text:
    A99A1244.
    K-MART CORPORATION et al. v. LOVETT.
    (525 SE2d 751)
   Miller, Judge.

Helen Lovett, along with three acquaintances, entered a K-Mart store. Lovett was shopping alone when one of the acquaintances abruptly approached Lovett and unexplainedly hurried her out of the store. Kathy Rasure, acting within the scope of her employment as K-Mart’s loss control manager, followed Lovett and the acquaintance to recover stolen merchandise. Although Lovett informed Rasure that she had no concealed goods and also opened her purse and pulled out her clothes to show Rasure that she concealed nothing, Rasure escorted Lovett and her acquaintance to the loss control office. In the office, Lovett again opened her purse and informed Rasure that she had no concealed goods. When the responding police officers arrived, Rasure informed the officers that she had taken Lovett and the three others into custody for shoplifting. Rasure requested that the officers arrest them and signed a Verification of Citizen’s Arrest and Request for Transport, which stated that (1) Rasure made a citizen’s arrest of Lovett; (2) Rasure requested police transport of Lovett to the appropriate court of facility; (3) Rasure would immediately proceed to the court to seek the issuance of an appropriate warrant or petition; and (4) no officer or employee of the police force advised or encouraged Rasure to arrest or prosecute Lovett. The officer searched and handcuffed Lovett and the others, led them through the front doors of K-Mart, and transported them to the police department.

At the police department, the officer handcuffed Lovett and her acquaintances together during the three-hour wait to appear before the municipal court judge. Based on Rasure’s statements, the judge drafted an affidavit for Lovett’s arrest for shoplifting. Rasure signed the affidavit, and Lovett was taken to jail.

For approximately two days, Lovett was isolated in an observation room. Afterwards she was allowed to take a shower, then transferred to the general population cell. No bed being available, Lovett was given a mattress and instructions to sleep on the floor of the roach-infested room. A few days later, Lovett was assigned a bunk bed and remained in the general population cell for approximately two weeks before being assigned to a single cell. Lovett was incarcerated for 24 days until the court dismissed the charge at the preliminary hearing.

Lovett sued Rasure and K-Mart Corporation for malicious prosecution and intentional infliction of emotional distress. Rasure concedes that she never saw Lovett shoplift and points to one of the police officers as the person responsible for Lovett’s arrest. A jury awarded Lovett $125,000 in actual damages and $150,000 in punitive damages. After denial of their motion for new trial, K-Mart and Rasure appealed, contending that the court erred in rendering judgment against them and in denying their motion for new trial.

Where a jury returns a verdict and it has the approval of the trial judge, we must affirm on appeal if there is any evidence to support it. As long as there is some evidence to support the verdict, we will not disturb the denial of a motion for new trial. We construe the evidence with every inference and presumption in favor of upholding the verdict, even where the evidence is in conflict. Since there is evidence to support the jury verdict, we affirm.

1. K-Mart and Rasure contend that the trial court erred in admitting the Verification of Citizen’s Arrest and Request for Transport into evidence. In support of this contention, their brief argues entirely different bases from those raised before the trial court. Our review is limited to those grounds presented to and ruled upon by the trial court. Because K-Mart and Rasure do not argue such grounds on appeal, this enumeration fails.

2. Arguing there was no evidence of malice, K-Mart and Rasure contend that the evidence was insufficient to sustain a verdict for malicious prosecution. Malice, an essential element of malicious prosecution, may be inferred from a total lack of probable cause. Because Rasure’s charge was dismissed at the preliminary hearing, the jury could properly infer malice.

Malice may also be inferred “if defendant [s’] acts were wanton or were done with a reckless disregard for or conscious indifference to the rights of the plaintiff.” Rasure admitted that she did not suspect Lovett of shoplifting, yet she made a citizen’s arrest of Lovett, then requested the police officers to transport Lovett to the municipal court. At municipal court she signed an affidavit which contained false accusations, understanding at the time of signing that the affidavit would cause Lovett’s arrest. We conclude that the evidence authorized the jury to find that Rasure acted with malice.

3. Arguing that Rasure simply did not read the Verification of Citizen’s Arrest and Request for Transport nor the affidavit before signing them, K-Mart and Rasure characterize Rasure’s conduct as mere negligence. They contend that such conduct does not meet the requisite level of outrageousness and egregiousness to sustain a verdict for intentional infliction of emotional distress.

While it is true that some claims as a matter do law do not rise to the requisite level of outrageousness and egregiousness, this is not one of them. A jury could find that Rasure’s actions were “of such serious import as to naturally give rise to such intense feelings of humiliation, embarrassment, fright or extreme outrage as to cause severe emotional distress.”

When evaluating whether the objected-to conduct can reasonably be characterized as outrageous or egregious, a jury may consider evidence of a defendant’s malicious purpose or wanton disregard of a plaintiff’s rights. Rasure testified that she knew, when she signed the affidavit, that by signing the affidavit, Lovett would be jailed. She also testified that she did not know how long Lovett would be jailed. Nevertheless, neither Rasure nor any other K-Mart agent took any steps to end Lovett’s incarceration and prosecution for 24 days after she was jailed.

The evidence authorized the jury to find Rasure’s conduct outrageous and egregious, rather than merely tasteless or rude, so as to support recovery for intentional infliction of emotional distress.

4. K-Mart and Rasure claim that one of the responding police officers stated in the loss control room that he recognized Lovett as a “big time shoplifter.” They concede that they do not know which officer uttered the remark nor do they know whether the arresting officer heard or responded to it. When they proffered to elicit the remark from Lovett, Lovett moved to exclude it. The trial court granted the motion on the basis that the probative value of the evidence was substantially outweighed by its prejudicial effect. K-Mart and Rasure complain that the trial court abused its discretion.

A trial judge may exercise discretion in excluding relevant evidence if its probative value is substantially outweighed by the risk that its admission will confuse the issue, mislead the jury, or create substantial danger of undue prejudice. Here Lovett had never been arrested for shoplifting or any other crime before this incident. Considering the extremely prejudicial nature of the anonymous comment, the trial court did not abuse its discretion in disallowing the evidence. Moreover, hearsay testimony is inadmissible and wholly without probative value unless it comes within a recognized exception to the hearsay rule, which this did not.

5. K-Mart and Rasure enumerate as error that the trial court charged the jury: “if it is found that [Rasure’s] persuasion was a determining factor in inducing the officer’s decision or that she gave information which she knew to be false and so unduly influenced the authorities, she may be held liable.” Contending that the charge was not adjusted to the evidence, K-Mart and Rasure argue that “[t]here is absolutely no evidence anywhere in the record that Ms. Rasure lied to or [misled] the authorities in any way.”

Yet Rasure admitted that she never saw Lovett shoplift. A police officer testified, and the Verification of Citizen’s Arrest and Request for Transport showed, that Rasure requested that Lovett be transported to municipal court for shoplifting. Rasure signed a false affidavit, which procured Lovett’s incarceration. Because evidence showed that Rasure’s false statements influenced the authorities, the jury charge was adjusted to the evidence.

6. K-Mart and Rasure enumerate as error the giving of the jury charge:

[i]f you should find that the defendants continued with the prosecution after they knew that the accused was not guilty of the offenses charged, it may raise an inference that the defendants acted with malicious intent, but such inference may be rebutted by other evidence.

They argue that the record is totally devoid of any facts that they continued prosecuting Lovett.

This contention is without merit. Lovett’s appearance before the municipal court amounted to a prosecution. K-Mart and Rasure knew that Lovett was not guilty of shoplifting yet never withdrew the accusation. Lovett’s prosecution continued until the judge dismissed the charge 24 days later.

7. In two additional enumerations, K-Mart and Rasure complain of other jury charges. But they have not preserved such issues for appeal. After the court charged the jury, K-Mart and Rasure’s counsel simply stated: “We have the ones that we entered that were not given and we didn’t withdraw and we take exception.” This exception fails to comply with the statutory requirement: “[I]n all civil cases, no party may complain of the giving or the failure to give an instruction to the jury unless he objects thereto before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” Because K-Mart and Rasure did not state distinctly the matter to which they objected nor the grounds of the objection, there is nothing for us to review.

8. K-Mart and Rasure contend that the amount of damages was excessive. The question of damages is one for the jury. For us to disturb a jury’s award, it must be so flagrantly excessive or inadequate, in light of the evidence, as to create a clear implication of bias, prejudice, or gross mistake by the jurors.

Lovett proved each element of malicious prosecution and of intentional infliction of emotional distress, and there was evidence from which the jury could find that Lovett had suffered damages. Even where the evidence authorizes a greater or lesser award than that actually made, the appellate court will not disturb it unless it is so flagrant as to shock the conscience. K-Mart and Rasure have pointed to no evidence that implies jury bias, prejudice, or gross mistake. We cannot say that the verdict was excessive.

9. K-Mart and Rasure contend that the evidence presented at trial was insufficient to sustain an award of punitive damages. “Recovery in actions for malicious prosecution shall not be confined to the actual damage sustained by the accused but shall be regulated by the circumstances of each case.” Punitive damages may be awarded to penalize, punish, or deter a defendant in such actions where a plaintiff proves by clear and convincing evidence that the defendant’s actions showed “willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to [the] consequences.” The jury specially found that punitive damages should be awarded and, as part of their punitive damages verdict, found that K-Mart and Rasure had a specific intent to harm Lovett.

By holding K-Mart and Rasure liable for malicious prosecution, the jury necessarily found that K-Mart and Rasure acted with malice. Moreover, the evidence supported a finding that K-Mart and Rasure acted with a conscious indifference to consequences. The appropriate measure of damages in this case was “the enlightened conscience of impartial jurors,” and we will not disturb the jury’s verdict.

Judgment affirmed.

Barnes and Ellington, JJ., concur.

Decided November 19, 1999

Alston & Bird, James C. Grant, Jeffrey J. Swart, F. Earl Wiggers, Jr., James M. Green, for appellants.

Noah S. Rosner, Stephen F. Mackie, for appellee.

        Willis v. Brassell, 220 Ga. App. 348 (469 SE2d 733) (1996).

       Id.

       Id.

        Verde v. Granary Enterprises, 178 Ga. App. 773, 774-775 (6) (345 SE2d 56) (1986).

       See OCGA § 51-7-40; Willis, supra, 220 Ga. App. at 350.

       OCGA § 51-7-44; Great A & P Tea Co. v. Burgess, 157 Ga. App. 632 (2) (278 SE2d 174) (1981).

        Melton v. LaCalamito, 158 Ga. App. 820, 824 (2) (c) (282 SE2d 393) (1981) (criminal charge dismissal, following a preliminary hearing presenting essentially the same facts known to business owner at the time of the arrest, is evidence that probable cause was lacking).

       (Citation and punctuation omitted.) Willis, supra, 220 Ga. App. at 352 (3) (evidence that the defendant failed to make reasonable inquiry, failed to disclose material information, and falsified material information was sufficient basis for finding that defendant instigated the prosecution with malice).

        Gordon v. Frost, 193 Ga. App. 517, 521 (1) (388 SE2d 362) (1989); see Mears v. Gulfstream Aerospace Corp., 225 Ga. App. 636, 641 (484 SE2d 659) (1997) (mere tasteless, rude or insulting social conduct will not give rise to intentional infliction of emotional distress).

       (Citations, punctuation and emphasis omitted.) Gordon, supra, 193 Ga. App. at 521 (1).

       Id.

        Webster v. Boyett, 269 Ga. 191, 195 (1) (496 SE2d 459) (1998).

        Hardee's Food Systems v. Green, 232 Ga. App. 864, 866 (1) (502 SE2d 738) (1998).

       OCGA § 51-7-42; see Branson v. Donaldson, 206 Ga. App. 723, 725-726 (1) (c) (426 SE2d 218) (1992).

        Willis, supra, 220 Ga. App. at 352 (2) (prosecution began at the magistrate’s hearing and ended at the preliminary hearing).

        See Alpha Beta Dickerson Southeastern v. White Co., 235 Ga. App. 273, 276 (2) (509 SE2d 351) (1998) (where an appellant did not state distinctly the matter to which it objected and the grounds of the objection, there was nothing for the court to review).

       OCGA § 5-5-24 (a).

       See Evans Toyota v. Cronic, 233 Ga. App. 318, 322 (3) (a) (503 SE2d 358) (1998) (objection stating that “I object to every charge that I tendered for you to consider that you didn’t give” was insufficient).

       OCGA § 51-12-12.

        Turpin v. Worley, 206 Ga. App. 341, 343 (1) (425 SE2d 895) (1992).

       Id.

       OCGA § 51-7-47.

       OCGA § 51-12-5.1 (b).

        Stubbs v. Harmon, 226 Ga. App. 631, 633 (1) (b) (487 SE2d 91) (1997); see Atlantic Zayre v. Meeks, 194 Ga. App. 267, 270 (2) (390 SE2d 398) (1990).


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A99A1567.
    EVANS v. THE STATE.
    (525 SE2d 780)
   Pope, Presiding Judge.

Richard Allen Evans was convicted of theft of one bag of cotton candy by shoplifting while at Six Flags amusement park and for disorderly conduct during the ensuing investigation. He appeals on four grounds. Because we find no error, the convictions are affirmed.

1. “[T]he state must prove all material allegations in an indictment which describe the offense or the particular manner in which the offense was committed.” Smith v. State, 202 Ga. App. 664, 666 (415 SE2d 481) (1992). Here, although the indictment alleged that Evans took “the property of Six Flags, a retail establishment,” proof at trial showed the victim was “a leasing company, Jay Vending, that was inside Six Flags.”

A variance in proof from that alleged in the indictment is fatal only if two crucial requirements are not met. These are “(1) that the accused be definitely informed as to the charges against him, so that he is able to present his defense, and (2) that he may be protected against another prosecution for the same offense.” (Citations and punctuation omitted.) Battles v. State, 262 Ga. 415, 417 (5) (420 SE2d 303) (1992).

The indictment informed Evans that he had stolen cotton candy while at Six Flags on August 17, 1997. He was fully informed of the charges against him, and he has not asserted any prejudice resulting from not knowing the precise identity of the vendor. Cf. Butler v. State, 170 Ga. App. 257, 258 (1) (316 SE2d 841) (1984) (exact identity of the victim of conversion not required between indictment and evidence); Bryant v. State, 155 Ga. App. 621 (2) (271 SE2d 875) (1980) (same). And, there is no danger of a second prosecution for the same offense. See Battles, 262 Ga. at 417 (5).

2. The trial court correctly denied Evans’s request for a new trial on the ground of newly discovered evidence. Evans was aware of the evidence before the trial, and he failed to use due diligence to acquire it. Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) (1980); Carl v. State, 234 Ga. App. 61-62 (1) (506 SE2d 207) (1998).

3. Evans contends his statements were insufficient to support a charge of disorderly conduct because they did not incite Officer Estes to take offensive action and because they were not “fighting words.” Evans responded to the officer’s questions about the cotton candy by repeatedly saying, “F— that, that does not have s— to do with us.” Officer Estes further testified that, “[Evans] stated to me that he was going to go to his vehicle, get his ‘pop,’ while pointing his hand at me like a pistol, said, ‘pop, pop, pop,’ to me. That’s when he started walking towards his vehicle.” Estes felt threatened, and he called for backup.

OCGA § 16-11-39 (a) (3) provides in part that a person commits disorderly conduct where the person,

[w]ithout provocation, uses to or of another person in such other person’s presence, opprobrious or abusive words which by their very utterance tend to incite to an immediate breach of the peace, that is to say, words which as a matter of common knowledge and under ordinary circumstances will, when used to or of another person in such other person’s presence, naturally tend to provoke violent resentment, that is, words commonly called “fighting words.”

To uphold a conviction of disorderly conduct for using fighting words, at least part of the alleged statements must be abusive or opprobrious. See OCGA § 16-11-39 (a) (3); Crolley v. State, 182 Ga. App. 2, 4 (2) (354 SE2d 864) (1987). Further, “fighting words” can include specific threats to cause violence where they tend to provoke violent resentment.

As was observed in Chaplinsky v. New Hampshire, 315 U. S. 568, 573 (62 SC 766, 86 LE 1031): “The English language has a number of words and expressions which by general consent are ‘fighting words,’ when said without a disarming smile. . . . Such words, as ordinary men know, are likely to cause a fight. So are threatening, profane, or obscene revil-ings.”

Anderson v. State, 196 Ga. 468, 470 (26 SE2d 755) (1943). The circumstances surrounding the incident are relevant to the determination. Person v. State, 206 Ga. App. 324 (1) (425 SE2d 371) (1992).

Decided November 19, 1999.

Coatsey Ellison, for appellant.

Barry E. Morgan, Solicitor, Lawton W. Scott, Jessica K. Moss, Nathan J. Wade, Assistant Solicitors, for appellee.

Here, Evans threatened that he was going to get a gun and shoot Officer Estes, and Estes felt threatened. But more importantly, Evans made a statement which under the circumstances was plainly designed to goad or incite the only officer present who was trying to handle a difficult situation involving several people. A rational juror could find that the statement was disrespectful of, directly challenged, and abused Estes’s authority. Estes was a corporal with Six Flags Security and had been in the position for only one and one-half months. The fact that Evans did not get Officer Estes to react is not determinative. Davenport v. State, 184 Ga. App. 214-215 (361 SE2d 219) (1987) (decided when OCGA § 16-11-39 (a) (1) was numbered 16-11-39 (1)). Under the circumstances, the facts supported a conviction for a violation of OCGA § 16-11-39 (a) (3).

4. Evans contends remarks made by the state during opening and closing improperly put his character in issue, but there is no transcript of these events in the record.

Where the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court under the provisions of OCGA § 5-6-41 (f). When this is not done, there is nothing for the appellate court to review.

(Citations omitted.) High v. Zant, 250 Ga. 693, 698 (11) (300 SE2d 654) (1983).

Judgment affirmed.

Smith, J, concurs. Eldridge, J, concurs in Divisions 1, 2 and 4 and concurs in judgment only as to Division 3.

       For example, in Anderson v. State, 231 Ga. App. 807, 809 (1) (499 SE2d 717) (1998), the defendant called the sheriff a “no good son of a bitch” and threatened to kick his “ass.” In Nunn v. State, 224 Ga. App. 312 (1) (a) (480 SE2d 614) (1997) (physical precedent), the defendant “disparaged the dignity of motherhood, childhood and the intellect of law enforcement officers.” In Person v. State, 206 Ga. App. 324, 325 (1) (425 SE2d 371) (1992), the defendant accused the officer of acting in a racist manner in addition to cursing at the officer and screaming in his face “I’m not going to any g — d—n jail and I’m not wearing any mother-f — g handcuffs.” In Evans v. State, 188 Ga. App. 347 (1) (373 SE2d 52) (1988), the defendant called the officer a “g— d-liar” and told the officers to “f— o — .”


author: McMurray, Presiding Judge.

text:
    A00A0194.
    FERRI v. PUCKETT et al.
    (525 SE2d 779)
   McMurray, Presiding Judge.

Appellant-plaintiff Ferri appeals the trial court’s grant of appel-lee-defendant Puckett’s out-of-term motion to vacate and set aside the judgment against appellee-defendant. Appellee-defendant has filed his motion to dismiss appellant-plaintiff’s appeal contending that there is no final judgment from which this direct appeal lies. OCGA § 5-6-34 (a). We agree. Held:

Decided November 19, 1999.

Parker & Lundy, William L. Lundy, Jr., Charles E. Morris, Jr., for appellant.

Mundy & Gammage, John S. Husser, Macey, Wilensky, Cohen, Wittner & Kessler, Michael C. Kaplan, Susan L. Howick, for appel-lees.

“ ‘[T]he grant of a motion to set aside a judgment, like the grant of a motion for new trial, leaves the case still pending in the court below and thus is not a final judgment.’ [Cit.]” Franklin v. Collins, 162 Ga. App. 755 (293 SE2d 364). Inasmuch as appellant has not complied with the interlocutory appeal procedure and there is no certificate of the superior court as required by OCGA § 5-6-34 (b), this appeal is premature and must be dismissed for want of jurisdiction. Court of Appeals Rule 41 (c).

Appeal dismissed.

Johnson, C. J, and Phipps, J., concur.

       In the underlying action, appellant-plaintiff brought suit upon a promissory note, thereafter, amending his complaint to allege fraud against the appellee-defendant.


author: Smith, Judge.

text:
    A99A0873.
    SERPENTFOOT v. THE STATE.
    (524 SE2d 516)
   Smith, Judge.

Appellant, previously named Anne Otwell and now known as “Serpentfoot,” appeals from an order revoking her previously suspended sentence. She contends that the trial court erroneously calculated her remaining time in jail and that certain language should be removed from the trial court’s order. We find no error, and we affirm.

Serpentfoot was found guilty by a jury in April 1995 of three counts of disrupting a lawful meeting and two counts of public indecency. The trial court sentenced her in May 1995 to 12 months on each count, with each count to be served consecutively. The sentence on each count was suspended, however, on condition that Serpentfoot not violate any state law or city or county ordinance and that she be banned from Floyd County during the time of the sentence. The State filed a motion to revoke the suspended sentence in May 1998 alleging, among other things, that Serpentfoot had committed the offenses of cruelty to animals and criminal trespass. During the hearing on the motion, evidence was presented that Serpentfoot had shot and killed her neighbors’ dog simply because the ten-year-old, crippled dog had been scratching on Serpentfoot’s door and annoying her. We note that during the revocation hearing, Serpentfoot’s counsel stated that Serpentfoot “would like me to inform the court that she admits to the violation of probation regarding her refusal to be banished from Floyd County.”

The trial court entered an order revoking the aggregate of Serpentfoot’s suspended sentence and sentencing her to serve 25 months and 12 days as directed by the Commissioner of the State Department of Corrections. Serpentfoot filed a motion for new trial alleging, among other things, that the trial court erroneously calculated the amount of time left in her sentences, and she filed an amended motion for new trial asking the trial court to strike a sentence from its order of revocation. Following a hearing, the trial court denied the motions. Serpentfoot appeals these rulings. We find no error, and we affirm.

1. Serpentfoot has filed a number of pro se motions in this court which indicate, among other things, that she has “released” her court-appointed counsel. Nothing in the record shows, however, that Serpentfoot has sought such a “release” from the trial court or that counsel has been permitted by the trial court to withdraw. We must therefore dismiss Serpentfoot’s pro se motions and proceed with her appeal on the merits. See generally Mallory v. State, 225 Ga. App. 418, 420 (1) (483 SE2d 907) (1997).

2. Serpentfoot first contends that the court failed to give her credit for the time period during which her convictions on the public meeting disruption and indecency charges were on appeal. She contends that her sentence began to run when she was actually sentenced on May 5, 1995, while the State maintains the sentence commenced several months later when this court issued the remittitur affirming Serpentfoot’s convictions.

To the extent we understand her argument, Serpentfoot argues that OCGA § 5-6-45 (a) controls the issue raised by this appeal, contending that “the filing of a notice of appeal serves as a supersedeas only in cases where the death penalty has been imposed or where the defendant is admitted to bail.” According to Serpentfoot, because she “was not sentenced to death and was not granted bail, her sentences ran continuously from the date they were imposed.” This argument ignores, however, the language of OCGA § 17-10-9, which provides that a sentence must be computed from the date of the appellate court’s remittitur, unless the defendant is incarcerated pending his or her appeal. If the defendant is incarcerated, the time of the original imposition of sentence until the time the remittitur is issued “shall be counted as time spent under sentence for all purposes.” OCGA § 17-10-9. But as stated in Huff v. McLarty, 241 Ga. 442 (246 SE2d 302) (1978), defendants who remain at large receive no “credit for any time before entering upon their incarceration or other penalty. [Cits.]” (Emphasis supplied.) Id. at 445. Clearly, the import of OCGA § 17-10-9 is to give a defendant credit for time served. Here, during the time period between the date of her notice of appeal and the date of the remittitur issued by this court, Serpentfoot remained “at large” due to the nature of her sentence — a suspended one. At the very least, her sentence could not have begun to run until the remittitur affirming her convictions was issued. Consequently, Serpentfoot has raised no error with respect to the trial court’s computation of her sentence.

Decided November 3, 1999

Reconsideration denied November 22, 1999

Karen S. Wilkes, for appellant.

Serpentfoot, pro se.

Tambra P. Colston, District Attorney, Leigh E. Patterson, Assistant District Attorney, for appellee.

3. We find no merit in Serpentfoot’s contention that the trial court should have stricken from its order its statement “that acts of gratuitous violence toward animals are often manifestations of symptoms of more deep seeded [sic] violent tendencies.” The fact that Serpentfoot committed a “gratuitous act of violence” against an animal was supported by the record, and the remaining portion of the trial court’s statement concerning this matter was, as described by the trial court, simply an observation.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.


text:
    A99A1784.
    In the Interest of C. S. G., a child.
    (525 SE2d 106)
   McMurray, Presiding Judge.

C. S. G. appeals from a juvenile court order adjudicating him delinquent based on his commission of acts constituting the offenses of a battery and a terroristic threat if committed by an adult. The evidence which authorizes this adjudication reveals C. S. G. and an accomplice attacked and physically assaulted the victim as the victim was walking to school, and that C. S. G. finished the assault by displaying a handgun (which was tucked in his pants and concealed under his shirt) to the victim and then warning the victim — “ ‘watch [your] back.’ ” Held:

1. C. S. G. contends the evidence is insufficient to authorize the juvenile court’s findings that he is a delinquent child based on his commission of acts constituting the offenses of a battery and a terror-istic threat if committed by an adult. We do not agree.

Contrary to C. S. G.’s assertion, displaying a handgun to another under threatening circumstances may constitute an act constituting a terroristic threat if committed by an adult. Heaton v. State, 214 Ga. App. 460 (448 SE2d 49). A person commits the offense of a terroristic threat when he threatens to commit any crime of violence with the purpose of terrorizing another person. OCGA § 16-11-37 (a). In the case sub judice, the victim testified that C. S. G. and an accomplice attacked and physically assaulted him as he was walking to school, and that C. S. G. finished the assault by displaying a handgun and then warning him — “ Vatch [your] back.’ ” The victim also testified that his “jaw was swollen” after the attack. This testimony was corroborated by an eyewitness who did not see C. S. G. display a handgun, but who saw C. S. G. strike the victim and heard C. S. G. threaten the victim during the assault. This evidence is sufficient to authorize the juvenile court’s finding, beyond a reasonable doubt, that C. S. G. is a delinquent child based on his commission of acts constituting the offenses of a battery in violation of OCGA § 16-5-23.1 (a) and a terroristic threat in violation of OCGA § 16-11-37 (a) if committed by an adult. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); In the Interest of J. M., 237 Ga. App. 298 (1) (513 SE2d 742). Slight corroboration of the circumstances during which a terroristic threat is uttered is all that is necessary to satisfy OCGA § 16-11-37 (a)’s requirement that the victim’s account of the terroristic threat be corroborated. See Sampson v. State, 209 Ga. App. 213, 215 (1) (433 SE2d 136). This is so because, if there is any evidence of corroboration, this Court will not second-guess the factfinder and pass on the corroborating evidence’s probative value. In the Interest of J. L. W, 213 Ga. App. 630 (1) (445 SE2d 575).

2. Although C. S. G. was charged in one count of the delinquency petition with acts constituting the offense of aggravated assault if committed by an adult, the juvenile court adjudicated C. S. G. delinquent under this count based on his commission of acts constituting the lesser included offense of a terroristic threat if committed by an adult. C. S. G. contends this adjudication cannot stand because the evidence does not show that a terroristic threat is a lesser included offense of the charged aggravated assault. He reasons that he was deprived of the requisite notice of the terroristic threat charge by this variance between the allegata and probata. We do not agree.

Decided November 9, 1999

Reconsideration denied November 22, 1999

Ann N. Garner, James C. Bonner, Jr., for appellant.

Paul L. Howard, Jr., District Attorney, Cassandra Kirk, Elizabeth A. Baker, Assistant District Attorneys, for appellee.

The offense of terroristic threat may be a lesser included offense of aggravated assault, as a matter of fact, if the facts which are the basis of the aggravated assault charge and the evidence proffered to establish this crime are also sufficient to establish the commission of a terroristic threat. Messick v. State, 209 Ga. App. 459, 460 (1) (433 SE2d 595). In the case sub judice, the delinquency petition alleged that C. S. G. committed an act constituting the offense of aggravated assault if committed by an adult “by displaying [a] pistol in a threatening manner to the victim. . . .” From the evidence presented at the delinquency hearing to support this allegation, the juvenile court would have been authorized to find that C. S. G. used a handgun to commit an act constituting the offense of aggravated assault, if committed by an adult (i.e., place the victim in reasonable apprehension of immediately receiving a violent injury), or that C. S. G. used a handgun to commit an act constituting the offense of a terroristic threat if committed by an adult (i.e., threaten to commit a crime of violence with the purpose of terrorizing the victim). Thus, the offense of terroristic threat was included, as a matter of fact, in the charged delinquent act constituting the offense of aggravated assault if committed by an adult. C. S. G. was therefore properly apprised before the delinquency hearing that he could be found delinquent based on his commission of an act constituting the lesser included offense of terroristic threat if committed by an adult. See id.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

       This witness inconsistently testified on cross-examination that he did not see his friend, C. S. G., strike the victim. This inconsistency was properly resolved by the juvenile court. See Berry v. State, 268 Ga. 437, 438 (1) (490 SE2d 389). On appeal, we must construe this conflict so as to uphold the juvenile court’s findings of fact and conclusions of law. In the Interest of R. L. W., 225 Ga. App. 253, 254 (2) (483 SE2d 361).


author: Phipps, Judge.

text:
    A99A2494.
    BURCHFIELD et al. v. MADRIE.
    (524 SE2d 798)
   Phipps, Judge.

Connie Madrie negligently caused a rear-end collision which involved Gard Burchfield’s car. Months after the collision, a torn rotator cuff was diagnosed in Burchfield’s right shoulder. He and his wife sued Madrie to recover for personal injuries and loss of consortium. The Burchfields appeal the judgment on a jury verdict in Madrie’s favor. They claim the trial court erred by denying their motion for new trial on general grounds, by giving jury charges on nominal damages and preexisting injury, and by refusing to admit Burchfield’s hospital records in evidence. Because the evidence did not demand a verdict for the Burchfields and no reversible error has otherwise been shown, we affirm.

On December 7, 1995, Madrie failed to stop her car when approaching a red light and rear-ended an automobile stopped at the light. That automobile was propelled into a stationary compact car being driven by Burchfield. In turn, Burchfield’s car hit a pickup truck in front of it. The trial court directed a verdict in favor of the Burchfields on the issue of Madrie’s negligence.

The collision caused moderate damage to Madrie’s car and slight damage to the others. Burchfield testified that the impact of the collision caused his shoulder to pop and severe pain to radiate down the right side of his body. Emergency medical personnel on the scene offered to take him to the emergency room, but instead he opted to be seen by his company physician, Dr. Sherrer, later that day. Within the next month, Dr. Sherrer treated Burchfield on three occasions. Dr. Sherrer performed no diagnostic tests but determined that Burchfield had a sprained shoulder.

According to Burchfield, over the next several months he began experiencing a limitation of movement in his right arm. He began to have difficulty sleeping because of the worsening of pain and stiffness in his arm. As a result, he returned to see Dr. Sherrer in April 1996. After steroid treatment proved ineffectual, Dr. Sherrer ordered an MRI exam and referred Burchfield to Dr. McCluskey, an orthopedic surgeon specializing in shoulder injury.

Dr. McCluskey saw Burchfield on May 28,1996. According to Dr. McCluskey, Burchfield displayed physical symptoms consistent with a right shoulder rotator cuff injury at least four to five months old. On August 20, surgery was performed to repair a rotator cuff that was approximately 90 percent torn. Burchfield did not tell Dr. McCluskey that he had experienced any problems with his arm or shoulder before the collision, and the doctor testified that the December 7 collision “certainly could have” caused the shoulder injury. Dr. McCluskey explained that the physical findings together with occurrences since the collision indicated that the collision had caused the injury, although he was unable to perform any test that would establish from a medical standpoint that Burchfield’s injury actually occurred as a result of the collision. In the doctor’s words, with this type of injury a limited range of motion develops over a period of time, and “everything fit together.”

Dr. McCluskey acknowledged that repetitive use of the arm (for pushing, pulling, or lifting), recreational activities, or any type of shoulder injury caused by a fall or jarring of the arm can cause a rotator cuff injury. But he testified that sports-related shoulder injuries are usually different from Burchfield’s.

Burchfield and his wife testified that before this collision he had experienced no problems with his right arm or shoulder. On April 7, 1995, Burchfield was, however, involved in another automobile collision quite similar to the one in this case. He testified that he was not injured in the earlier collision and did not seek medical treatment after it. Even though Burchfield was described by himself and by his wife as not being athletic, their testimony, and that of their daughter, showed that before the collision he had begun to display an interest in sports by taking golf and tennis lessons and pitching softball with the family in their backyard. In 1994, he took beginner’s golf lessons for about two months but did not thereafter play the game because he had no clubs. He took beginner’s tennis lessons once or twice a week for about three months during the fall of 1995, but only played tennis several times after the lessons were completed.

1. The Burchfields contend that the court’s charge to the jury on preexisting injury was not supported by the evidence.

The trial court charged the jury that if it found that, at the time of the incident, Burchfield had any apparent or dormant preexisting condition, Madrie would not be relieved of liability, but the Burch-fields could recover damages if Madrie’s negligence resulted in any aggravation of such condition.

The Burchfields argue that this charge should not have been given because there was no evidence of any preexisting injury. It is true that there is no direct evidence of preexisting injury. But there is no direct evidence that this collision caused Burchfield’s injury. Because there is circumstantial evidence from which the jury could have inferred that his sporting activities and the earlier collision caused or contributed to his injury, the court did not err in giving the charge on preexisting injury.

2. The Burchfields’ charge that the court erred in denying their motion for new trial on evidentiary grounds raises the question of whether the evidence demanded a verdict in their favor.

A reviewing court must view the evidence in a light most favorable to upholding the jury’s verdict and any evidence which supports the jury’s verdict is sufficient to sustain the trial court’s denial of a motion for new trial based on the sufficiency of the evidence. [Cits.]

The jurors are the sole and exclusive judges of the weight and credit given the evidence. The question of proximate cause is one for the jury except in “ ‘palpable, clear, and indisputable’ ” cases.

The trial court having granted the Burchfields’ motion for directed verdict on the issue of negligence, and there being undisputed evidence that Burchfield incurred at least $16,000 in medical expenses in treating his shoulder injury, the question for the jury was whether a proximate causal relationship was established between the injury and the collision caused by Madrie. Here, as in Johnson v. Cooper, the jury could have found that the force of the collision was unlikely to have caused Burchfield’s injury. Thus the jury could have concluded that the injury was attributable to Burchfield’s other activities and that the Burchfields did not carry their burden of proving proximate cause. The jury was not bound to accept Dr. McCluskey’s conclusions regarding causation. “Regardless of whether we might find it unlikely that [Burchfield’s injury] would coincidentally manifest [itself] . . . after [this] accident, that is a matter for the jury to decide, and it is not within our province to second-guess their factual findings. [Cits.]”

3. The Burchfields also charge the court with error in failing to admit Burchfield’s hospital records in evidence under the business records exception to the hearsay rule.

The court refused to admit these records in evidence after finding that they were merely cumulative of Dr. McCluskey’s testimony. Because the Burchfields have made no contrary showing on appeal, they have failed to carry their burden of showing error affirmatively by the record.

4. Finally, the Burchfields contend that the court erred in instructing the jury that it could award nominal damages if the injury were small or mitigating circumstances strong. Because the jury failed to award any damages whatsoever, this charge was not harmful even if it was error.

Judgment affirmed.

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

Decided November 9, 1999

Reconsideration denied November 22, 1999.

F. Houser Pugh, for appellants.

Self Mullins, Robinson, Marchetti & Kamensky, J. Ronald Mullins, Jr., Miller & Towson, Wallace Miller III, Joel A. Howe, Page, Scrantom, Sprouse, Tucker & Ford, Robert C. Brand, Jr., for appellee.

       Compare Wright v. Millines, 217 Ga. App. 464, 467 (5) (458 SE2d 488) (1995).

        Clark v. United Ins. Co. of America, 199 Ga. App. 1, 3 (1) (404 SE2d 149) (1991).

         Willis v. Brassell, 220 Ga. App. 348 (469 SE2d 733) (1996).

        Woodbury v. Whitmire, 246 Ga. 349, 350 (1) (271 SE2d 491) (1980).

       234 Ga. App. 753, 756 (1) (507 SE2d 559) (1998).

       Compare Moore v. TCI Cablevision, 235 Ga. App. 796, 798 (2) (510 SE2d 96) (1998); Potts v. Roller, 232 Ga. App. 696 (503 SE2d 587) (1998); Cochran v. Lynch, 126 Ga. App. 866 (2) (192 SE2d 165) (1972).

       See Hambrick v. Makuch, 228 Ga. App. 1, 3 (2) (b) (491 SE2d 71) (1997).

        Johnson v. Cooper, supra, 234 Ga. App. at 756.

       See Weathers v. Foote & Davies Transport Co., 189 Ga. App. 134, 136 (2) (375 SE2d 97) (1988); Minter v. Leary, 181 Ga. App. 801 (1) (354 SE2d 185) (1987).


text:
    A99A1136.
    ZACK’S PROPERTIES, INC. v. GAFFORD et al.
    (526 SE2d 80)
   Phipps, Judge.

William Gafford and his wife brought this action against Zack’s Properties, Inc. to recover damages for personal injuries and loss of consortium. Zack’s appeals judgment on a jury verdict in the Gaf-fords’ favor. Zack’s complains of (1) the trial court’s denial of its motion for directed verdict, (2) the court’s overruling of its objection to medical bills not authenticated by medical testimony, and (3) the court’s failure to give various requested jury instructions. We find no reversible error and affirm.

On the afternoon of May 18, 1993, Gafford went grocery shopping at Zack’s Big Buy in McDonough. He had shopped there twice a week for 25 years and always parked in a space close to the entrance because he walks with a cane due to a childhood handicap. On May 18, Gafford parked in a more distant parking space because the parking lot was full. He negotiated his way into the store without incident.

He exited the store pushing a cart and took the same route through the parking lot he had used to enter the store. As he walked through the parking lot, the front wheel of the cart hit a pothole, causing both the cart and Gafford to topple to the ground. Gafford testified that he had not seen the pothole when he was entering the store on May 18 or on any prior visit to the store. And he explained that he did not notice the hole as he was exiting the store, because his grocery cart was filled with bags and he was attempting to monitor “pretty heavy” traffic in the parking lot. The pothole was located directly in a lane through which a great deal of traffic from an adjacent street enters the parking lot. The circumference of the hole was approximately three and one-half feet and the depth about three to four inches.

The supermarket manager acknowledged awareness of the pothole and failure to repair it or provide barricades or warnings. He testified that there had been no prior complaints or incidents concerning the hole, although it had been there for a long time.

Gafford testified that he experienced excruciating hip pain immediately after his fall. He was helped into his car by a bystander and managed to drive himself home. An ambulance was summoned, and Gafford was transported to an Atlanta hospital that afternoon. He was examined by Dr. McMahan, an orthopedic surgeon. The following morning, Dr. McMahan performed surgery to repair Gafford’s hip, which had been broken by the fall. Gafford remained bedridden in the hospital for about a week. After leaving the hospital, he went to an elderly care facility, Newton House, for eight days because he was still virtually bedridden and his wife was unable to care for him. Gafford received doctor-prescribed physical therapy at Newton House and later at his home.

The jury returned a general verdict awarding Gafford $27,000 for medical and related expenses and $163,000 for pain and suffering. His wife was awarded $10,000 for loss of consortium.

1. Zack’s first contends that it was entitled to a directed verdict because the pothole was an open and obvious condition which Gaf-ford was not distracted from seeing, and he had failed to exercise ordinary care for his own safety.

Gafford testified that he did not see the hole at any time before the incident in question. We cannot say, after reviewing the record, that the hole would have been open and obvious to him when he visited the store on prior occasions or when he entered the store on the day in question. Nor can we say “plainly, palpably, and indisputably” that the hole should have been obvious to him as he traversed the parking lot after exiting the store. We do not overlook the fact that

it is common knowledge that small cracks, holes and uneven spots often develop in pavement; and it has been held that where there is nothing to obstruct or interfere with one’s ability to see such a “static” defect, the owner or occupier of the premises is justified in assuming that a visitor will see it and realize the risk involved.

But “[a] possible confrontation with vehicular traffic on the property may be a significant distraction for a pedestrian-invitee on the premises.” Moreover, a shopper pushing a cart of groceries does not have as unobstructed a view of the ground as other pedestrians. Whether Gafford’s failure to observe the defect amounted to a lack of reasonable care was a jury question.

2. Zack’s next contends that the court erred in admitting bills for rehabilitation and physical therapy services in evidence without a proper foundation.

Plaintiffs introduced billing statements totaling $5,447.61 in charges for a semi-private room, pharmaceuticals, medical supplies, and physical therapy from Newton House and $920 in nursing fees for ten physical therapy sessions at Gafford’s home during the three months following Gafford’s fall. The trial court admitted these bills over the defense’s objection that Gafford was not competent to identify them or to render a medical opinion that the services were related to his injury.

Taylor v. Associated Cab Co. held that bills from two doctors were inadmissible where the doctors did not testify and the only medical testimony presented by the plaintiff tended to negate a finding that the medical expenses were related to the injury involved in the litigation. Taylor concluded that an adequate foundation was not laid for the hearsay documents.

In response to Taylor, the legislature enacted OCGA § 24-7-9. In personal injury actions, this statute declares the plaintiff and other specified lay witnesses competent to identify bills for expenses incurred in treatment of the subject injury, and to prove that the charges were reasonable and necessary, where the bills were received from various specified health care providers (e.g., a hospital, pharmacy, licensed practicing physician).

But Piggly-Wiggly Southern v. Tucker held that OCGA § 24-7-9 “was not intended as the sole means of proving medical damages in personal injury suits.” Tucker authorized admission of evidence of charges for nurses’ services where a foundation was laid through a lay witness who authenticated the checks given in payment of bills for the services, and where there was other evidence showing the serious nature of the plaintiff’s injuries, the character of the services rendered, and the time spent in the hospital.

Under Tucker, Gafford was competent to identify the bills at issue. And his testimony authorized the jury to find that his convalescence in the elderly care facility and the physical therapy sessions ordered by his doctor were necessitated by injuries caused by his fall. The court did not err in admitting the bills in evidence.

Decided November 22, 1999.

Swift, Currie, McGhee & Hiers, Bradley S. Wolff, Patricia M. Peters, for appellant.

Smith, Welch, Studdard & Brittain, Benjamin W. Studdard III, E. Gilmore Maxwell, for appellees.

3. Finally, Zack’s charges the court with error in not giving its requested jury charges on various rules applicable in trip and fall actions.

Because the jury instructions given by the court embodied substantially the same principles as those in the defense’s requested instructions, we find no error.

Judgment affirmed.

Blackburn, P. J., and Ellington, J., concur.

       Compare Piggly Wiggly Southern v. Bennett, 217 Ga. App. 496 (458 SE2d 138) (1995); Wiley v. Family Dollar Store &c., 208 Ga. App. 461 (430 SE2d 839) (1993).

        Robinson v. Kroger Co., 268 Ga. 735, 743 (1) (493 SE2d 403) (1997).

        Anderson v. Turton Dev., 225 Ga. App. 270, 272 (1) (483 SE2d 597) (1997).

       (Citations and punctuation omitted.) Marlowe v. Cabe, 207 Ga. App. 764, 766 (429 SE2d 151) (1993) (physical precedent only); see, e.g., Wiley v. Family Dollar Store, supra;
        Gray v. Alterman Real Estate Corp., 196 Ga. App. 239 (396 SE2d 42) (1990).

       Cf. Anderson v. Turton Dev., supra.

       110 Ga. App. 616, 619 (2) (139 SE2d 519) (1964).

       See Ga. Farm &c. Ins. Co. v. Middleton, 171 Ga. App. 454, 455 (2) (319 SE2d 909) (1984); Lester v. S. J. Alexander, Inc., 127 Ga. App. 470, 471-472 (1) (193 SE2d 860) (1972).

       139 Ga. App. 873, 876 (4) (229 SE2d 804) (1976).

       Compare Glover v. Southern Bell Tel. &c. Co., 132 Ga. App. 74, 75 (1) (207 SE2d 584) (1974).

        Keaton v. State, 169 Ga. App. 527, 529 (3) (313 SE2d 721) (1984), rev’d on other grounds, 253 Ga. 70 (316 SE2d 452) (1984).


text:
    A99A1247.
    YOO v. PARKER et al.
    (526 SE2d 85)
   Phipps, Judge.

Bok Nam Yoo, as administrator of the estate of her deceased husband, brought this action against John Parker and Anglo-American Group Limited for domestication of a California judgment obtained by Yoo against Parker and Anglo-American. Two major questions are presented for decision. The first is whether the California judgment should be denied recognition on the ground that the out-of-state court lacked personal jurisdiction over these defendants. If so, an issue arises as to whether the claim that was the subject of the California proceeding may now be asserted in this suit. We answer both questions in the affirmative, which leads to an affirmance in part and reversal in part of the judgment appealed.

Yoo’s husband was a domiciliary of California at the time of his death. Parker is a Georgia resident who owns Anglo-American Group Limited, a Colorado company. In her capacity as administrator, Yoo filed a petition in the Los Angeles County Superior Court for conveyance of personal property allegedly belonging to her husband’s estate but in the possession of the defendants. Although the petition is not in the record, it is undisputed that the personal property referred to in it consisted of $210,000 Yoo’s husband was allegedly induced to have parted with as a result of fraudulent representations by the defendants.

The defendants were served by mail with notice of a June 27, 1997 hearing on the petition. By its express terms, the notice authorized but did not require the defendants to answer the petition and appear at the hearing. Parker responded to the petition by letter on Anglo-American stationery. In the letter, Parker denied that he had used documents with which he had been served to induce Yoo’s husband to part with the money which she sought to recover. Parker stated that he could be of no help in the matter. The hearing was not held until August 7, 1997. No one appeared for the defendants. Following the hearing, the California court entered the judgment sought to be domesticated. It orders the defendants to repay the administrator the $210,000 together with earnings.

The defendants moved for summary judgment in this action, arguing insufficient minimum contacts with the State of California to subject either defendant to suit there. Yoo then amended her complaint, asking that the claim which was the subject of the California proceeding be tried in this suit if the California judgment were denied recognition and enforcement. In the amended pleading, Yoo alleged that the defendants’ fraudulent solicitations induced her husband to transfer $210,000 into an account which Parker then appropriated to his own use. Supporting documents include a letter by Parker informing prospective investors of an opportunity to invest in a program offering astronomically high short-term returns with little apparent risk and follow-up letters confirming that Yoo’s husband had invested in the program by transferring funds into an account maintained by the defendants. The trial court granted the defendants’ motion for summary judgment in a non-explanatory order.

1. Yoo contends that the trial court erred in refusing to domesticate the foreign judgment she obtained in California.

She maintains that the defendants cannot now collaterally attack the California judgment based on lack of personal jurisdiction because they entered an appearance in the California proceeding through the letter sent by Parker.

A collateral attack upon a petition to domesticate a foreign judgment, made on grounds that it was based on a lack of personal jurisdiction, is precluded in this state only if the defendant has appeared in the foreign court and has thus had an opportunity to litigate the issue. [Cit.]

Where the foreign judgment is subject to collateral attack, the person seeking to domesticate it bears the burden of negating the defense of lack of personal jurisdiction if the judgment was obtained by default.

Literally, a party appears in court when either the party himself or his attorney is physically present. In legal contemplation, a person enters an appearance when he becomes involved in the proceeding as a party to the suit and thereby submits himself to the court’s jurisdiction. An answer to a complaint is an appearance. But an “answer” is a pleading filed in response to a summons. Under both the Georgia Civil Practice Act and the California Code of Civil Procedure, a summons directs the defendant to appear and file defensive pleadings with the clerk of the court and notifies the defendant that, in case of failure to do so, judgment by default will be rendered against him.

The notice of the California probate court hearing did not contain either of these directives or inform the defendants that a default judgment could be entered against them. Consequently, Parker’s letter response to the notice did not constitute an “answer” to the petition through which the defendants submitted themselves to the jurisdiction of the California court. And even if it had, the hearing was held on a different date from that specified in the notice. Thus the judgment was rendered by default.

Consequently, defendants may attack the California judgment for lack of personal jurisdiction, and Yoo bears the burden of negating this defense. The record shows no contact between either defendant and the State of California. All that has been shown is that decedent was a domiciliary of that state when he died. Therefore, Yoo has not carried her burden, and the trial court did not err in granting defendants’ motion for summary judgment on the original complaint.

2. Yoo contends that the court erred in granting summary judgment to defendants on her amended complaint.

The defendants maintain that the amended complaint was untimely, that it could not raise issues litigated in the California action, and that it failed to set forth a triable claim for fraud.

Decided November 22, 1999.

“Parties may set forth inconsistent claims and theories and may freely amend their complaint prior to entry of a pretrial order. [Cits.]” Yoo’s amendment to her complaint in response to the defendants’ motion for summary judgment was not therefore untimely. Relitigation of the issues adjudicated in the California proceeding would be barred by the doctrine of res judicata if the California court had “competent jurisdiction” to decide those issues. Because the record in the present case does not show that the California court had such jurisdiction, the issues may be litigated in this suit.

Since fraud is inherently subtle, slight circumstances of it may be sufficient to prove its existence. Here, Parker attested that he is, in fact, the owner of Anglo-American. Parker admitted in his affidavit that Yoo’s husband had contacted him by telephone “regarding investment advice.” According to Parker’s own testimony, “[i]n 1996, Mr. Yoo wired funds into my Nationsbank account here in Georgia. I then transferred funds on behalf of Mr. Yoo into an Anstaldt Mr. Yoo had set up in Switzerland.” Since the record contains Parker’s admission that he had custody and control over Mr. Yoo’s funds before the money supposedly disappeared into the Swiss banking system, and in light of Parker’s letter to Mr. Yoo of September 28, 1996, in which Parker confirms the existence of Yoo’s “letter of intent and [our] phone conversation” and Parker’s reference to “[o]ur high yield program . . .for knowledgeable sophisticated investors,” the record contains evidence that may raise an inference of fraud and which necessitates jury resolution of this issue.

Consequently, the defendants were not entitled to summary judgment on Yoo’s amended complaint.

Judgment affirmed in part and reversed in part.

Pope, P. J., and Smith, J., concur.

Don M. Jones, James B. Drew, Jr., for appellant.

Michael S. Welsh, for appellees.

        Van Buskirk v. Great American Bank &c., 175 Ga. App. 101, 102 (332 SE2d 394) (1985); see also OCGA § 9-12-115 (a) (2) (setting forth essentially the same rule as that applied in Van Buskirk, but inapplicable to judgments rendered in sister states as provided in OCGA § 9-12-111).

       See E. Howard St. Clair & Assoc. v. Northwest Carpets, 237 Ga. App. 537, 538 (515 SE2d 660) (1999).

       Black’s Law Dictionary (4th ed. 1951), p. 125.

       Id.; see Van Buskirk, supra; Borg-Warner Health Products v. May, 154 Ga. App. 482, 483 (1) (268 SE2d 770) (1980) and cits.

       See n. 4, supra.

       OCGA § 9-11-12 (a).

       OCGA § 9-11-4 (b).

       West’s Ann. Cal. Code of Civil Proc. § 412.20 (a) (3), (4).

       See generally Ramsey Winch Co. v. Trust Co. Bank, 153 Ga. App. 500, 501 (3) (265 SE2d 848) (1980).

        Southern v. Sphere-Drake Ins. Co., 226 Ga. App. 450, 451 (486 SE2d 674) (1997).

       Compare Summer-Minter & Assoc. v. Giordano, 231 Ga. 601 (203 SE2d 173) (1974) (party cannot amend complaint after appellate reversal of trial court’s denial of adverse party’s motion for summary judgment).

       See OCGA § 9-12-40.

        McNeil v. Cowart, 186 Ga. App. 411, 412 (1) (367 SE2d 291) (1988).

       See Joseph v. Bray, 182 Ga. App. 131, 132 (2) (354 SE2d 878) (1987).


author: Blackburn, Presiding Judge. Barnes, Judge,

text:
    A99A1394, A99A1395.
    BUFORD-CLAIRMONT COMPANY, LTD. v. CATO CORPORATION; and vice versa.
    (526 SE2d 104)
   Blackburn, Presiding Judge.

In this action involving a commercial lease dispute, Buford-Clairmont Company, Ltd., the lessor, appeals the trial court’s partial grant of summary judgment to Cato Corporation, the lessee, contending that the trial court erred by: (1) determining as a matter of law that Cato had a valid right to close its store in the leased premises and (2) finding that Cato did not fraudulently induce Buford-Clairmont to enter into an amendment of the original lease agreement between the parties. Cato cross-appeals, contending that the trial court erred by: (1) finding, with regard to the store closing issue, that a question of fact remained with regard to Cato’s underlying intentions in deciding to close the store and (2) holding that Cato was estopped from terminating the lease.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant [or denial] of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

On June 10, 1994, Buford-Clairmont and Cato entered into a commercial lease agreement pursuant to which Cato leased space in Buford-Clairmont’s shopping center to house a store which sold women’s apparel. Article 28 of the lease provides:

LESSOR covenants and agrees that during the term of this Lease and any extensions or renewals thereof, should LESSOR directly or indirectly enter into any leases in the Shopping Center, or any enlargement thereof, including any out-parcels, with any national or regional women’s apparel chain stores classified as popular priced and carrying competitive merchandise, with any store specializing in large-sized women’s apparel, or with more than one store specializing in specific price point sales of ladies’ and girls’ apparel ... in such event, the monthly fixed rent shall be reduced by one-half... that set forth herein for the initial Lease period and any extension or renewal thereof, or LESSEE, at its option, may elect to cancel this Lease upon sixty (60) days notice in writing.

On October 5, 1994, Buford-Clairmont entered into a lease with Simply Fashion Stores, Ltd., a competitor of Cato, and, approximately two months later, Cato notified Buford-Clairmont that it believed Article 28 had been violated and that it would begin paying half of the rental amounts stipulated in the contract. On November 30, 1995, Buford-Clairmont sued Cato for failing to pay the full amount of rent and sought a declaratory judgment that it had not violated Article 28.

After negotiations, the parties agreed to settle this lawsuit and, through correspondence, devised an amendment to the lease between the parties (the First Lease Amendment). This amendment altered the rental payments for the period of September 1, 1996 through January 31, 1998, changing them from a fixed amount to an amount based on a percentage of sales. Article 1 of the First Lease Amendment provides:

Effective as of September 1,1996 through January 31,1998, LESSEE’S obligation to pay fixed rent under the Lease, shall abate and in lieu thereof LESSEE shall pay LESSOR, on a monthly basis, an amount equal to four and one-half percent ... of gross retail sales, if any, as defined in the Lease, made from the Premises, payable within thirty (30) days after the end of each month.

(Emphasis supplied.)

Cato prepared the First Lease Amendment, the material terms of which Buford-Clairmont suggested, and forwarded it to Buford-Clairmont, which executed the document. However, Cato subsequently refused to sign the amendment, and Buford-Clairmont brought an action to enforce the settlement agreement before the Superior Court of Fulton County. On January 21, 1997, that court determined that the settlement, as reflected by the First Lease Amendment and correspondence between the parties, was binding, and attorney fees were imposed on Cato. On January 30, 1997, Cato mailed notice to Buford-Clairmont that it had decided to close its store due to operational decisions and that it was exercising its option under Article 28 to terminate the lease.

Buford-Clairmont subsequently brought this action against Cato, contending that: (1) Cato breached the lease by closing its store; (2) Cato fraudulently induced Buford-Clairmont into the First Lease Amendment; and (3) Cato damaged the property during its tenancy. Buford-Clairmont also sought a declaratory judgment that Article 28 of the lease had not been violated. Cato counterclaimed, contending that Buford-Clairmont had breached the lease by renting to a competitive retailer and requested a declaratory judgment to that effect.

Case No. A99A1394

1. Buford-Clairmont contends that Cato had no right to cease store operations, arguing that the imposition of rent based on percentage sales carried with it an implied agreement to stay open. This contention is untenable, as the lease agreement explicitly provides. Cato with the right to close its store.

Article 12 of the lease provides:

The Premises may be occupied only for the purpose of the display and sale of ladies’ and girls’ apparel, accessories and allied lines commonly sold from time to time in THE CATO CORPORATION affiliated stores. Nothing in this Lease shall be deemed to constitute an obligation on the part of Lessee to operate its business in the Premises at any time.

(Emphasis supplied.) The execution of the First Lease Amendment did not vitiate this provision, as Buford-Clairmont argues, because Article 6 thereof states: “Except as herein amended, all other terms, conditions and covenants of the Lease shall remain unchanged and continue in full force and effect.” Cato retained the right to close its store following the execution of the First Lease Amendment, and" Buford-Clairmont’s reliance on alleged implied provisions cannot withstand the mandate of contradictory express provisions. Moreover, the First Lease Amendment links rental payments to a percentage of sales, if any, and thereby explicitly undermines Buford-Clairmont’s argument even further. Despite Buford-Clairmont’s pleas, this Court has no choice but to follow the explicit language of the lease agreement, and Buford-Clairmont must suffer the consequences of its voluntary acceptance of what ultimately turned out to be a bad business deal.

2. Buford-Clairmont contends that Cato fraudulently induced it into entering the First Lease Amendment, arguing that Cato knew it was going to close the store at the time the amendment was negotiated and sought a percentage calculation to avoid being responsible for any rent. Again, this argument is untenable.

“The tort of fraud in Georgia has five elements: (1) false representation by defendant; (2) scienter; (3) intention to induce plaintiff to act or refrain from acting; (4) justifiable reliance by plaintiff; and (5) damage to plaintiff.” Westminster Holdings, Ltd. v. Weatherspoon, 237 Ga. App. 819, 822 (2) (517 SE2d 80) (1999).

Pretermitting the factual issue of whether Cato decided to close its store prior to the execution of the lease amendment, there is no evidence of record that Buford-Clairmont was induced to enter into the amendment or that it relied on any representations by Cato in doing so. To the contrary, the record shows that the percentage-based rent was Buford-Clairmont’& idea. Moreover, after the First Lease Amendment was drafted, Cato refused to sign or honor it, and Buford-Clairmont affirmatively brought suit to enforce the amendment. As Buford-Clairmont initiated the incorporation of percentage rent and affirmatively enforced this scheme, it cannot now claim fraud to circumvent the ramifications of its own actions. Again, Buford-Clairmont must be held to the terms of the deal it voluntarily negotiated, whether or not such deal ultimately proved beneficial.

Case No. A99A1395

3. In its cross-appeal, Cato contends that no question of fact remained as to whether it retained the right to cease retail operations in the leased premises. We agree.

As discussed above, Article 12 of the lease agreement explicitly gave Cato a general right to cease store operations, without regard to the reason for which it chose to do so. Therefore, Cato’s decision to close must be considered independent of the provisions of Article 28, which specifically deals with Cato’s options in the event Buford-Clairmont leased space to a competitor — namely termination of the lease or rent reduction. Accordingly, Cato’s motivation would not affect its ability to close its store, only its ability to terminate the lease agreement. Even if we were to assume that previous court decisions prevented Cato from terminating due to a violation of Article 28, the right to close remained. Therefore, the trial court erred by failing to grant summary judgment to Cato with regard to its right to close its store.

4. Cato contends that the trial court erred in finding that res judicata bars it from suing Buford-Clairmont for leasing space to a competitor. We cannot agree.

The doctrine of res judicata prevents the re-litigation of all claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action. Res judicata prevents a plaintiff from instituting a second complaint against a defendant on a claim that has already been brought, after having previously been adjudged not to be entitled to the recovery sought on that claim. Three prerequisites must be satisfied before res judicata applies [:] (1) identity of the cause of action[;] (2) identity of the parties or their privies[;] and (3) previous adjudication on the merits by a court of competent jurisdiction.

(Footnotes omitted.) Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 865-866 (1) (463 SE2d 5) (1995).

[Furthermore, r]es judicata bars subsequent actions as to all matters put in issue or which under the rules of law might have been put in issue in the original action. OCGA § 9-12-40. The subject matter was identical in both actions. . . . [Cato] had a full opportunity in the first action to litigate each and every claim existing between the parties which touched on [the issue of Buford-Clairmont’s violation of the lease agreement]. It was [Cato’s] duty to do so.

(Citations and punctuation omitted.) McIver v. Jones, 209 Ga. App. 670, 673 (434 SE2d 504) (1993).

There is no question here that the parties in all actions are the same and the subject matter is identical. Furthermore, the original judgment, enforcing the settlement agreement and imposing the rental terms as agreed upon by the parties, was issued by a court of competent jurisdiction. Although Cato argues that, because a settlement agreement was involved, the trial court cannot be considered to have rendered a judgment on the merits, this argument is untenable. Unlike Blakely v. Couch, 129 Ga. App. 625 (200 SE2d 493) (1973), on which Cato relies, this case does not involve a consent judgment memorializing a settlement agreement. Rather, it involves an adversarial proceeding based on a motion to enforce a settlement agreement at which Cato could have and should have litigated all of its rights under the lease agreement, including the issue of Buford-Clairmont’s breach thereof. As such, res judicata is applicable to this matter.

Moreover, we note that Article 28 of the lease provided Cato with alternative options — termination or reduced rent. Cato initially chose the latter and, through its settlement negotiations with Buford-Clairmont, agreed upon favorable rental rates in place of the original lease provisions. As such, it appears that Cato intended to exercise its option to receive favorable rental rates in response to the lease with Simply Fashions, not terminate the lease agreement. If Cato intended to preserve its right to terminate the lease in response to the Simply Fashions breach, it should have raised this issue in prior proceedings centering around the same issues now raised, for res judicata prevents Cato from raising it now. Lay Bros., Inc. v. Tahamtan, 236 Ga. App. 435 (511 SE2d 262) (1999).

We need not address the special concurrence, as it does not conflict with this opinion and adds nothing to our analysis.

Judgment affirmed in Case No. A99A1394. Judgment affirmed in part and reversed in part in Case No. A99A1395.

Ellington, J., concurs. Barnes, J., concurs specially.

Barnes, Judge,

concurring specially.

I fully concur in the result and analysis of the majority in Divisions 1 and 2 of Case No. A99A1394, as well as Division 3 of Case No. A99A1395. Although I concur in the judgment in Division 4 of Case No. A99A1395, I write separately to elaborate on the facts and case law supporting the majority’s conclusion that the “Order and Final Judgment” which enforced the parties’ settlement agreement was an adjudication on the merits.

In this Order and Final Judgment, the trial court concluded that “[t]he parties entered into an enforceable settlement agreement as evidenced by correspondence dated August 21, 1996 and the First Lease Agreement” and that these documents “constitute the entire agreement between the parties;” Based on this finding, the trial court ordered Cato and Buford-Clairmont “to fully and completely carry out each of their obligations under these Agreements.”

The August 21, 1996 letter sent by Buford-Clairmont’s counsel states: “[T]his will confirm that the parties have reached an agreement to settle all matters by agreeing to execute a Lease Modification Agreement. . . .” The August 21, 1996 letter sent by Cato’s counsel states that “[a]fter the parties execute the lease modification agreement, counsel for the parties will execute and file mutual dismissals with prejudice with the Court.” Thus, contrary to the contention of Cato, the Order and Final Judgment adjudicated all matters which were or could have been asserted by Cato in the first lawsuit. See Basden v. Basden, 183 Ga. App. 188, 189 (1) (358 SE2d 317) (1987) (res judicata applied to settlement agreement incorporated into final divorce decree which settled all questions of division of property); see also Fowler v. Vineyard, 261 Ga. 454, 456 (2) (405 SE2d 678) (1991) (holding voluntary dismissal with prejudice is an adjudication on the merits for purposes of res judicata).

Decided November 22, 1999.

Silfen, Segal, Fryer & Shuster, Keith E. Fryer, for appellant.

Smith, Gambrell & Russell, Marcia M. Ernst, for appellee.

Our decision in Blakely v. Couch, 129 Ga. App. 625 (200 SE2d 493) (1973) does not require a different conclusion in this case. In that decision, we held that a consent judgment memorializing a settlement agreement could not have res judicata effect on a subsequent litigant who was not a party to the settlement agreement. Id. at 628-629. We also recognized that “[o]ur ruling here of course in no way limits the binding effect between the participating litigants of consent verdicts and judgment based thereon.” Id. at 629 (1).

       In addition, Cato agreed to pay Buford-Clairmont the lump sum of $13,928.25, which was equal to seven months half-rent.

       This issue is not before this Court on appeal.


text:
    A99A1623.
    BRASSFIELD & GORRIE et al. v. OGLETREE.
    (526 SE2d 103)
   McMurray, Presiding Judge.

Brassfield & Gorrie (“the employer”) appeals a superior court order awarding Robert Ogletree attorney fees under OCGA § 9-15-14 (b) in this workers’ compensation case. We are compelled to reverse this judgment because the superior court did not enter the attorney fees award within OCGA § 34-9-105 (b)’s jurisdictional time limit. Taylor Timber Co. v. Baker, 226 Ga. App. 211 (485 SE2d 819).

Ogletree is a brick mason. He suffered a compensable back injury while working for the employer. Although Ogletree’s treating physician recommended surgery, the employer refused to pay because its own physician opined that surgery was unnecessary. An administrative law judge with the State Board of Workers’ Compensation (“the Board”) did not agree and ordered the employer to pay for Ogletree’s surgery. After the Board’s appellate division affirmed this award, the employer appealed to the superior court after which a hearing for oral argument was scheduled for September 30, 1998. The superior court later entered an order rescheduling this hearing for October 2, 1998. On November 3, 1998, the superior court entered an order affirming the Board’s appellate division’s award but postponed ruling on Ogletree’s motion for frivolous appeal damages under OCGA § 9-15-14 (b). On January 26, 1999, the superior court entered an order awarding Ogletree $2,100 in attorney fees. This discretionary appeal followed. Held:

OCGA § 34-9-105 (b) requires that a superior court order disposing of any issue in a workers’ compensation case be entered within 20 days of the hearing on the appeal — otherwise the Board’s award will be affirmed by operation of law. This narrow time window is to promote speedy resolution of workers’ compensation cases and has been held to be jurisdictional. See Felton Pearson Co. v. Nelson, 260 Ga. 513, 514 (397 SE2d 431). For instance, this Court held in Buschel v. Kysor/Warren, 213 Ga. App. 91 (444 SE2d 105), that the superior court lost power to enter an enforceable order in a workers’ compensation appeal after expiration of OCGA § 34-9-105 (b)’s 20-day time limit. Id. at 93 (1). A panel of this Court followed this decision in Taylor Timber Co. v. Baker, 226 Ga. App. 211, supra, holding that the superior court lost jurisdictional authority to award attorney fees under OCGA § .9-15-14 (b) in a workers’ compensation appeal after expiration of OCGA § 34-9-105 (b)’s affirmance by the operation of law time limit. Id. at 212 (1). The same circumstances appear in the case sub judice.

Decided November 22, 1999.

Shivers & Associates, Benjamin J. Johnson, for appellants.

Steven E. Marcus, for appellee.

Although it is not clear whether a hearing on the employer’s appeal was conducted according to the superior court’s ordered hearing date on October 2, 1998, it appears undisputed that the superior court’s order awarding Ogletree attorney fees under OCGA § 9-15-14 (b) was entered more than 20 days after a hearing was conducted on the employer’s appeal. This order was therefore a nullity and must be reversed. Buschel v. Kysor/Warren, 213 Ga. App. at 93 (1), supra; Taylor Timber Co. v. Baker, 226 Ga. App. at 214 (1), supra.

Judgment reversed.

Johnson, C. J., and Phipps, J., concur.

       Although the employer states in its brief that a hearing was conducted after this date, this statement is not supported by citation to the record.


author: Ellington, Judge.

text:
    A99A1657.
    GILBERT v. THE STATE.
    (526 SE2d 88)
   Ellington, Judge.

After a bench trial, Antonio Renard Gilbert was convicted of two counts of armed robbery, OCGA § 16-8-41, and two counts of aggravated assault, OCGA § 16-5-21. Gilbert was jointly indicted with Ulysse Lassiter, who was tried and convicted before a jury and whose convictions were affirmed by this Court in Lassiter v. State, 237 Ga. App. 495 (515 SE2d 636) (1999). Gilbert argues that the evidence adduced was insufficient to support his conviction, that the trial court erred in admitting hearsay at trial, and that the trial court erred in denying his motion to suppress evidence. For the following reasons, we affirm.

1. Viewed in the light most favorable to support the verdicts, the evidence shows that at about 1:30 a.m. on June 5, 1997, employees closing a Taco Bell on Lawrenceville Highway in Lilburn were robbed at gunpoint. As employee Joseph Harris was preparing to close the store, he saw two men in a silver-gray car drive into the Taco Bell parking lot. He waved them away. Shortly thereafter, he saw the same car parked in the adjoining Dairy Queen parking lot, but with only the driver seated in it. As the night manager, Tonya Hall, was doing paperwork, she saw a silver-gray car pull up to the restaurant. She also waved the car away. A short time later, when Hall was talking to her fiancé on the telephone, she heard a crash as the restaurant door facing Dairy Queen was shattered by a large rock. A masked gunman entered through the broken door and grabbed Harris and forced him toward Hall’s office with the gun to his head. Hall panicked, hung up the phone, and tried to close the door to her office. When the gunman threatened to kill Harris, Hall complied with his demands and opened the door. The gunman told Hall that she had “five seconds to open the safe. My ride is coming.” The safe, which was on a time lock, could not be opened. So, the gunman took Hall’s purse and the cash from the register drawer and fled.

When Hall hung up the telephone in a panic, her fiancé, Law-renceville Police Department Investigator Edison, suspected that an armed robbery was in progress. He immediately radioed the Lilburn police dispatcher and then got in his car to drive to the scene. Brown, a uniformed officer with the City of Lilburn Police Department, responded to Taco Bell within one minute of receiving Edison’s dispatch. As he drove into the Taco Bell parking lot, he saw a Gwinnett County patrol car pulling into the neighboring Dairy Queen parking lot. He also saw a silver-gray Monte Carlo leaving that parking lot. Officer Brown asked the Gwinnett officers to stop the car. Officer Brown then parked his patrol car in the Taco Bell lot, got his shotgun, and went toward the broken door. As he did, the gunman emerged. When the gunman saw Officer Brown, he turned and fled into the woods behind the restaurant. Brown radioed for assistance and then gave chase.

Both Hall and Officer Brown described the gunman. He was wearing two blue and white bandannas tied around his head so that only his eyes and a small strip of flesh above the bridge of his nose were visible. He was carrying a silver handgun and wearing gloves. Within a short time, the police were able to catch the gunman, Ulysse Lassiter. They recovered the stolen money and Hall’s belongings as well as Lassiter’s gloves, bandannas, and handgun — a silver pellet pistol.

In the meantime, Gwinnett County Officer Johnson, at Officer Brown’s direction, followed the silver-gray Monte Carlo as it emerged from the Dairy Queen parking lot. He and his partner stopped the car and asked the driver, Antonio Gilbert, for his license. The officers then heard Brown’s radio request for assistance. With Gilbert’s license in hand, the officers started back to Taco Bell; however, when they saw that many officers were responding ahead of them, they turned around and went back to Gilbert. The police left Gilbert unattended for about three or four minutes.

Officer Johnson told Gilbert he had been stopped because he was observed leaving the scene of an armed robbery. Gilbert said he was just looking for a place to eat and gave the officers consent to search his car. The officers found during the search of the car a blue and white bandanna, a neoprene ski mask, two silk stockings, a glove, a second set of keys, and two pagers. While the search was in progress, the police discovered that Gilbert’s driver’s license had been suspended. He was placed under arrest for that offense. The police also searched the area around Gilbert’s car. Within tossing distance of the car, they found the mate to the glove, another blue and white bandanna, and a black pellet pistol.

Gilbert gave a statement in which he denied knowing anything about the robbery. He said he was looking for a place to eat. He said he went to Taco Bell, but it was closed, so he went to Waffle House, which was open. Inexplicably, however, he went back to Taco Bell. He denied owning the items found both inside his car and on the ground. Gilbert said he was alone in the car and that he did not know Lassiter. Yet, one of the pagers found in Gilbert’s car was registered to Lassiter. The bandannas, the gloves, and the pellet pistol found in or near Gilbert’s car were very similar to those used by Lassiter in the robbery.

The evidence was sufficient to authorize a rational trier of fact to find Gilbert guilty of armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). A conviction based on circumstantial evidence is authorized when every reasonable inference and hypothesis except that of guilt are excluded by the evidence. Brown v. State, 260 Ga. 153, 155 (1) (391 SE2d 108) (1990). In this case, the judge was authorized to infer from the evidence that Gilbert was Lassiter’s partner in crime and that on this occasion Gilbert acted as the getaway driver while Lassiter performed the armed robbery. See, e.g., Smith v. State, 234 Ga. App. 586, 592-594 (7) (506 SE2d 406) (1998); Robinson v. State, 173 Ga. App. 502, 503 (326 SE2d 597) (1985).

2. Gilbert also argues that the trial court erred in denying his motion to suppress the evidence seized from his car as a result of the traffic stop. In our review of the trial court’s order denying Gilbert’s motion to suppress, we construe the evidence most favorably to uphold the court’s ruling. Mao v. State, 222 Ga. App. 482, 483 (474 SE2d 679) (1996). It is the trial court’s duty to resolve conflicts in the evidence, and its findings of credibility and fact will not be disturbed on appeal unless they are clearly erroneous. Id.

Decided November 22, 1999.

Sharon L. Hopkins, for appellant.

Viewed in this light, the evidence shows that Officer Brown directed Officer Johnson to stop Gilbert’s car because it was the sole vehicle leaving the immediate scene of an armed robbery in progress. Moreover, Gilbert did not have his headlights on. Given these suspicious circumstances, the officers had the reasonable articulable suspicion necessary to justify the stop. Morris v. State, 239 Ga. App. 100, 101-102 (1) (b) (520 SE2d 485) (1999). The trial judge did not err in denying the motion.

3. Gilbert argues the trial court erred in admitting statements made by Taco Bell employee Joseph Harris into evidence through Officer Brown. Brown testified that Harris told him he saw two men in a silver-gray car circling Taco Bell shortly before the robbery. And, just before Lassiter burst through the restaurant door, Harris saw the silver-gray car pull into the Dairy Queen parking lot. Harris made these statements to Officer Brown about 30 minutes after the robbery. He offered the information as he paced in the parking lot, upset and ranting angrily. The trial court determined that Harris’ statements were spontaneous and free of artifice and admitted them as part of the res gestae.

OCGA § 24-3-3 provides that “[declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.” As we have held, “[a] trial court’s determination that evidence is admissible as part of the res gestae will not be disturbed unless it is clearly erroneous.” (Citations and punctuation omitted.) Brinson v. State, 208 Ga. App. 556, 557 (1) (430 SE2d 875) (1993). In this case, the evidence was “relevant and the statement was made without premeditation. The trial court’s decision to admit the evidence under this theory was not clearly erroneous and will not be disturbed on appeal.” (Citation omitted.) Stovall v. State, 216 Ga. App. 138, 139 (1) (453 SE2d 110) (1995) (officer permitted to read statement he saw written down by victim of robbery within 45 minutes of crime).

Judgment affirmed.

Andrews, P. J, and Ruffin, J., concur.

Daniel J. Porter, District Attorney, R. Keith Miles, Assistant District Attorney, for appellee.