OCGA § 33-34-2 (13), viz., certain injuries, or disability, or as in this case, medical expenses in excess of $500. Furthermore, there was a waiver on this point by counsel. See Sims v. Johnson, 185 Ga. App. 720 (365 SE2d 532); and see Brown v. Sims, 174 Ga. App. 243 (329 SE2d 523).

Decided April 19, 1989

Rehearing denied May 12, 1989.

Nickerson & Tuszynski, David E. Tuszynski, for appellants.

Spearman & Gaughen, Thomas G. Whatley, Jr., for appellee.

It is unclear what advantage the plaintiff appellant sought to gain by having the jury be advised under that insurance statute that “the defendant would be exempt from liability to pay damages to the plaintiff for pain [and] suffering” unless the conditions of the statute were met. In fact, the trial court gave the plaintiff the favor of a charge that she would be entitled to damages for pain and suffering as “a legal item of damages [for which the measure] is the enlightened conscience of impartial . . . jurors.” In fact, the trial court charged the jury at length on plaintiff’s entitlement to damages for pain and suffering, under far broader and more permissive standards than the restrictive ones in the permissive insurance statute. We find the plaintiff the beneficiary of the trial court’s charge and not the victim.

Judgment affirmed.

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


text:
    A89A0242.
    BOYER et al. v. KORSUNSKY, FRANK, ERICKSON ARCHITECTS, INC.
    (382 SE2d 362)
   Birdsong, Judge.

This is an appeal from the trial court’s order denying appellant’s petition to amend, set aside and vacate the foreign consent judgment from the Circuit Court of Wayne County, Michigan, entered on the general execution docket of DeKalb County.

On November 1, 1982, appellees filed a complaint in Wayne County, Michigan, for money damages in the amount of $28,587.29 plus interest arising from appellant’s alleged failure to pay the amount due on an open account. After protracted litigation, consent judgment was entered by the Wayne County Circuit Court on September 2, 1986. The consent decree provided that appellants/defendants “agree to pay and shall pay [appellees] the sum of $18,000.00 which includes all interest, attorney fees and costs, by paying $2000.00 on August 15, 1986 and $200.00 per month for 24 consecutive months . . . and further that the total balance remaining shall be due and payable to [appellees] on October 1, 1988.” The consent decree further provided that “in the event that any payment due hereunder is insufficient, dishonored or is not received by the [appellees’ lawyers] ... by the end of the business day on the 10th day of each and every respective month due, then the obligation hereunder shall be immediately considered in default and the Consent Judgment in the sum of $26,000.00 plus judgment interest from November 1, 1982 shall become immediately due and payable, less any payments received prior to default, which shall be credited first against interest and then against principal. ...”

Appellants performed in accordance with the terms of the consent judgment through April 1988. However, on May 11, 1988, appellees’ attorneys received from appellants a check for $200, which subsequently was returned unpaid due to nonsufficient funds. Appellees immediately instituted collection proceedings in this state, pursuant to the terms of the Consent Judgment, to collect the amount of $42,435.44. This amount includes the $26,000 default consent judgment amount as increased by the Michigan statutory judgment interest rate of 12 percent per year compounded annually since November 1, 1982.

Appellants assert that the trial court erred in failing to find that the Michigan consent judgment contains an illegal penalty unenforceable in this state. We disagree.

Appellants do not assert that the Michigan consent judgment was in violation of the public policy of that state, rather they assert that the provisions of the consent judgment constituted a penalty in violation of the public policy of the State of Georgia. We find the facts of this case distinguishable from Adams v. D & D Leasing Co., 191 Ga. App. 121 (381 SE2d 94).

A valid judgment of a sister state must be accorded full faith and credit “even though such a judgment could not have been obtained in our own courts because the underlying contract is void as against the state’s public policy.” Hargreaves v. Greate Bay Hotel &c., 182 Ga. App. 852 (357 SE2d 305), citing Fauntleroy v. Lum, 210 U. S. 230 (28 SC 641, 52 LE 1039) and Cannon v. Cannon, 244 Ga. 299 (260 SE2d 19). As a general rule, a consent judgment is entitled to full faith and credit in the same manner as any other judgment. See Campbell v. Campbell, 231 Ga. 214 (3) (200 SE2d 899). Thus, assuming arguendo the provision in this consent judgment was a penalty in clear violation of the public policy of this state, the Michigan consent judgment “is nevertheless entitled to full faith and credit.” Cannon v. Cannon, supra.

Moreover, we find the facts of all the cases relied upon by appellants to be distinguishable from the facts of this case.

Decided May 1, 1989

Rehearing denied May 12, 1989

Bondurant, Mixson & Elmore, H. Lamar Mixson, Joseph D. Young, for appellants.

Walker L. Chandler, for appellee.

Judgment affirmed.

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


author: Beasley, Judge.

text:
    A89A0732.
    CRUDUP v. THE STATE.
    (382 SE2d 391)
    Decided May 12, 1989.

      John N. Crudup, pro se.

      Richard H. Taylor, Solicitor, for appellee.
   Beasley, Judge.

Defendant appeals from his conviction of improper passing, OCGA § 40-6-42, arguing three enumerations all relating to his sentence.

Defendant was tried before the court and found guilty, granted a motion for new trial, tried by a jury and found guilty. Initially, he was sentenced to 12 months imprisonment, which was suspended, and $59.95 court costs.

The stipulated transcript of evidence of the second trial states: “the judge sentenced the Defendant to a 12 month suspended sentence upon payment of the $750 fine and a $50 statutory assessment.”

Defendant contends that this sentence violates the due process principle established in North Carolina v. Pearce, 395 U. S. 711 (89 SC 2072, 23 LE2d 656) (1969). See Hewell v. State, 238 Ga. 578 (234 SE2d 497) (1977); Anthony v. Hopper, 235 Ga. 336 (219 SE2d 413) (1975); Pressley v. State, 158 Ga. App. 638 (281 SE2d 364) (1981).

There being nothing in the record to explain the additional fine, we are constrained to agree.

The case is remanded for reconsideration of the sentence so that it conforms with the law established in the foregoing cases.

Judgment affirmed with direction.

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


text:
    A89A0480.
    BARNETT v. THE STATE.
    (382 SE2d 620)
   Beasley, Judge.

Barnett appeals his conviction and sentence for aggravated assault with the intent to rape, OCGA § 16-5-21 (a) (1).

1. Appellant contends that the trial court committed reversible error when it allowed the State to strike prospective juror Burdette in violation of Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). He maintains that the State’s explanation that it struck Burdette because members of her family had criminal records was disingenuous, that the family did not have a criminal history, and that the State’s real reason was racially motivated in that it did not want a second black member of the jury.

Following voir dire of the forty-two veniremen, three of whom were black, defendant, who is black, orally challenged the array on the basis that only 7.14 percent of the venire was black while the black population of the county was 11.4 percent resulting in a “comparative disparity of over 35 percent.” The court rejected the challenge.

A jury of twelve was selected. The trial court inquired if there were any exceptions to the twelve. The State had none; the defense indicated it did. The court for the purpose of the record then outlined the procedure it had followed in selecting the jury: The court had forty-two jurors qualified and then put the jurors on the defendant. The forty-two were divided into three panels of fourteen. Each panel was called into the box and a silent method of juror selection was employed so that the veniremen did not know whether or not they had been selected or excused or by whom. Panel one contained black venireman Gibson. Panel two contained black veniremen Woodruff and Burdette. Defendant’s challenge was only as to the racial composition of the forty-two in relation to the community and not as to the entire jury box.

The court noted that Gibson and Woodruff were both excused by the State and that Burdette was accepted. Defendant objected that of the three black potential jurors, only one was selected, that this raised a prima facie case for a Batson violation under Barton v. State, 184 Ga. App. 258 (361 SE2d 250) (1987) and that the State needed to come forth with explanations for striking the two black veniremen.

The court stated that without ruling that a prima facie showing had been made that it was going to ask the State to explain the strikes.

The State explained that Gibson was struck because she had a record of a “prior criminal instance” and because when questioned about her marital status, she indicated she was separated. The State said it struck Woodruff because he gave no employment history and because of his nearness in age to the defendant. The court inquired if there had been others out of the forty-two who were near in age to defendant and who had been accepted. The State said it did not remember or did not know but that it had accepted a couple of women who appeared to be fairly close in age to defendant but who had been struck by the defendant.

The court asked if Woodruff had been struck solely because of employment. The State reiterated that he had been struck because of unemployment and age. The court inquired if the State had accepted any unemployed veniremen and was told no. The defense interjected that its notes indicated that Woodruff was employed and argued that age was not sufficient justification for striking Woodruff. The clerk was directed to examine the take-down on the question of Woodruff’s employment. The record reflected that Woodruff was employed.

The court informed the State that its basis for excusing Woodruff was thus insufficient and that for jury selection, the parties would return to the second panel which contained Woodruff and start from there. The State would not strike Woodruff, he would be on the defendant and selection would go on through the panel. The court indicated that although Burdette had been accepted by the State, it could rethink its thoughts on her but since she was black the State would need a reason if it sought to excuse her.

Selection proceeded with defendant accepting Woodruff and the State striking Burdette. Defendant again objected that inasmuch as only one of three blacks was selected, there was prima facie discrimination under Barton. The State explained that Burdette was struck because records showed that members of her family had numerous criminal offenses. See statement of facts in Sparks v. State, 185 Ga. App. 225, 226 (363 SE2d 631) (1987). The court accepted the explanation, an alternate was selected, and the jury with one black member was sworn.

Defendant’s argument is that the State’s claim that Burdette’s family had a criminal history was false. Defendant did not request that the trial court require the State to produce evidence for its claim about Burdette’s family nor did defendant seek additional time or means to attempt to refute it. Defendant did not, after trial, produce any evidence to support his allegation that Burdette’s family did not have a criminal history. We cannot say that the court’s acceptance of the State’s explanation was clearly erroneous. See Evans v. State, 183 Ga. App. 436, 440 (3) (359 SE2d 174) (1987).

Even if we assume appellant is correct as to criminal history, his burden is not fulfilled.

“To establish a prima facie case of purposeful discrimination in jury selection under Batson, ¿ defendant must show ‘that he is a member of a cognizable racial group, (cit.) . . . that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race, . . . that these facts and any other relevant circumstances raise an inference that the prosecutor used (the) practice (of peremptory strikes) to exclude the veniremen from the petit jury on account of their race. . . .’” Barton, supra at 259 (2). Statistics, as “other relevant circumstances,” may raise an inference of racial motive or intent but may also be considered on the larger question of the existence of a prima facie case of discrimination. Aldridge v. State, 258 Ga. 75, 79 (4) (365 SE2d 111) (1988).

Black persons composed 7.14 percent of the forty-two from whom the jury was selected and 8.33 percent of the jury of twelve. There was a net increase of more than a percentage point in the black composition of the jury following peremptory strikes. Even if the State’s use of its strike against Burdette, considered in isolation and with the assumption of the truthfulness of appellant’s claims, could raise the inference of racial intent, the resulting composition of the jury does not lead to a prima facie case of discrimination. Id. See also Williams v. State, 258 Ga. 281, 285 (6) (368 SE2d 742) (1988).

2. Appellant’s plea in bar and motion to suppress identification by the victim at the one-on-one show-up were based on suggestiveness because he was handcuffed and surrounded by at least two police officers. Appellant gives as authority Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) (1972) and other cases dealing with Federal Constitutional mandates.

The evidence is construed so as to uphold the verdict. Thomas v. State, 175 Ga. App. 873, 874 (1) (334 SE2d 903) (1985). Barnett entered Lillian’s Bakery one morning and asked the sole present female employee a question and then left. Around 8:30 a.m. the next day, Barnett returned. The same employee was again alone. The store was lit by two long flourescent lights and the store’s front and side were glass. The employee’s attention was first drawn to Barnett’s entry when the bell over the front door rang. The employee went behind the register counter and asked if she could help him. Barnett asked for a paper sack. The employee could not provide one and Barnett walked over to look at some displays. The employee was able to view Barnett from head to toe. She became nervous because Barnett loitered and did not seem to want anything. The employee watched him as she resumed decorating cakes. Barnett kept asking about various things and left after about ten or fifteen minutes.

A short time later, Barnett came back, dressed the same but now carrying a paper sack. The employee was still the only other person present. Barnett looked at the cakes and asked prices. The employee rang up some goods Barnett said he wanted. When it came time to pay, Barnett stuck his hand in his pocket and said he left his wallet at home and did not have any money. During this encounter, the employee was two or three feet from Barnett and was paying attention to him.

The employee went back behind the counter to finish decorating cakes. Barnett asked questions about the cakes and started to come around the corner where the employee was working. The employee told Barnett he was not allowed behind the counter. Barnett walked to the other side of the counter. He leaned over it and kept watching the employee, making her nervous. As the employee had her back to Barnett, he came up behind her and stuck the paper bag which was on his left hand in her left side. He said, “I’ve got a gun. Don’t give me any trouble, Bitch.”

The employee told Barnett money was in the register and to get it. He replied that he did not want the money. He told the employee to get in the back room. She refused. He pushed her four or five feet into the back room and up against some shelves. He hit her, threatened to kill her, and instructed her to get on the floor and remove her clothes. She refused and he hit her again, on the left side of her face. He started pulling at her shirt and telling her to take her clothes off. The employee told Barnett the man next door at the garage would be in to get his coffee in just a minute. Barnett warned her not to scream but she screamed for “Don.” Barnett again warned her and said he would kill her. The employee screamed for “Don” again and Barnett ran out. The employee watched Barnett run down the street and then summoned the police, to whom she described the perpetrator.

Five or ten minutes later, the police brought Barnett to the bakery for the employee to look at. They took him out of the police car and stood him in front of the window. The employee got a good look at him and was positive that Barnett was the man who had earlier assaulted her. He was dressed the same but his pants were rolled up-

“ ‘The evil to be avoided is the . . . misidentification of an accused. The holding of Neil v. Biggers, 409 U. S. 188, 196-201 (93 SC 375, 34 LE2d 401) is that a two-step analogy is to be used. First, an impermissibly suggestive identification procedure is to be avoided. Only if it was suggestive need the court consider the second question — whether there was a substantial likelihood of irreparable misidentification. [Cit.]’ [Cit.] ...

“Although one-on-one show-ups have been sharply criticized, and are inherently suggestive ([cit.]), the identification need not be excluded as long as ‘under all the circumstances the identification was reliable notwithstanding any suggestive procedure. (Cits.)’ (Cit.) Our inquiry, therefore, must focus upon whether, under the totality of the circumstances, there was a substantial likelihood of irreparable misidentification. ‘(T)he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.’ Neil, supra, 409 U. S. at 199-200.” Killens v. State, 184 Ga. App. 717, 720 (3) (362 SE2d 425) (1987).

Decided May 5, 1989

Rehearing denied May 15, 1989

James C. Wyatt, for appellant.

Stephen F. Lanier, District Attorney, Harold Chambers, Assistant District Attorney, for appellee.

The victim spent a substantial amount of time with the perpetrator in a well-lighted setting, seeing him on three separate occasions. She was not a casual observer but paid close attention and was able to describe him in great detail. The show-up was close in time to the criminal incident and the victim was unequivocal in her identification of defendant at the show-up.

Under the totality of these circumstances, the victim’s identification was sufficiently reliable for the jury to consider notwithstanding any suggestive procedure. See also Tillman v. State, 184 Ga. App. 210, 212 (3) (361 SE2d 66) (1987).

In addition, the victim testified that her in-court identification of the defendant was based on her recollection of what happened to her during the incident. Her identification of the defendant had an independent basis other than the prior show-up identification. Killens v. State, supra at 721 (3).

Judgment affirmed.

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


text:
    A89A0695. A89A0696. A89A0697.
    DOUG HOWLE’S PACES FERRY DODGE, INC. et al. v. CHRYSLER CREDIT CORPORATION. CHRYSLER CORPORATION et al. v. DOUG HOWLE’S PACES FERRY DODGE, INC. et al. DOUG HOWLE’S PACES FERRY DODGE, INC. et al. v. CHRYSLER CREDIT CORPORATION et al.
    (382 SE2d 364)
   Deen, Presiding Judge.

In July of 1981 L. D. “Doug” Howie (Howie) and a business associate (not a party to the instant appeals) obtained a franchise from the Chrysler Motors Corporation (Chrysler Motors) to sell Chrysler-produced vehicles at a location in the Buckhead area of Atlanta under the name “Doug Howie’s Paces Ferry Dodge, Inc.” According to industry custom Howie (acting in his capacity as dealer) made arrangements with Chrysler Credit Corporation (CCC) for “floor-plan” financing of the vehicles; i.e., to provide financing of the vehicles between delivery from Chrysler Motors and sale to the consumer. The property on which the dealership was located had originally been owned by Chrysler but had been sold to a third party, from whom Howie and his associate purchased .it and in turn sold it to an investment partnership in which Howie had an ownership interest, and from which Howie and the associate took back a long-term lease.

In 1985 the dealership was showing a loss for the second consecutive year and had also fallen behind by some $350,000 in its obligations to CCC. In the latter part of that year negotiations began for recapitalization of the dealership, for Howie to buy out his associate, and for the latter to be released from his personal guaranties.

At some time before April 1986 Chrysler obtained control of the business site in exchange for part of the financing. In the meanwhile, an inventory audit of the dealership revealed that the debt owed to CCC had increased, and a demand was made that the dealership turn over to CCC the title documents to the vehicles which served as security under the “floor plan” financing arrangement. At this time Howie allegedly asked CCC’s manager whether his credit line were being canceled, and the manager allegedly replied that it was not. There is evidence of record that the credit line was actually canceled briefly, for a period of one to six days, depending on whether business days or calendar days are counted. The manager subsequently denied any knowledge of the temporary cancellation.

The recapitalization was achieved in April of 1986, but the dealership nevertheless continued to do badly; Howie alleged that the reason was that Chrysler Motors was shipping insufficient or inappropriate inventory. Howie allegedly sought assistance both from Chrysler (or Chrysler Motors) and from CCC; all allegedly refused to aid him in finding relief from his problem. On August 25, 1986, CCC filed a complaint against Howie and the dealership in the Fulton Superior Court, alleging in Count I that the defendants owed nearly a quarter of a million dollars under the “floor plan” agreement and, in Count II, that a slightly larger amount was also due. CCC sought a writ of possession. On August 27 Howie (hereinafter used to mean both Howie and, where appropriate, the dealership) moved for a temporary restraining order. On August 29 the court entered an order forbidding Howie to transfer to himself “in any fashion” any proceeds of vehicles in which CCC had a perfected security interest; i.e., vehicles, fixtures, accounts and other intangibles, and all other property (or proceeds thereof) included in the security agreement, the master credit agreement, and/or the wholesale financing agreement. On that same date plaintiff amended its complaint to allege conversion and breach of obligation (waste, neglect of duties, and default); more than $3,000,000 was sought on these counts.

On September 5,1986, Howie moved to dismiss the action and on September 8 filed an answer and counterclaim. On September 16 the trial court granted CCC a writ of possession, and on September 29 granted Howie’s motion to add as defendants in counterclaim Chrysler, Chrysler Motors, and Gary Bland, CCC’s local manager. Howie’s motion to dismiss was denied December 19, and on January 14, 1987, CCC’s motion to add as a defendant the First National Bank of Atlanta (where Howie had deposited in his personal account funds allegedly derived from the dealership) was granted. The bank is not a party to the instant appeals.

In the Spring of 1987 the court permitted the addition, as a party to the action, of Howie’s wife, Carol, in whose name the Howie residence was titled and who had obtained a mortgage on the same in the course of the effort to recapitalize the dealership. During that same period Chrysler Motors moved for summary judgment and Chrysler for partied summary judgment. In September Howie and the dealership moved for partial summary judgment on CCC’s conversion and breach of obligation claims.

In November 1987 the trial court entered the following order on Chrysler Motors’ and Chrysler’s motions for summary judgment and partial summary judgment: (1) Chrysler’s motion based on its assertion that it was not a party to the 1981 franchising agreement or the 1986 amendment thereto was denied (the corporations in the interim had undergone certain restructuring and changes in nomenclature); (2) Chrysler and Chrysler Motors’ joint motions as to all claims advanced by Howie as an individual were denied; (3) Chrysler and Chrysler Motors’ joint motion as to all claims based on alleged violations of the Georgia Motor Vehicle Franchise Practices Act, OCGA § 10-1-620 et seq., was also denied. In December 1987 Howie’s motion for partial summary judgment on Counts V (conversion) and VII (apparently a typographical error for Count VI, breach of obligation: neither the original complaint nor either of its two amendments includes a Count VII) was denied.

On February 9, 1988, the trial court denied certain portions of motions having to do with sufficiency of answers and admissibility of certain evidence, primarily affidavits. On March 4 the court entered an order denying all but one part (the alleged refusal to honor Howie’s franchise and to permit him to obtain a foreign car franchise) of appellees Chrysler’s and Chrysler Motors’ motions for summary judgment on Count I of Howie’s counterclaim, which counts consisted of such allegations as conspiracy, interruption of the credit line, refusal to permit expansion, etc. In the same order the trial court also denied appellees’ motion for summary judgment on Count II of the counterclaim (fraudulent misrepresentation and fraudulent acts during the recapitalization transaction); granted partial summary judgment on Count II (interference in Howie’s home mortgage arrangements and relationships with CCC); and granted summary judgment on the remaining counts of the counterclaim.

On March 21, 1988, the trial court awarded Chrysler and Chrysler Motors summary judgment on all claims based on the federal Automobile Dealers’ Day in Court Act (15 USC §§ 1221-1225); granted the motions of CCC and its manager as to five counts of the amended counterclaim against CCC and its manager (Count I, bad faith; Count II, conspiracy; Count III, tortious interference with contract; Count IV, bad faith and stubborn litigiousness; Count VI, conversion and breach of certain agreements); and denied the joint motion for summary judgment of CCC and its manager with respect to non-collateral personal property. On April 20, 1988, the court denied Howie and the dealership’s motion for reconsideration of the March 21 order, supra, and the instant appeal followed. In each case the appellants assign as error the trial court’s rulings on the above-cited motions.

In Case No. A89A0695 the following errors were enumerated: (1), (2), (3), (4), (6) the trial court erred in granting summary judgment on Counts V, VI, VII, IX, and IV, respectively, of the counterclaim; (5) the court erred in granting partial summary judgment on Count I of the counterclaim; and (7) the court further erred in dismissing appellants’ claims under Count VIII of the counterclaim.

Enumerated as error in Case No. A89A0696 are (1) the trial court’s failure to grant summary judgment to Chrysler and Chrysler. Motors on all claims under the Georgia Motor Vehicle Franchise Practices Act, on the basis that the Act cannot constitutionally be applied under the facts of the case; (2) the trial court erred in failing to grant summary judgment on all claims under the Act because the Act allegedly seeks to impair contractual obligations and is therefore facially unconstitutional; (3) the court erred in denying summary judgment on all claims against Chrysler because the latter had not injured the defendants; (4) the court erred in denying summary judgment on all claims asserted by Howie individually because the latter lacked standing to assert them.

Eight errors were enumerated in Case No. A89A0697: The court erred in ruling as it did on those counts of the counterclaim dealing with evidentiary matters (enumerations 6, 7); the court erred in granting summary judgment on all claims asserted under the Automobile Dealers’ Day in Court Act (enumeration 8); and the court further erred in granting summary judgment on certain counts of the counterclaim enumerated as errors 1-5.

We note that in addition to the briefs and supplemental briefs filed by the parties in these three cases, the Georgia Automobile Dealers Association has filed an amicus curiae brief on behalf of the appellees in Case No. A89A0696. Held:

The essence of summary judgment, OCGA § 9-11-56 (c), is that “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . .” In order to counter a properly supported motion for summary judgment, the opposing party “must set forth specific facts showing that there is a genuine issue for trial.” OCGA § 9-11-56 (e).

Applying this standard to the multiple motions for summary judgment or partial summary judgment filed by the various parties to these protracted, complicated, and bitterly contested cases, we find that there is sufficient competent evidence to support the trial court’s rulings on summary judgment and partial summary judgment under the controlling statute, supra. In Case No. A89A0695 the record reveals that in all but four instances the movants failed to pierce the opposing parties’ allegations and show the non-existence of a genuine issue of material fact. OCGA § 9-11-56 (c); Holland v. Sanfax Corp., 106 Ga. App. 1 (126 SE2d 442) (1962). Thus they did not merit an award of summary judgment (except in the four particulars noted). Therefore, we find no error in the trial court’s denial of summary judgment on all except those four portions of the motions.

Likewise, in Case No. A89A0696, the record indicates that Chrysler and Chrysler Motors failed to meet the statutory requirements for summary judgment either on their claims regarding the constitutionality uel non of the Georgia Motor Vehicle Franchise Practices Act or on their claims regarding proper parties. Denial of the motions on these claims was therefore proper, and none of the four enumerations has merit.

In Case No. A89A0697 we find no error in the court’s rulings in favor of CCC and against Howie on the parts of their motions which deal with evidentiary matters (Enumerations 6, 7). The affidavits of record meet the requirements of competency, specificity, and personal knowledge. OCGA § 9-11-56 (e). We likewise find authority in the record for the award of summary judgment on Counts I-IV and VI of Howie’s counterclaim (Enumerations 1-5), inasmuch as no genuine issue of material fact inheres in these allegations. The same is true of the claims based on the federal Automobile Dealers’ Day in Court Act (Enumeration 8).

Judgments affirmed.

Birdsong and Benham, JJ., concur in the judgments only.

Decided May 1, 1989

Rehearings denied May 15, 1989

Grizzard, Simons, Martin & Wills, Warren W. Wills, Jr., Dale C. Ray, Jr., Lloyd H. Thomas III, for Doug Howie et al.

Alston & Bird, Michael A. Doyle, J. Kennard Neal, for Chrysler Corp. & Chrysler Motors Corp.

Greene, Buckley, DeRieux & Jones, Gregory J. Digel, F. Taylor Putney, for Chrysler Credit Corp.