text:
    A96A1938.
    BAZEMORE v. THE STATE.
    (484 SE2d 673)
   Birdsong, Presiding Judge.

Douglas A. Bazemore was charged with driving with an unlawful alcohol concentration, speeding, and failure to maintain lane. The trial court directed a verdict of acquittal for failure to maintain lane. Bazemore was acquitted of driving under the influence to the extent that it was less safe, but was found guilty of driving with an unlawful alcohol concentration (.13 grams percent) and speeding. Bazemore enumerates five errors relating to the denial of his motion to exclude from evidence the State’s blood test results. Held:

1. Appellant contends the trial court erred in denying his motion to suppress the chemical blood test results because the State failed to prove the qualifications of the person who drew his blood pursuant to OCGA § 40-6-392 (a) (2) and (e).

When the State seeks to prove a violation of OCGA § 40-6-391 with evidence of a chemical test, OCGA § 40-6-392 (a) (2) requires the State to prove at trial the “qualifications” of the person who drew appellant’s blood pursuant to OCGA § 40-6-392 (a) (2). In Harden v. State, 210 Ga. App. 673, 674 (436 SE2d 756), we held this burden may be satisfied in “at least” (id.) two ways. First, the State may call as a witness the person who drew the blood and have him testify as to his qualifications. Secondly, as provided by OCGA § 40-6-392 (e), the State “may” present a “certification” by the office of the Secretary of State or the Department of Human Resources that the person was “licensed or certified” in one of the professions listed in OCGA § 40-6-392 (a) (2). Harden at 674.

OCGA § 40-6-392 (e) provides that “[a] certification by the office of the Secretary of State or by the Department of Human Resources that a person was a licensed or certified [technician] at the time the blood was drawn shall be admissible into evidence for the purpose of establishing that such person was qualified to draw blood as required by this Code section.” (Emphasis supplied.) This statute merely provides such certification is admissible', it does not require such evidence.

An arresting officer testified that appellant’s blood was drawn at DeKalb Medical Center by Clarence Heard. Heard did not testify. The State submitted a “self-authenticating” document to prove his qualifications: a “Records Search” on stationery of “Georgia Department of Human Services, Office of Regulatory Services Health Care Section” at a certain address. It is signed February 16, 1996 by “Reviewing Official” Genella Forrester and states: “Records in the Diagnostic Services Unit, Health Care Section, Office of Regulatory Services verify that Clarence Heard is classified as Medical Laboratory Technician and that the above individual was first classified as such [in] December, 1986 and has been to our knowledge, so classified continuously since this date.” (Emphasis supplied.)

Appellant objected that this paper was not itself a “certification” and that it did not say Heard was “certified.” Appellant contends “classification” is not the “certification” or “licensing” which § 40-6-392 (e) requires the State to prove. Nothing in § 40-6-392 requires the person taking a blood sample to testify at trial as to his “qualifications.” Thus, the State was authorized to prove Heard’s qualifications by means of statutorily authorized certification.

Appellant contends the certification admitted at trial is only an official records search by someone at DHR and is thus hearsay under Harden, supra. This argument is inapposite. The evidence of qualifications in Harden was hearsay because it was offered by a state trooper who could testify only to what hospital personnel had told him. Id. at 675. The document in this case is an official records search made in the course of business by a “Reviewing Official” at DHR. OCGA § 24-7-20 provides that the “attestation of any public officer ... of this state . . . shall give sufficient validity or authenticity to any copy ... of any record, document, paper of file, or other matter or thing in his respective office, or pertaining thereto, to admit the same in evidence.” Although the document merely states that Heard was “classified” as a medical laboratory technician, nothing in § 40-6-392 expressly provides that such a certification is insufficient to prove “qualifications.” Appellant does not contend this document is unauthentic. Absent a specific, supported challenge to the facts asserted by the official record, we conclude that the DHR certificate is in substantial compliance with the requirement in § 40-6-392 (a) (2). OCGA § 1-3-1 (c).

2. Appellant contends the State failed to prove the test result was “valid” pursuant to OCGA § 40-6-392 (a) (1) (A). That statute provides that to be “valid,” chemical analysis of bodily substance shall have been “performed according to methods approved by the Division of Forensic Sciences [DFS] of the Georgia Bureau of Investigation [GBI],” on a machine “which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order,” and that the machine was operated “by an individual possessing a valid permit issued by the [DFS] for this purpose.” (Emphasis supplied.)

The statute further provides, in context, that the GBI/DFS “shall approve satisfactory techniques or methods to ascertain the qualifications and competence of individuals to conduct analyses”; the GBI/ DFS “shall approve . . . techniques or methods ... to issue permits, along with requirements for properly operating and maintaining any testing instruments . . . and to issue certificates certifying that instruments have met those requirements.” (Emphasis supplied.)

The chemist who tested appellant’s blood sample introduced his permit authorizing him to test blood for alcohol content. He testified that he tested appellant’s blood sample using a technique or machine called headspace gas chromatography which “is the approved method for these types of analyses,” and he testified in detail as to the procedure he used. He testified the GBI crime laboratory has controls and techniques to make sure that a test machine is working, and he described those controls and techniques. He testified that the machine used to test appellant’s blood was brand new and that therefore there were no maintenance records on that machine and the factory representative “has not had to come out,” but to the best of his knowledge it was working properly based on the controls and methods he used to test the accuracy of the machine. He testified he did not “lift up the hood” to see if this machine had all its parts because he is not an engineer, but that according to the tests he used, the machine was working “fine.”

The chemist had his GBI/DFS testing manual at trial and offered to give them to appellant’s counsel who refused to receive them. At the pretrial hearing on these issues, a copy of the rules and regulations enacted by the GBI pursuant to this statute was available and was studied by the court, the State’s attorney and appellant’s attorney. According to appellant’s counsel’s reading of these rules into the record, they provide that “all blood tests will be performed in accordance with, a quantitative gas chromatographic technique.” (Emphasis supplied.)

We find the State sufficiently complied with its burden to prove the test result in this case was “valid” under OCGA § 40-6-392 (a) (1) (A). The State sufficiently proved by competent circumstantial evidence that the test was performed “according to methods approved by the [GBI/DFS],” and “on a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order,” and “by an individual possessing a valid permit issued by the [GBI/DFS] for this purpose.”

The State also proved that the GBI/DFS had “approve[d] satisfactory techniques or methods to ascertain the qualifications and competence of individuals to conduct analyses” and “to issue permits, along with requirements for properly operating and maintaining any testing instruments, and to issue certificates certifying that instruments have met those requirements.”

We find Hobbs v. State, 224 Ga. App. 314 (480 SE2d 330); Cullen v. State, 223 Ga. App. 356 (477 SE2d 620); State v. Kampplain, 223 Ga. App. 16 (477 SE2d 143); and State v. Hunter, 221 Ga. App. 837 (473 SE2d 192) to be distinguishable from this case. In Hobbs and Hunter, it was undisputed that the breath test machine lacked all its parts; likewise in Kampplain (id. at 17), the breath test machine evidently lacked all its parts. In Cullen at 357, we said that Hunter and Kampplain had held that “[u]nder OCGA § 40-6-392 (a) and (f) [breath testing machines] the prosecution was required to introduce the certificate of compliance required by OCGA § 40-6-392 (a)”; however, in this case the fact the machine had all its requisite parts was established circumstantially through the testimony of the chemist who performed the test. In Kampplain, at 18, we refused to “reach the issue whether in each and every case where the statutory certificate has not been provided, including situations where no certificate is provided but the machine had all the required components attached, the result of the chemical analysis test is automatically excluded from evidence. Evidence exclusion is an extreme sanction and not one favored as a matter of course in the law” (Emphasis supplied.) We reach that issue today and hold that substantial statutory compliance can be established by circumstantial evidence arising from the testimony of a chemist who operated the machine and performed the test.

In this case it is not suggested that the gas chromatograph (blood) machine had any part missing. It is not suggested that the gas chromatograph is susceptible to being operated with any of its parts removed or “overridden,” as has been the case in certain Intoxilyzer (breath) cases. The record shows the GBI/DFS issued rules which approved the gas chromatograph machine for use in blood testing. Cf. Corner v. State, 223 Ga. App. 353, 354 (477 SE2d 593). The testimony of the chemist shows he expertly tested and calibrated the machine and concluded that it was working when he tested appellant’s blood. He testified that the GBI/DFS had issued written “approved techniques or methods” as to how to use the gas chromatograph machine; these apparently were in the manual which the expert offered to defense counsel at trial but which defense counsel refused to receive. That this manual was not admitted at trial cannot entirely be laid at the State’s feet; appellant cannot contend that the State did not produce it or that he had no access to it, and he could not refuse to look at it and then complain that the State never produced it at trial.

We find no requirement in OCGA § 40-6-392 that a “certificate” of any kind must be introduced at trial in order for the test result to be admitted as “valid.” The only requirement as to a certificate is that the GBI/DFS shall approve satisfactory techniques or methods to issue certificates. And nothing in the Code section requires admission of any certification. Both OCGA § 40-6-392 (e) and (f) merely provide that certifications “shall be admissible” to prove the foundational requirements of OCGA § 40-6-392 (a) (1) (A). “Certificates” are not the exclusive means of laying the foundation to admit alcohol test results. If the legislature intends the State to prove more, it must expressly require it, for exclusion is an extreme sanction we will not invoke on uncertain language. See Kampplain, supra.

Notwithstanding our above holding, we admonish prosecutors to become thoroughly familiar with the statutory requirements of OCGA § 40-6-392 and strive to follow strictly the procedures therein contained.

3. Appellant asserts that the “methods” and “procedures” required by § 40-6-392 (a) (1) (A) to be enacted by the GBI were unavailable to him, but the record plainly shows this to be untrue.

4. Appellant contends the arresting officer gave inaccurate implied consent advice. The officer read to appellant the implied consent warning from the Department of Public Safety form which contains the most recent codified implied consent warnings verbatim. We will therefore not hold this warning to be insufficient. Howard v. State, 219 Ga. App. 228 (465 SE2d 281).

5. The trial court did not err in quashing appellant’s subpoenas for production of “scientific reports.” The defense must make a prima facie showing that the requested materials are relevant to his defense and that he has a right to the materials. Anglin v. State, 173 Ga. App. 648 (327 SE2d 776), and the trial court may properly quash an unreasonable and oppressive subpoena. OCGA § 24-10-22 (b) (1); Aycock v. Household Finance Corp. &c., 142 Ga. App. 207 (235 SE2d 578). Less than one week before trial, appellant sought to subpoena all chain of custody documents and all notes and information generated by the chemist pertaining to standards and controls he used; all manuals, training materials, written techniques, methods, procedure or protocols referred to by him; and all records pertaining to other persons tested for DUI ten days before and after appellant’s arrest. We agree that in this case, the subpoena was overbroad and unreasonably oppressive. Hill v. Willis, 224 Ga. 263 (161 SE2d 281). Appellant did not have a right to the notes and work products of the State’s experts (Williams v. State, 251 Ga. 749, 752 (312 SE2d 40)), nor was he entitled to a copy of the graph used to produce the final crime lab report. Cothran v. State, 177 Ga. App. 58, 60 (338 SE2d 513).

Decided March 4,1997

Reconsideration denied March 27,1997

Monte K. Davis, for appellant.

Ralph T. Bowden, Jr., Solicitor, Noah H. Pines, W. Cliff Howard, Assistant Solicitors, for appellee.

6. We have examined the evidence in this case and find it sufficient to persuade a rational trier of fact of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 ' LE2d 560).

Judgment affirmed.

Beasley and Blackburn, JJ, concur.


source: Caselaw Access Project

author: Ruffin, Judge. McMurray, Presiding Judge,

license: Public Domain

text:
    A96A2026.
    WILLIAMS v. CITY OF SOCIAL CIRCLE.
    (484 SE2d 687)
   Ruffin, Judge.

Kathy Williams sued the City of Social Circle for injuries she sustained when she fell on a sidewalk located within the city limits. The city answered, denying it had any duty to maintain the sidewalk, and moved for summary judgment on the ground that it was relieved of liability under OCGA § 32-4-93 (b). The trial court granted the city’s motion, and Williams appeals. We affirm.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

In this case, Williams alleged that the city negligently maintained the sidewalk and that this caused her to trip and fall. In its answer, the city asserted that it did not own the property on which the sidewalk is located and denied it had any responsibility for maintaining the sidewalk. In support of its motion for summary judgment, the city presented affidavits from its mayor, city clerk, and utilities superintendent. The city clerk and the utilities superintendent stated in their affidavits that the sidewalk on which Williams fell lies within the state’s right-of-way for State Highway 11. All three city officials further stated that the city did not maintain the subject sidewalk.

In response to the city’s motion for summary judgment, Williams pointed to evidence purportedly showing that the city admitted liability for her injuries. Specifically, Williams points to the deposition testimony of Arma Stewart, a claims manager investigating Williams’ claim on behalf of a business fronting the sidewalk where Williams fell. In her deposition, Stewart testified that when she contacted the city clerk about the claim, the clerk informed her that the accident happened on the city’s property and that the city accepted responsibility for the accident. Williams contends that the city clerk’s admission of liability creates a jury question concerning whether the city was obligated to maintain the sidewalk. We disagree.

To prevail on her negligence claim, Williams must show that the city had “ ‘[a] duty, or obligation, recognized by law, requiring [it] to conform to a certain standard of conduct, for the protection of others against unreasonable risks.’ ” Lau’s Corp., supra at 492. Under OCGA § 32-4-93 (a), a city is generally obligated to maintain the roads of its municipal street system. A city is similarly obligated to maintain those portions of the state highway system lying within its corporate limits if the city has “constructed or agreed to perform the necessary maintenance of such road[s].” OCGA § 32-4-93 (b). This obligation also applies to public sidewalks. See Rischack v. City of Perry, 223 Ga. App. 856, 858 (2) (479 SE2d 163) (1996); Snow v. Johnston, 197 Ga. 146, 155 (4) (28 SE2d 270) (1943) (overruled on other grounds); East Lands, Inc. v. Floyd County, 244 Ga. 761, 765 (262 SE2d 51) (1979)); Nathan v. Oakland Park Supermarket, 123 Ga. App. 591 (181 SE2d 868) (1971).

Keeping in mind that the city was not under a burden to affirmatively disprove Williams’ case, but only to show that there is no evidence on at least one essential element, our review of the record supports the city’s claim that there is no evidence it had any duty to maintain the sidewalk. The only evidence purporting to establish such a duty was the city clerk’s alleged statements that the city was obligated to maintain the sidewalk and that it accepted responsibility for Williams’ injuries. Such admissions, however, are hearsay, and Williams has not shown that they are admissible under any recognized exception to the rule against hearsay. See OCGA § 24-3-1.

Williams’ attempts to establish that the admissions are admissible under OCGA §§ 24-3-33 and 10-6-64 are without merit. OCGA § 24-3-33 provides: “Admissions by an agent or attorney in fact, during the existence and in pursuance of his agency, shall be admissible against the principal.” OCGA § 10-6-64 provides: “The agent shall be a competent witness either for or against his principal. His interest shall go to his credit. The declarations of the agent as to the business transacted by him shall not be admissible against his principal unless they were a part of the negotiation constituting the res gestae, or else the agent is dead.” (Emphasis supplied.) “ ‘The Code sections must be construed together, and the second effectively limits the scope of the first. (Cit.)’ [Cit.]” Brooks v. Kroger Co., 194 Ga. App. 215, 216 (2) (390 SE2d 280) (1990).

The city clerk’s admissions in this case were not part of the res gestae. According to the record, Williams’ accident occurred on December 7, 1992. The city clerk’s declarations concerning ownership and liability, however, were not made until August 4, 1993. In Brooks, we held that declarations made three days after the accident would not be part of the res gestae. Id. “Obviously, a declaration made [approximately eight months] after the fact, as in the present case, would not be part of the res gestae.” Id.

Similarly, Williams has not shown, as the dissent concludes, that the declarations were admissible because they were made by the city clerk with reference to the act in controversy and during the performance of her duties for the city. We note initially, that Baker v. Lowe Elec. Co., 47 Ga. App. 259 (170 SE 337) (1933) is physical precedent only. Furthermore, the rule stated by the dissent in its quote of headnote 2 of the opinion is incomplete. Although it is true that such admission by an agent is admissible against the principal, it must be shown that the agent spoke “ ‘with competent authority.’ ” (Emphasis in original.) Id. at 263. Where the declarant is an ordinary agent or servant, there is no presumption that such authority exists. Id. It is only where (1) the agent can be considered the alter ego of the principal (such as a corporation’s president), and (2) the agent speaks while in the due performance of his official duties relating to the transaction involved, that such admissions, “will be taken as being made by the corporation itself.” Id. at 263-264.

Unlike a corporation’s president, the city clerk in this case cannot be considered the alter ego of the city. Furthermore, although Williams has shown that the city clerk made the admissions during the existence and in pursuance of her agency, she has not shown that the clerk was “ ‘acting within the scope of [her] authority. . . .’” Gordon v. Athens Convalescent Center, 146 Ga. App. 134,135 (1) (245 SE2d 484) (1978). Without any such evidence, Williams has not established the hearsay declarations upon which she relies, “were admissible under any recognized exception to the rule against hearsay. [Cit.]” Simmons v. State, 266 Ga. 223, 227 (4) (466 SE2d 205) (1996).

Accordingly, Williams was required to point to some other specific, admissible evidence creating a genuine issue of fact as to the city’s duty to maintain the sidewalk. This she failed to do. Under these circumstances, the trial court properly granted summary judgment to the city. See Brooks, supra.

Judgment affirmed.

Andrews, C. J., Birdsong, P. J, Pope, P. J, Beasley, Johnson, Blackburn and Smith, JJ., concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent. “ ‘A corporation can only make admissions through its agents, and the admissions of such agents acting within the scope of their powers and about the business of their agency, are admissible.’ Imboden v. Etowah & Battle Branch Mining Co., 70 Ga. 86 (11). See Code §§ 38-406[, now OCGA § 24-3-33], 4-315[, now OCGA § 10-6-64].” Timeplan Loan &c. Corp. v. Moorehead, 221 Ga. 648, 649 (1), 650 (146 SE2d 748). Accord Coffee Butler Svc. v. Sacha, 208 Ga. App. 4 (430 SE2d 149). In light of the Supreme Court of Georgia’s application of these two Code sections, it is my view that Anna Stewart, Casualty Claims Manager for Insurance Adjustment Services, Inc., may testify “Anne Peppers, the City Administrator of Social Circle, told us that they had accepted responsibility for the accident and they had turned it over to the Georgia Municipal Association.” This evidence is admissible to estop the defendant municipal corporation from denying it accepted responsibility for any liability to plaintiff Kathy E. Williams for her painful injuries. The res gestae requirement is fulfilled by the circumstance that Anne Peppers (allegedly) made this statement in her capacity as the City’s spokesperson to the City’s agent for investigating the accident, while addressing the substance of that investigation. It is not the proximity to plaintiff’s fall that determines whether Anne Peppers’ (alleged) admission against the City’s interest is within the res gestae but its proximity to the investigation of the resulting tort claim which Anne Peppers ordered undertaken on behalf of the City. The relevancy of such testimony “rests on the theory that what he[, the agent,] does and says dum fervet opus, — that is, with reference to the act in controversy and while engaged in its performance, — is a part of the res gestae of the transaction and constitutes part of and throws light upon what the principal himself actually does.” Baker v. Lowe Elec. Co., 47 Ga. App. 259 (hn. 2) (170 SE 337). Since, in the case sub judice, the defendant municipality has not established the nonexistence of every material fact question, I respectfully dissent from the affirmance of summary judgment.

Decided March 7,1997

Reconsideration denied March 27,1997.

David R. Hughes, E. Graydon Shuford, for appellant.

Carothers & Mitchell, Richard A. Carothers, Thomas M. Mitchell, for appellee.


author: Smith, Judge.

text:
    A97A0039.
    BROWN v. THE STATE.
    (484 SE2d 795)
   Smith, Judge.

Following a bench trial, the trial court convicted Alexander Jerome Brown of giving a false name to a law enforcement officer, OCGA § 16-10-25, and impersonating another in the acknowledgment of recognizance, bail, or judgment, OCGA § 16-10-73. He appeals only the latter conviction, contending the State did not produce evidence sufficient to sustain a conviction for this felony offense. In this case of first impression, we agree and reverse.

The facts are not in dispute. Brown, an adult, was arrested on certain charges and told the police officer his name was “Jacoby Burns,” giving a birth date that made him a juvenile. These charges were presented to the juvenile court, which adjudicated “Burns” a delinquent. Brown later revealed his true identity to authorities and told a police officer that “Jacoby Burns” was actually the name of a young man who had lived in his apartment complex. As Brown contends, this evidence does not support a conviction for violation of OCGA § 16-10-73, which provides for felony prosecution of “[a]ny person except an attorney of record who shall acknowledge or cause to be acknowledged, in any of the courts of the state or before any authorized officer, any recognizance, bail, or judgment in the name of any person not privy or consenting thereto. . . .”

We reject the State’s argument that it was not required to prove that “Jacoby Burns” was an actual person. OCGA § 16-10-73 applies to one, “except an attorney of record,” who “acknowledge^]” a bail or judgment “in the name of any person not privy or consenting thereto” (Emphasis supplied.) The felony statute is directed toward those who either impersonate another in a judicial proceeding or abet an impersonator. This interpretation is supported by the different language used in OCGA § 16-10-25, which makes it a misdemeanor to give a false name to a police officer. Comparing the different language used in the two statutes, it does not appear that OCGA § 16-10-73 was intended to cover the mere giving of a false name in a judicial proceeding. See State v. Nix, 220 Ga. App. 651, 652 (1) (469 SE2d 497) (1996) (statutes addressing similar matters should be construed in conjunction with one another).

This conclusion is supported by reference to the statute addressing impersonation of another in the course of an action, proceeding, or prosecution. OCGA § 16-10-96. As the one impersonated must be an actual person in order to demonstrate the possibility of “damage, loss, or injury” from impersonation, OCGA § 16-10-96, the one impersonated must be an actual person in order for the trier of fact to consider whether he or she is “privy or consenting” to impersonation under OCGA § 16-10-73.

Because criminal statutes that are subject to more than one interpretation must be construed in favor of the defendant, Asberry v. State, 220 Ga. App. 40, 42 (467 SE2d 225) (1996), we find that a conviction under OCGA § 16-10-73 requires proof that the defendant represented himself or another person to be an actual person. See also People v. Danisi, 449 NYS2d 874, 875 (1982), holding that a statute forbidding the impersonation of another does not apply to a defendant who provides false information.

The State also argues that because Brown represented himself as “Jacoby Burns” in the juvenile delinquency proceeding, he “acknowledged” a “judgment” of delinquency against Jacoby Burns, who was not privy to and did not consent to that action. At a minimum, the State’s proof failed because insufficient evidence was produced to show that Jacoby Burns was the name of a real person. The only evidence on this issue was the defendant’s own confession to police, in which he stated that he falsely used the name of another young man he had known. The State is required to prove the elements of the crime beyond a reasonable doubt, independently of a confession. OCGA § 24-3-53; Johnson v. State, 205 Ga. App. 760, 761 (423 SE2d 702) (1992). Brown’s confession, uncorroborated by any independent evidence showing Jacoby Burns was the “name of any person,” as opposed to merely a false name, was insufficient to prove this material element of the offense. See Shaver v. State, 199 Ga. App. 428, 430 (405 SE2d 281) (1991) (uncorroborated confession insufficient to support conviction). Brown’s conviction on this count is, therefore, reversed and this case remanded for resentencing on Brown’s conviction for violation of OCGA § 16-10-25.

Decided March 27,1997.

Harrison & Harrison, Samuel H. Harrison, for appellant.

Daniel J. Porter, District Attorney, Jefferson B. Blandford, Assistant District Attorney, for appellee.

Judgment affirmed in part, reversed in part, and remanded with direction.

McMurray, P. J., and Beasley, J., concur.

       We need not reach the issue here of whether a real person may be impersonated after death. We note, however, that the State also failed to show that Jacoby Burns was still living at the time of the offense, even if he was a real person whom Brown had known at some time in the past.

       We note the State did not charge Brown with the felony of perjury, OCGA § 16-10-70 (a), even though the bench trial testimony indicates he testified under oath in the juvenile proceeding under the alias “Jacoby Burns.”


author: Johnson, Judge.

text:
    A97A0054.
    MARTIN v. GRECO.
    (484 SE2d 789)
   Johnson, Judge.

Jodi Martin appeals from a superior court order awarding Steven Greco custody of their minor daughter, and requiring her to pay child support to Greco. Martin, who was never married to Greco, gave birth to the child on September 25, 1989, and had physical custody of her until the order at issue in this case. Greco subsequently filed a petition for legitimation, which the trial court granted in November 1995. The legitimation order awarded the parties joint legal custody of the child, and provided that she was to physically reside with Martin. Neither party challenges the legitimation order.

Ten days after the legitimation order was entered, Greco filed a petition to modify custody, asserting a material change of condition had occurred and that the best interest of the child would be served by awarding custody to him. The trial court held a hearing on the petition in May 1996, and received evidence, including the report of the child’s guardian ad litem. The guardian ad litem recommended that the court award custody to Greco because he could provide a more stable environment for the child than Martin, and could spend more time with her. The court then awarded custody to Greco, awarded visitation rights to Martin, and required her to pay child support. We granted Martin’s petition for discretionary appeal from this order. For the reasons set out below, we affirm the custody award, reverse the award of child support, and remand the case for entry of a new support award.

1. Martin contends the trial court erred in finding that changed circumstances justified a change in custody, claiming Greco presented evidence only of the parties’ circumstances as they existed before the legitimation petition was granted.

A petition to change child custody should be granted only if the trial court finds that there has been a material change of condition affecting the welfare of the child since the last custody award. Templeman v. Earnest, 209 Ga. App. 557, 558 (434 SE2d 106) (1993); see OCGA §§ 19-9-1 (b) and 19-9-3 (b). If there has been such a change, then the court should base its new custody decision on the best interest of the child. See OCGA § 19-9-3 (a) (2). If the record contains any reasonable evidence to support the trial judge’s decision on a petition to change custody, it will be affirmed on appeal. Phillips v. Drake, 215 Ga. App. 210, 211 (1) (449 SE2d 879) (1994).

At the hearing on the petition to change custody, Martin admitted that her residence had changed more than once since the granting of the legitimation petition, that it would likely change again soon, and that the child was sleeping at Martin’s mother’s house because there was not room for her in the quarters Martin shared with friends. The trial court was authorized to find these repeated changes of residence material because such changes disrupted the stability of the child’s environment and separated her from her custodial parent for a significant period of time on a daily basis. The trial court was also authorized to find that awarding custody to Greco would be in the child’s best interest because he had demonstrated an ability to maintain both a stable residence and a work schedule that allowed him to spend more time with his daughter. Though the record shows Martin expended considerable effort to support the child despite difficult circumstances, she has not shown an absence of reasonable evidence to support the trial judge’s decision. Therefore, this enumeration of error is without merit.

2. Martin maintains the trial court erred in calculating the amount of child support she is obligated to pay. We agree.

The trial court ordered Martin to pay child support of $485 per month, and stated that this amount was based on Martin’s stipulation that her annual income was $29,130. Martin correctly points out that this figure was based on her Domestic Relations Financial Affidavit, in which she claimed a gross monthly income of $2,427, including $433 per month in child support received from Greco. It was error to include child support paid by Greco in Martin’s income for purposes of calculating her child support obligation because this income would cease as a result of the court’s new order. On remand, the trial court is directed to recalculate Martin’s support obligation in a manner consistent with this opinion. See OCGA § 19-6-15 (b), (c).

Decided March 27,1997.

Danley & Associates, Daniel R. Tompkins III, for appellant.

Linda J. Spievack, for appellee.

Judgment affirmed in part and reversed in part, and case remanded with direction.

Pope, P. J., and Blackburn, J., concur.


author: Birdsong, Presiding Judge.

text:
    A97A0444.
    BANKS v. THE STATE.
    (484 SE2d 786)
   Birdsong, Presiding Judge.

A jury convicted Daniel Bruce Banks of burglary. As a recidivist, he received the maximum sentence of 20 years without parole pursuant to OCGA § 17-10-7 (c). On appeal, Banks challenges the sufficiency of the evidence, the trial court’s admission of similar transaction evidence, the court’s order that he wear leg shackles during trial, and the court’s decision to allow the district attorney’s investigator to sit at the prosecution’s table during trial. He also claims the trial court erred by refusing to probate a portion of his sentence. Held:

1. We review Banks’ challenge to the sufficiency of the evidence. He is no longer presumed innocent. We construe the evidence and all reasonable inferences from the evidence most strongly in favor of the verdict and determine whether a rational trier of fact could have found Banks guilty of burglary beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Sampson v. State, 209 Ga. App. 213, 214-215 (1) (433 SE2d 136).

The evidence showed that on the evening of October 2, 1995, the victim retired to bed after locking the door of her apartment in a Lamar County complex. Around 2:00 or 3:00 a.m., she awoke and found Banks standing in her bathroom holding something in his hands. The victim recognized Banks, but she did not know him well and had not given him permission to enter her apartment. When she asked Banks why he was there, he claimed to be looking for the apartment of an old girl friend. When the victim asked what Banks wanted, he replied, “I was just looking.” She fled the bathroom, and within a few minutes Banks left the apartment. The victim later found her window open and its shade torn down; the window had been closed when she went to bed. The front door was also standing open. In the sink the victim found an old billfold which had been in her bedroom, and she identified this billfold as the object Banks was holding in his hands. In his statement to police, Banks claimed he thought his ex-girl friend lived in the apartment. Evidence showed the former girl friend lived in an apartment in a different section of the complex.

This evidence alone supports the verdict. Whether Banks entered the victim’s apartment with intent to commit a theft was a jury question, especially in light of evidence indicating he had entered the locked apartment through a window and had taken a billfold from the victim’s bedroom. See Harris v. State, 222 Ga. App. 56, 57 (2) (473 SE2d 229); Legg v. State, 204 Ga. App. 356, 357 (1) (419 SE2d 151).

2. The State also introduced “similar transactions” evidence of three other crimes Banks committed over a two-month period in 1986. Because Banks pled guilty to these crimes, and the trial court found them sufficiently similar to the present burglary, the court admitted this evidence to show Banks’ intent. Banks enumerates these rulings as error.

In a criminal trial, evidence of another crime may be admitted if: (1) sufficient evidence shows the defendant committed the other crime; (2) the other crime is sufficiently similar to or connected to the crime with which the defendant is charged such that proof of the former tends to prove the latter; and (3) the evidence is tendered for an appropriate purpose. Morrill v. State, 216 Ga. App. 468, 475 (11) (454 SE2d 796). The trial court did not err in finding the similar transactions at issue met each of these three requirements.

The first similar transaction was the May 19, 1986 burglary of a woman’s trailer in Lamar County. While the victim slept, Banks entered the trailer through a window and took $251 from her purse. The jury also heard that on May 27, 1986, Banks attempted to burglarize a home in Lamar County. He entered the screen porch and broke a window before being frightened away by a dog. Finally, on June 5, 1986, Banks attempted burglary when he tore the screen door on a Lamar County home and tried to enter. Banks pled guilty to each crime, establishing his identity. See Hunt v. State, 219 Ga. App. 741, 743 (3) (466 SE2d 894). The court found this evidence relevant to Banks’ intent, a key issue in this case. See Stephenson v. State, 220 Ga. App. 95, 96 (2) (469 SE2d 266).

Although Banks contends these crimes were not sufficiently similar to the present burglary, there is no requirement that the similar transactions be identical to the charged crime. Sessions v. State, 207 Ga. App. 609 (1) (428 SE2d 652). In each prior crime, as in the charged crime, Banks entered a Lamar County residence with the intent to commit a theft or attempted to do so. See Methvin v. State, 189 Ga. App. 906, 909 (2) (377 SE2d 735). When a similar transaction is introduced to show intent, less similarity between the prior crime and present charge is required. See Hargrove v. State, 202 Ga. App. 854, 856 (1) (415 SE2d 708). Despite the fact that the similar transactions took place nine years before the present burglary, the lapse of time did not render this evidence inadmissible. In determining the relevancy of these 1986 crimes, the trial court was entitled to consider the fact that Banks had been incarcerated for several of the intervening years. Harris v. State, 222 Ga. App. 52, 54 (2) (a) (473 SE2d 232). The trial court did not err by finding this similar transaction evidence more probative than prejudicial, especially in light of the limiting instructions given the jury regarding the use of this evidence. See Stephenson, supra.

3. Banks claims the court erred by allowing the district attorney’s investigator to remain at the prosecution table during trial. This investigator did not testify, but Banks claimed it was “inequitable” for the State to have his assistance during trial. We find no error. Even where the rule of sequestration is invoked, the trial court has discretion to allow a testifying witness to remain in the courtroom during trial and assist a party. See, e.g., Gray v. State, 222 Ga. App. 626, 631 (2) (476 SE2d 12). This investigator was not a witness subject to sequestration, and Banks does not show how his presence harmed the defense; therefore, this enumeration is without merit. See Lackey v. State, 246 Ga. 331, 334-335 (5) (271 SE2d 478) (no error in allowing sheriff, who did not testify, to remain in courtroom during trial).

4. Banks enumerates as error the trial court’s decision that he remain in leg shackles during the trial. Banks’ attorney raised this issue at a pre-trial motion, at which time the sheriff informed the court that Banks was “bad to run, and he would run out of this courtroom while court is going on.” The same indictment charging Banks with burglary charged him with escaping from the jail, and the sheriff stated that Banks had run when officers went to pick him up on this burglary charge.

The sheriff’s statement gave the trial court good and sufficient cause for its decision, and we find no abuse of discretion. See Jivens v. State, 215 Ga. App. 306, 307 (4) (450 SE2d 328); Gude v. State, 213 Ga. App. 573, 574 (2) (445 SE2d 355). The trial court was not required to put the sheriff under oath before receiving his statements, as a court officer’s statement in place is considered prima facie true. Harbin v. State, 165 Ga. App. 631, 633 (2) (302 SE2d 386). As Banks made no request to cross-examine the sheriff and no effort to challenge his statements, he waived the opportunity to do so. Moon v. State, 258 Ga. 748, 755 (12) (375 SE2d 442).

5. In his final enumeration, Banks contends the trial court erred by failing to consider probating a portion of his sentence. A four-time recidivist, Banks was sentenced to the maximum of twenty years, which the court directed was to be served without parole pursuant to OCGA § 17-10-7 (c). As its colloquy during sentencing reflects, the court believed that § 17-10-7 (c) did not require it to give Banks the maximum sentence but did not allow it to probate or suspend any part of the sentence imposed. The court’s belief was erroneous, as the State acknowledges in its brief. See State v. Carter, 175 Ga. App. 38 (332 SE2d 349), discussing the interplay between OCGA § 17-10-7 (a) and former OCGA § 17-10-7 (b), the language of which is now found at subsection (c). As Carter makes clear, OCGA § 17-10-7 (a) required the trial court to impose the maximum sentence but gave it discretion to probate or suspend part of that sentence. Subsection (c), which prohibits parole, did not take away that discretion. The trial court’s failure to exercise its discretion was error, which we cannot find harmless under these circumstances. See Brooks v. State, 165 Ga. App. 115, 117 (4) (299 SE2d 167). The sentence is therefore vacated, and this case is remanded for resentencing in accordance with this opinion.

Decided March 27,1997.

John L. Strauss, for appellant.

Tommy K. Floyd, District Attorney, Marie R. Banks, Assistant District Attorney, for appellee.

Judgment of conviction affirmed; sentence vacated and case remanded for resentencing.

Eldridge, J, and Senior Appellate Judge Harold R. Banke concur.


author: McMurray, Presiding Judge.

text:
    A97A0641.
    TUCKER v. THE STATE.
    (484 SE2d 793)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with false imprisonment, terroristic threats, and battery for acts committed against his wife (“the victim”) on June 8, 1995. The trial court directed a verdict of acquittal as to the charge of terroristic threats. The jury acquitted defendant of the false imprisonment charge but found him guilty of battery. Viewing the evidence to uphold the jury’s verdict of guilty, the victim affirmed that her seven-year marriage to defendant was “rather rocky.” “The last home [they] had was February of ’94.” Thus, they would stay with defendant’s relatives or the victim’s mother.

On the day in question, the victim and defendant “had an argument about [the victim] stopping the night before and speaking to a mutual friend. . . .” The victim told defendant that she was not going to live like that anymore; that she wanted a divorce; and that she would be leaving and taking their daughter to her (the victim’s) mother’s house. Defendant was calm as he helped the victim gather her things and then drove her to her mother’s. “Maybe two hours later, ... he approached [the victim] on Alabama Highway, . . . traveling [in] the same direction. [The victim] was going to [her] mother’s house, and he [defendant] motioned for [her] to pull over.” Defendant was now “[v]ery agitated.” In front of their six-year-old daughter, defendant “was accusing [the victim] of having a boyfriend.” Defendant got out of his car, approached the victim and brutally beat her face and eye with his fist. He “just started punching — just punched — just kept punching and kept punching and kept punching.” In all, defendant struck his wife with a closed fist seven or eight times. The victim was sitting in her vehicle, where “there’s nowhere to hide or lean out of the way. . . .” Photographs taken by Officer Carl Lively of the Floyd County Police Department depict the victim’s face as bruised and swollen and her right eye deeply blackened. “It was swollen and red, like a blood red. She had some scrape marks ... on her shoulder going down onto her back.” The victim “also had some red marks on her neck . . . that went around onto the front that were apparently from a hand, . . . choke marks.”

The trial court sentenced defendant to serve 12 months as a misdemeanant. The instant appeal marks the return of this case to the Court of Appeals, following a remand in order to hear defendant’s motion to correct the record. Held:

1. Although not enumerated, we find the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of battery for intentionally causing his wife visible bodily harm as alleged in Count 3 of the indictment. OCGA§ 16-5-23.1 (a).

2. Defendant’s first enumeration of error contends his character was improperly placed in issue “during the State’s case-in-chief where the victim testified, [allegedly] in direct violation of the trial court’s previous [grant of a motion in limine], that [defendant] was on probation.”

Scrutiny of the record, however, reveals that the offending reference to defendant’s probation came during defendant’s cross-examination of the victim, in response to defendant’s own open-ended questioning. “Thus, error, if any, was self-induced and provides no basis for reversal. Bess v. State, 187 Ga. App. 185, 189 (5) (369 SE2d 784) (1988).” Fitzgerald v. State, 193 Ga. App. 76, 77 (7), 78 (386 SE2d 914). Moreover, in the case sub judice, defendant declined the trial court’s offer of curative instructions. “We find no error. See Riley v. State, 181 Ga. App. 667, 669 (2) (353 SE2d 598) (1987).” Id. at 78 (8).

3. The trial court instructed the jury on simple battery as a lesser offense included within the indicted offense of battery, and further charged the jurors they may consider whether the victim’s alleged opprobrious or abusive language amounted to “justification for simple battery.” Defendant’s second and third enumerations nevertheless complain that this charge was argumentative and failed to define or explain defendant’s sole defense of justification.

Decided March 27,1997.

Gammon & Anderson, W. Wright Gammon, Jr., for appellant.

Defendant’s sole conviction was for the indicted, i.e., greater offense of misdemeanor battery under OCGA § 16-5-23.1 (a). “Conviction of the greater offense renders harmless any error, although we find none, in the charge as given for the lesser included offense of [simple battery, OCGA § 16-5-23 (a)]. ‘In this case no injury resulted, because the jury found the accused guilty of ([battery under OCGA § 16-5-23.1 (a)] and that verdict is supported by sufficient competent evidence). If the jury had found the accused guilty of [simple battery under OCGA § 16-5-23 (a)], there would be room for complaint of the (allegedly) inappropriate instructions.’ Smith v. State, 8 Ga. App. 680, 682 (2) (70 SE 42) (1911).” Rodriguez v. State, 211 Ga. App. 256 (1), 257 (439 SE2d 510). Consequently, these enumerations are without merit.

4. The fourth enumeration contends defendant was denied a fair trial because he was prosecuted on Count 2 of the indictment, terroristic threats, “even though the assistant district attorney knew that no prima facie case existed.” He argues the State admitted that this felony count was pursued as part of a strategy to impugn the character of defendant. We disagree.

First, there is considerable doubt whether defendant preserved any objection on these grounds. We are not affirmatively shown on the record precisely where defendant made any contemporaneous objection or motion for mistrial. Moreover, a careful reading of the record reveals that the only “strategical decision . . .” to which the State admitted was the merit of defendant’s motion for directed verdict of acquittal to the charge of terroristic threats. But this was only because the State’s attorney decided not to place defendant’s daughter on the stand to testify whether she witnessed any beating or choking of her mother at the hands of her father. In our view, this circumstance does not constitute evidence of prosecutorial misconduct. Nor can we perceive how defendant has sustained any harm from the grant of a directed verdict of acquittal on the charge of terroristic threats. This enumeration is without merit.

Judgment affirmed.

Beasley and Smith, JJ, concur.

Stephen F. Lanier, District Attorney, Forrest K. Shealy, Assistant District Attorney, for appellee.


text:
    A97A0851.
    DOEHLING v. THE STATE.
    (484 SE2d 791)
   Smith, Judge.

Barbara Joan Doehling appeals the denial of her plea in bar filed after the trial court disqualified a panel of jurors during voir dire. We agree with the State that the trial court did not abuse its discretion in disqualifying the jury panel and that jeopardy did not attach prior to the disqualification. We therefore affirm.

Doehling was charged by accusation with DUI and speeding. The case proceeded to trial, and during voir dire, Doehling’s attorney introduced her to the jury panel as follows: “This is Barbara Joan Doehling. She goes by Joan. Ms. Doehling lives up in Roswell where she is a homemaker, now raising her eight-year-old daughter by herself.” The State objected to this statement as “totally improper.” The trial court instructed Doehling’s counsel, “At this point, if you want to introduce Ms. Doehling for the purpose of identification by the jury as opposed to pulling in other facts, then why don’t you do that?” Counsel apologized, and voir dire continued.

The next day, when Doehling’s counsel was asking individual questions of the jurors, one juror stated that he had served on another criminal jury and that he “felt bad” because the defendant in that case had been sentenced to 25 years without chance of parole. He added, “And I was thinking in this case, for whatever reason, looking at this woman ... I just really would find ... it difficult to say that she were guilty knowing that something like that could happen again.” In response to defense counsel’s question of whether he could follow the trial court’s instruction that he should not take punishment into consideration, the juror answered, “I would be able to do that but . . . it’s based on something that you said, that she was a single mother with a child at home, and ... I would feel bad if she had to go to jail, regardless if she was innocent or not.” The State requested disqualification of the panel, arguing that defense counsel’s comment the previous day prejudiced the jury and “implanted itself” into the jurors’ minds. The State pointed out that the jury had twice heard that Doehling was a single mother of an eight-year-old and argued that a curative instruction would not remove this fact from the minds of the jurors. The trial court admonished defense counsel but did not disqualify the panel at that time because the court was “not sufficiently convinced that this panel has been poisoned to the extent” argued by the State. Although the court did mention that curative instructions might be appropriate, no such instructions were given.

Individual questioning resumed, and in response to the inquiry of whether he could keep an open mind, another juror answered, “Right. Right. I didn’t know she had an eight-year-old kid. . . .” Defense counsel interrupted with, “You’re willing to just keep an open mind and not lean toward either way?” The juror replied, “Right.” The State again moved to strike the panel, arguing that the fact of Doehling’s single-mother status was before the panel for the third time, curative instructions could not remove this fact from the jurors’ minds, and such an instruction would again remind the jury that Doehling had a small child at home. The court granted the motion.

The next day, before voir dire began with a new panel, Doehling filed a plea in bar, contending that her trial was improperly terminated. The trial court denied the plea, and this appeal ensued.

1. Doehling contends the trial court abused its discretion in disqualifying the entire panel. We disagree. First, Doehling’s own counsel invited the remarks by the jurors with his own introduction of Doehling. One may not complain on appeal of a result he or she induced or aided in causing. See, e.g., Hood v. State, 216 Ga. App. 106 (453 SE2d 128) (1995); Hawkins v. State, 195 Ga. App. 739 (2) (395 SE2d 251) (1990).

Second, unlike Brown v. State, 133 Ga. App. 56, 60 (6) (209 SE2d 721) (1974), cited by Doehling, the trial court did not fail to exercise its discretion. The record shows the trial court did not hastily disqualify the panel. The court first cautioned counsel about his manner of introducing Doehling. Even after one juror expressed his belief that he might not be able to convict Doehling regardless of her guilt, the trial court declined to disqualify the panel, conscientiously choosing instead to listen to responses of other jurors to determine whether their opinions, too, had been tainted by defense counsel’s remark. Only after a second juror expressed concern for Doehling’s child did the trial court grant the State’s motion for disqualification of the panel. Although this juror admitted that he could keep an open mind, this response is not necessarily determinative. See Lively v. State, 262 Ga. 510, 511 (1) (421 SE2d 528) (1992). The response of the second juror indicated that damage caused by defense counsel’s improper comment was not confined to one juror; the response could well have reminded the rest of the panel, for the third time, that should Doehling be found guilty, her eight-year-old might be left without a parent at home.

It is true that one option available to the trial court was to provide curative instructions. See, e.g., Nelson v. State, 199 Ga. App. 487 (405 SE2d 310) (1991). And we have concluded in other cases that jurors’ remarks, even when those remarks commented on the accused’s guilt or innocence, did not provide a basis for disqualification. See id. Here, however, the remarks did not simply disclose one juror’s belief whether Doehling was guilty; the nature of the jurors’ remarks also indicated that defense counsel’s introduction had resulted in incurable prejudice stemming from sympathy for Doehling and her child. Curative instructions, as argued by the State, could have further reminded the panel of Doehling’s status. Because the jurors’ remarks demonstrated the possible inherent prejudice in defense counsel’s introduction, and because further comment by the court via curative instructions could well have exacerbated this problem, we cannot say that the trial court abused its discretion in disqualifying the panel. Compare Giles v. State, 253 Ga. 144, 145 (2) (317 SE2d 527) (1984) (panel retained, although “better practice may have been to excuse” it, after one juror stated that he had “ ‘firsthand knowledge’ ” of defendant’s actions, and “ ‘it wasn’t good’ ”).

Decided March 27,1997.

Robert W. Chestney, for appellant.

Paul L. Howard, Jr., Solicitor, Cynthia G. Strong-McCarthy, Ingrid D. Hartman, Assistant Solicitors, for appellee.

2. Relying on United States v. Halper, 490 U. S. 435 (109 SC 1892, 104 LE2d 487) (1989), Doehling urges this Court to conclude that she was exposed to double jeopardy when the jury was disqualified. Halper is inapposite; it does not address the double jeopardy issue raised by the facts here. Moreover, it is well established that jeopardy does not attach before a jury is impaneled and sworn. See, e.g., Wilson v. State, 217 Ga. App. 544, 545 (458 SE2d 486) (1995); OCGA § 16-1-8 (a) (2). We find no merit in this contention.

Judgment affirmed.

McMurray, P. J, and Beasley, J., concur.

       We note incidentally that in cases such as Nelson and Johnson v. State, 188 Ga. App. 411, 412 (1) (373 SE2d 93) (1988), cited by Doehling, the appeals involved the denial of the defendant’s motion to disqualify the entire jury, rather than the grant of the State’s motion.


author: Pope, Presiding Judge.

text:
    A96A1786.
    DOUGHERTY, McKINNON & LUBY, P.C. et al. v. GREENWALD et al.
    (484 SE2d 722)
   Pope, Presiding Judge.

Dougherty, McKinnon & Luby, PC., formerly Dougherty, McKinnon & Greenwald, P.C. (DM&L), is a professional corporation of certified public accountants in Columbus, Georgia. DM&L, and several other persons and entities not relevant here, brought suit against two of its former employee/shareholders, Richard Greenwald and Richard Denzik, after Greenwald and Denzik terminated their employment with DM&L, and together with Charles Davis, started their own competing accounting firm in Columbus, Georgia known as Greenwald, Denzik & Davis, P.C. (GD&D). In its suit, DM&L in part sought to recover certain liquidated damages from Greenwald and Denzik under the terms of an employment Termination Agreement they had signed based on the fact Greenwald and Denzik had gone into competition with DM&L. In answering the suit, Greenwald and Denzik denied the enforceability of the liquidated damages portion of the agreement, and filed counterclaims against DM&L. In their counterclaims, Greenwald and Denzik both sought to recover under the terms of the Termination Agreement, among other things, the amount each had paid, plus interest, for their capital stock in DM&L. They also both sought the recovery of certain monies they each allegedly loaned to DM&L.

The trial court granted summary judgment to Greenwald and Denzik regarding DM&L’s claim for liquidated damages. We affirmed the trial court on the grounds that the liquidated damages portion of the Termination Agreement amounted to an unenforceable covenant not to compete. See Dougherty, McKinnon & Luby, P.C. v. Greenwald, Denzik & Davis, P.C., 213 Ga. App. 891 (447 SE2d 94) (1994). Thereafter, Greenwald and Denzik moved for summary judgment as to the abovementioned portions of their counterclaims. The trial court granted their motion, and in this appeal, DM&L contends the trial court erred in doing so.

1. DM&L contends the trial court erred in concluding that pursuant to an express provision of the Termination Agreement, Greenwald and Denzik are entitled to recover the sums they each paid for DM&L capital stock, plus interest. Specifically, DM&L argues that as a result of this Court’s determination that the liquidated damages provision of the Termination Agreement was unenforceable, there has been a complete failure of consideration regarding the Termination Agreement and, therefore, none of its provisions, including the one entitling employee/shareholders the right to have their capital stock repurchased by DM&L upon termination of employment, are enforceable. We reject this contention.

In this state, “where an agreement consists of a single promise, based on a single consideration, if either is illegal, the whole contract is void. But where the agreement is founded on a legal consideration containing a promise to do several things or to refrain from doing several things, and [only some] of the promises are illegal, the promises which are not illegal will be held to be valid.” (Citations and punctuation omitted.) Scott v. Hall, 56 Ga. App. 467, 475-476 (192 SE 920) (1937). In this case, the Termination Agreement contains multiple promises. And, as in Scott, the trial court in this case was correct in its determination that the illegal non-compete covenant in the Termination Agreement was not the sole consideration for the multiple promises in the agreement, including the promise to repay Greenwald and Denzik for their capital stock. DM&L’s argument to the contrary ignores the fact that both Greenwald and Denzik each paid a substantial amount of money for their stock and the fact that each of them served DM&L and thus contributed to its value. Clearly their substantial payments for capital stock combined with their years of service to DM&L qualifies as consideration for the promise in the Termination Agreement to repurchase their stock. Consequently, in light of the rule set forth in Scott, the trial court did not err in treating the Termination Agreement as a severable contract, and as such, finding that the multiple promises contained in the agreement, including the stock repurchase provision, were still enforceable even though the non-compete provision was not. When a “contract contains mutual, binding, legal promises independent of [other promises that are] illegal, void provisions, the contract [is] severable, and the legal portions are not annulled by the illegal ones and can be enforced, disregarding the latter.” Martell v. Atlanta Biltmore Hotel Corp., 114 Ga. App. 646, 649 (152 SE2d 579) (1966).

Furthermore, we note that to hold that the entire contract in this case was void based on the illegality of the non-compete provision alone would in essence be the equivalent of finding the non-compete provision binding on Greenwald and Denzik because it would inflict a severe penalty upon them based solely on their permissible competition with DM&L. Such a holding clearly would be repugnant to the law previously established in this case. See Dougherty, McKinnon, 213 Ga. App. 891.

2. DM&L next argues that the trial court erred in determining that it must pay Greenwald and Denzik the purchase price, plus interest, they paid for their capital stock as required under the terms of the Termination Agreement because such a payment would constitute a distribution to a shareholder in violation of OCGA § 14-2-640 (c) (1) in that DM&L would be unable to pay its debts as they became due in the usual course of business after making such a disbursement. This argument is meritless. On its face, OCGA § 14-2-640 applies only to “distributions to shareholders.” Greenwald and Denzik are no longer shareholders of DM&L. Under the terms of the Termination Agreement, their relationship with DM&L, including their shareholder status, ended upon the termination of their employment. At that time, pursuant to the Termination Agreement, DM&L incurred the obligation to repurchase all of Greenwald’s and Denzik’s capital stock, and Greenwald and Denzik became creditors of DM&L rather than employee/shareholders.

The fact that Greenwald and Denzik are no longer DM&L’s shareholders is further evident in light of the provisions of OCGA § 14-7-5, which set forth the parameters as to who can hold stock in a professional corporation. Under OCGA § 14-7-5 (a), only those individuals “licensed to practice the profession for which the corporation is organized and who [are] actively engaged in such practice as an active practicing member of the issuing corporation” may hold shares in the professional corporation. And while OCGA § 14-7-5 (c) expressly provides for a holding period during which shareholders disqualified under subsection (a) can continue to hold shares in a professional corporation, it expressly provides that “[u]pon the actual transfer or redemption [of shares] or termination of the required holding period, whichever first occurs, the . . . disqualified shareholder [] shall cease to be a holder of record for all purposes.” (Emphasis supplied.) In this case, the holding period has long since passed.

3. Finally, DM&L argues that the trial court erred in granting summary judgment to Greenwald and Denzik regarding their claim that they were entitled to recovery of the money each loaned to DM&L. Specifically, DM&L claims that there is a genuine issue of material fact regarding Greenwald’s and Denzik’s entitlement to such money based on Len McKinnon’s affidavit testimony that any such loans were converted to capital contributions with Greenwald’s and Denzik’s consent. Although Greenwald and Denzik dispute the claim that the loans were ever converted to capital contributions with their knowledge and consent, thus creating an issue of fact, it is clear that this conflict in the evidence does not create a genuine issue of material fact in the case. If McKinnon’s affidavit testimony is taken as true, as it must be in this case, then Greenwald and Denzik would be entitled to recovery of the money under the Termination Agreement.

Pursuant to the express terms of the Termination Agreement, DM&L must repurchase “all shares of [its] capital stock owned by [employee/shareholders] for the Repurchase price.” The “Repurchase Price” (i.e., the amount to be paid for a terminated employee/shareholder’s share of DM&L’s capital) is defined in the Termination Agreement as “the actual consideration paid to [the professional corporation] by such Shareholder/Employee for said shares of . . . capital stock.” Under these contractual provisions, which were determined above to be enforceable, the money Greenwald and Denzik loaned to DM&L would qualify as consideration paid to the professional corporation for their respective shares of the corporation’s capital, if the loans were in fact converted to capital as McKinnon claims. Under such circumstances, the loans themselves may no longer exist, but DM&L’s liability for money converted to capital would still exist under the repurchase provision of the Termination Agreement. Thus, even when the facts regarding the loans are construed as DM&L claims they should be, the trial court was correct in awarding summary judgment to Greenwald and Denzik with regard to their recovery of the amount of the money each loaned to DM&L. See Chelena v. Ga. Fed. Sav. &c. Assn., 256 Ga. 336, 337 (349 SE2d 180) (1986) (issues of non-material fact do not preclude summary judgment).

Decided March 13,1997

Reconsideration denied March 28,1997

Hatcher, Stubbs, Land, Hollis & Rothschild, Joseph L. Waldrep, Champion & Champion, Forrest L. Champion, Jr., for appellants.

Buchanan & Land, Clay D. Land, Benjamin A. Land, for appellees.

Judgment affirmed.

Smith, J, and Senior Appellate Judge Harold R. Banke concur.

       Although GD&D and Davis also were named as parties in the lawsuit, they are not involved in this appeal.


text:
    A96A1868.
    KROGER COMPANY v. FARLEY.
    (484 SE2d 742)
   Birdsong, Presiding Judge.

Following the grant of an interlocutory appeal, The Kroger Company appeals the denial of its motion for summary judgment in Michael Farley’s slip and fall case.

The evidence shows that Farley and his wife were walking down an aisle between two produce stands in a Kroger store when he fell. After the fall, Farley noticed several crushed cherries on the floor next to him beneath one of the produce stands. No employees of the store were in the vicinity.

By deposition Farley testified that he was not looking directly at the floor when he fell, but that he had looked down at the floor just before he fell and did not see the cherries. He surmised that the cherries must have blended into the floor, and he said he did not know whether he would have seen the cherries had he been looking down at the moment he fell. Farley stated that he was not distracted by anything and nothing obstructed his view of the floor. Subsequently by affidavit, however, Farley testified that he returned to the Kroger store after his deposition and discovered that the display table next to where he slipped on the cherries had a one-and-one-half foot overhang. He testified that he believes the cherries were under this table and that his view of them was blocked by the overhang.

Kroger submitted no affidavit testimony in support of its motion concerning its cleaning or inspection procedures. In opposition to the motion, however, Farley pointed out that Kroger had admitted in its interrogatory responses that the store did not have a set cleaning schedule for sweeping or spot-mopping. Kroger’s interrogatory responses also stated that it believed the store manager had inspected the produce department 15 to 20 minutes before the incident and that the floor had been swept at some point shortly before or after Farley fell.

Kroger contends the trial court erred in denying its motion because there is no evidence that it had actual or constructive knowledge of the cherries on the floor and because Farley failed to exercise ordinary care for his own safety. Held:

1. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

“[A]t summary judgment a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party’s case. Rather, that party must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party’s case. In other words, summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case.” Id. at 495.

This record demonstrates that the trial court placed the burden on Kroger to prove that it did not have superior knowledge of the substance on the floor. Under Alterman Foods v. Ligón, 246 Ga. 620 (272 SE2d 327), that burden falls on the plaintiff. Therefore, the cases Farley relies upon that were decided either before or after Lau’s Corp. v. Haskins, supra, which seek to impose this burden on defendant-movants are inconsistent with Lau’s Corp. v. Haskins and thus are not valid precedent. Therefore, Kroger had no burden to show that it had an inspection procedure in place. Accordingly, the trial court erred by denying Kroger’s motion on this basis.

2. The record is clear that Farley produced no evidence that Kroger had any knowledge, either actual or constructive, of the cherries on the floor. Therefore, he failed to carry his burden on one of the essential elements of his claim (Moore v. Food Assoc., 210 Ga. App. 780, 782 (437 SE2d 832)) and his claim must tumble like a “house of cards.” Lau’s Corp v. Haskins, supra. Accordingly, as Kroger was not shown to have superior knowledge of the cherries on the floor, the trial court erred by not granting summary judgment to Kroger. Accordingly, the judgment of the trial court must be reversed and the case remanded to the trial court with direction to enter summary judgment for The Kroger Company.

Decided March 18,1997

Reconsideration denied March 28,1997

Webb, Carlock, Copeland, Semler & Stair, Douglas A. Wilde, Matthew L. Hilt, for appellant.

Bobby B. Terry, for appellee.

Judgment reversed with direction.

Senior Appellate Judge Harold R. Ranke concurs. Blackburn, J., concurs in judgment only.


text:
    A96A1987.
    WHITMORE et al. v. FIRST FEDERAL SAVINGS BANK OF BRUNSWICK.
    (484 SE2d 708)
   Pope, Presiding Judge.

On August 30, 1992, at approximately 10:00 p.m., Wayne Whit-more went to make a night deposit for his employer at one of First Federal Savings Bank of Brunswick, Georgia’s branches. As Whit-more slowed his car to cross a speed bump on the driveway to the night depository, he noticed a blur in his rear-view mirror. A man armed with a gun then entered Whitmore’s car and ordered Whit-more to drive to a designated location. Once at that location, the gunman shot Whitmore twice and took his car and the deposit money. Subsequently, Whitmore and his wife filed a complaint against First Federal alleging that it negligently maintained its premises and failed to take reasonable precautions to protect Whitmore from reasonably foreseeable criminal acts of third persons. First Federal answered the complaint denying liability and later moved for summary judgment contending that the assailant’s conduct was an unforeseeable criminal act for which it could not be held liable. The trial court agreed and granted First Federal’s motion. Finding no error in the trial court’s ruling, we affirm.

1. In order for a plaintiff to prevail against a proprietor for injuries incurred as the result of a criminal act committed by a third party on the proprietor’s premises, a plaintiff must first show that the criminal act was reasonably foreseeable. Savannah College of Art &c. v. Roe, 261 Ga. 764, 765 (2) (409 SE2d 848) (1991); Lau’s Corp. v. Haskins, 261 Ga. 491, 492 (1) (405 SE2d 474) (1991). One way of demonstrating this is through the presentation of evidence of prior substantially similar crimes. Roe, 261 Ga. at 765. In this case, in response to First Federal’s motion for summary judgment, the Whitmores produced evidence of First Federal’s actual knowledge of one criminal act committed in its parking lot, as well as numerous police reports and printouts of criminal acts in the vicinity, in an effort to demonstrate the existence of prior substantially similar crimes. As the trial court concluded, however, none of the above created an issue of material fact in this case as to whether the attack on Whitmore was reasonably foreseeable.

A review of the record shows that the sole prior criminal act occurring on First Federal’s property clearly was not substantially similar to the attack on Whitmore. Specifically, the crime involved the theft of a bag of money from an unlocked, unattended car in First Federal’s parking lot. As such, it was a property crime and not a crime against a person. As we held in Matt v. Days Inns of America, 212 Ga. App. 792, 795 (443 SE2d 290) (1994), similarity must be examined with regard to the nature of the crimes in question, and offenses against property or public morals are not substantially similar in nature to offenses against a person. See Piggly Wiggly Southern v. Snowden, 219 Ga. App. 148, 149 (1) (464 SE2d 220) (1995). For this reason, any property crimes allegedly committed in nearby areas also cannot be viewed as prior substantially similar crimes.

With regard to the police reports and printouts, although it is true they demonstrate that certain crimes of violence occurred in the area surrounding the bank over a two year period, they do not demonstrate that First Federal had any knowledge concerning such crimes. As the Supreme Court of Georgia held in Sun Trust Banks v. Killebrew, 266 Ga. 109 (464 SE2d 207) (1995), “[t]here is no authority in this State imposing a duty upon a property owner to investigate police files to determine whether criminal activities have occurred on its premises [or elsewhere].” Absent such a duty or actual knowledge of the incidents, the reports and printouts do not create a material issue of fact regarding whether First Federal had reasonable grounds to foresee the criminal attack on Whitmore. Id. at 110.

The mere fact that one of First Federal’s vice presidents had some vague recollection of having read something about muggings in a nearby parking lot also does not create an issue of material fact as to the foreseeability of the attack in this case. Such vague, equivocal, unsubstantiated recollection, which itself was based on hearsay, does not amount to credible evidence of First Federal’s knowledge of prior substantially similar criminal acts. See Hall v. Cracker Barrel Old Country Store, 223 Ga. App. 88, 92 (476 SE2d 789) (1996). Nor does knowledge on the part of First Federal’s employees of incidents occurring in areas far removed from the vicinity of the bank, because such incidents, based on their lack of spatial proximity, are not representative of, and thus not substantially similar to, incidents that may occur at the bank.

2. Having determined that the Whitmores cannot demonstrate through the existence of prior substantially similar criminal acts that an issue of material fact exists regarding foreseeability on First Federal’s part as to the attack on Whitmore, we now turn to the Whitmores’ claim that such an issue of fact exists based on the general knowledge within the banking community that ATMs and night depositories are dangerous. As Justice Sears notes in her special concurrence in Killebrew, the dangers of ATMs are well known. 266 Ga. 109, 110. In the face of this well documented reality, it would be difficult to say that a criminal occurrence at an ATM, or, due to their similarity, a night depository, is unforeseeable as a matter of law. Such a conclusion clearly could only be reached by turning “foreseeability” into a legal term of art totally divorced from its everyday meaning and usage. Thus, based on the generally recognized danger associated with ATMs and night depositories, we conclude that there is an issue of material fact regarding foreseeability in this case. Having reached this conclusion, we nevertheless hold that summary judgment was appropriate.

In cases like this, a plaintiff must show that the proprietor had a duty to protect him, and the existence of that duty depends not just on foreseeability, but also on superior knowledge. See Days Inns of America v. Matt, 265 Ga. 235 (454 SE2d 507) (1995); Lau’s Corp., 261 Ga. 491. If a criminal act is not foreseeable, it logically follows that the proprietor does not have superior knowledge of the danger of its occurrence. But even if the criminal act is foreseeable, it does not necessarily follow that the proprietor has superior knowledge, since the danger may be equally apparent to the plaintiff.

In the instant case, criminal activity was foreseeable to First Federal because of the general dangers of criminal activity associated with ATMs and night depositories as acknowledged by the banking industry. But the well publicized danger of criminal activity associated with the use of such devices is equally apparent to members of the general public absent specific knowledge on the bank’s part leading to an awareness that a particular ATM or night depository is even more dangerous than it appears to members of the public based on their general knowledge. As with issues of foreseeability, such specific knowledge may be demonstrated through evidence of the knowledge of prior substantially similar criminal acts committed on or in the near vicinity of the property. In this case, however, the Whitmores have failed to demonstrate the existence of any such acts or any other evidence demonstrating that First Federal had specific (and thus superior) knowledge that the night depository in question was more dangerous than it appeared to the general public. This is especially true in light of Wayne Whitmore’s admission that he had used the night depository on several occasions, and thus was aware of the general surroundings in the area. Accordingly, we conclude the trial court did not err in granting summary judgment to First Federal.

Decided March 12,1997

Reconsideration denied March 28,1997

Harrison & Harrison, Anthony L. Harrison, Billy C. Mathis, Jr., for appellants.

Fendig, McLemore, Taylor, Whitworth & Durham, David T. Whitworth, Donna L. Crossland, for appellee.

Judgment affirmed.

Andrews, C. J., and Smith, J., concur.


text:
    A96A2250, A96A2251.
    SANTORA v. AMERICAN COMBUSTION, INC. et al.; and vice versa.
    (485 SE2d 34)
   Smith, Judge.

This appeal and cross-appeal involve the trial court’s sanctions against plaintiff Thomas Santora, which included the dismissal of his complaint with prejudice and an award of $75,000 in attorney fees against him personally pursuant to OCGA § 9-15-14 (b). The trial court found Santora abused discovery by concealing from defendant American Combustion a document important to the litigation. In Case No. A96A2250, Santora claims the trial court’s rulings show an abuse of its discretion. We disagree. In the cross-appeal, Case No. A96A2251, American Combustion contends the trial court erred by failing to award fees charged by paralegals and attorneys other than its lead counsel. We reverse the court’s ruling on this issue.

Santora, an attorney and former vice-president of American Combustion, sued American for breach of his employment contract and for defamation and sought damages in excess of $1 million. During the course of discovery, American served on Santora interrogatories and requests for production of documents. This discovery required Santora to produce, among other things, all documents relating to Santora’s employment with American and any communications between Santora and anyone else regarding his employment with American and his claims against American. Discovery progressed, culminating in a consolidated pretrial order stating that all discovery had been completed. Pursuant to the trial court’s order, the parties were required to exchange “privilege logs” identifying any documents a party had withheld from the other as attorney-client privileged or as work product. In early 1994, Santora’s counsel sent American’s attorney a letter stating no such documents had been withheld.

In late 1989 and early 1990, however, after his termination from American, Santora had sold some of his stock in the company to an investment firm. The partners in that firm became aware of Santora’s dispute with Aanerican and were concerned a suit against the company might reduce the value of their stock. As part of the stock sale transaction, the investment firm obtained from Santora a document that purports to completely release and discharge any claims Santora might have against American except an employment claim for a maximum of $250,000. The release agreement also includes a confidentiality provision. Santora did not produce this document in discovery, nor did he testify about its existence when asked about conversations with members of the investment firm.

In March 1994, the investment firm provided a copy of this release agreement to American pursuant to the company’s subpoena. A partner in the investment firm testified it had not provided American with the document at any earlier date. American filed its motion for sanctions, alleging Santora had concealed this relevant evidence. The trial court imposed the drastic sanction of dismissal with prejudice.

Case No. A96A2250

1. (a) Santora claims the evidence does not support the trial court’s finding, made after a hearing, that he wilfully concealed this highly relevant release agreement from American. He also contends he was not required to produce the document because American knew about it. A judgment right for any reason will be affirmed, and we conclude that the trial court was authorized to dismiss the complaint as a discovery sanction under OCGA § 9-11-37. We therefore need not address the trial court’s exercise of its inherent authority under OCGA § 15-1-3. See Orkin Exterminating Co. v. McIntosh, 215 Ga. App. 587, 590 (3) (452 SE2d 159) (1994).

In determining whether a party has abused discovery, the trial court sits as trier of fact, and this Court will uphold a finding of wilful discovery abuse if there is any eyidence to support it. Addington v. Anneewakee, Inc., 204 Ga. App. 521, 522 (420 SE2d 60) (1992). As the facts recited above indicate, the record supports the trial court’s finding that the release document was relevant to the issues and should have been produced in discovery regardless of whether the release was enforceable. Evidence showed that in September 1992, Santora’s attorney had a copy of this release agreement and received a letter from the investment firm’s attorneys stating the firm considered the confidentiality provision waived and was contemplating releasing the document to American Combustion. Given this evidence, the trial court was authorized to conclude that Santora consciously and intentionally failed to turn over this document relevant to American’s discovery requests. See Stolle v. State Farm Mut. Auto. Ins. Co., 206 Ga. App. 235, 236-237 (3) (424 SE2d 807) (1992). The trial court certainly did not err in rejecting Santora’s untimely claims of “privilege.” McIntosh, supra at 591 (3).

(b) Santora also contends the trial court had no authority to dismiss his complaint because he had violated no order compelling him to produce this document. See OCGA § 9-11-37 (b); Strejc v. MARTA, 197 Ga. App. 88, 89 (397 SE2d 501) (1990) (violation of order compelling production is prerequisite to sanction of dismissal). The trial court found Santora had violated its deadline order for completion of discovery. In light of Santora’s claim of privilege, the trial court determined Santora had also violated its orders requiring that privileged documents be identified to opposing counsel. We find as we did in McIntosh, supra at 590 (3), that Santora’s false and misleading discovery responses prevented American from compelling production of this document; therefore, “the requests and rulings on the part of counsel and the trial court [to ensure completion of discovery] accordingly will be construed as the equivalent of a motion to compel and order compelling discovery under OCGA § 9-11-37 (a).” Id.

“A very broad discretion is granted judges in applying sanctions against disobedient parties in order to assure compliance with the orders of the courts. By OCGA § 9-11-37 (b) (2) (C) the courts are specifically granted the discretion to dismiss complaints or to render default judgments against disobedient parties. . . . Historically it has been the policy of the Georgia appellate courts to refuse to interfere with a trial court’s exercise of its discretion in absence of abuse. This policy is applicable to a trial judge’s exercise of the broad discretionary powers authorized under the discovery provisions of the Civil Practice Act.” (Citations and punctuation omitted.) Sellers v. Nodvin, 207 Ga. App. 742, 744-745 (1) (429 SE2d 138) (1993). In this case, the trial court found Santora wilfully attempted to conceal from his opponent a document that, at least facially, could have had a major impact on this litigation. Under these circumstances, we cannot say the trial court erred by imposing the ultimate sanction of dismissal. See Schrembs v. Atlanta Classic Cars, 261 Ga. 182, 183 (402 SE2d 723) (1991) (dismissal upheld for wilful failure to answer discovery requests); Sellers, supra.

2. Santora also appeals the trial court’s award of $75,000 in legal fees and expenses against him personally, pursuant to the provisions of OCGA § 9-15-14 (b). That statute allows the trial court to assess reasonable and necessary legal fees and expenses when a party has brought a claim without substantial justification or has “unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery. . . .” In a vague argument, Santora contends the evidence does not support this award. We review the grant of attorney fees and expenses under OCGA § 9-15-14 (b) only for abuse of discretion. Haggard v. Bd. of Regents, 257 Ga. 524, 527 (4) (c) (360 SE2d 566) (1987). Based on the evidence before it, the trial court did not abuse its discretion by making this award. The court continued the hearing on attorney fees in order to allow American’s lead counsel to be deposed. The court awarded only those fees it determined were reasonable and necessarily related to this case, as supported by the testimony of American’s lead counsel. See Campbell v. Bausch, 195 Ga. App. 791, 792 (2) (b) (395 SE2d 267) (1990). American’s attorney introduced her detailed billing records, explained how she computed the amounts attributable to this unnecessary litigation, and was cross-examined by Santora’s counsel. The court reduced the fees sought based upon work being used in other litigation brought by Santora. The evidence supports the trial court’s award, and this enumeration therefore is without merit.

Case No. A96A2251

3. The trial court also reduced the fee award because some of the work in the billing statements was done not by lead counsel but by other attorneys and paralegals in her firm. In the cross-appeal, American claims the trial court erred by rejecting its claim for legal fees and expenses incurred by these other professionals.

It is well established that to recover attorney fees both their actual cost and their reasonableness must be shown. See, e.g., Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 402 (433 SE2d 606) (1993). Billing statements are often used to prove actual costs. Subject to the laying of an adequate foundation, these statements are admissible under the business record exception to the hearsay rule, OCGA § 24-3-14. See N. D. T., Inc. v. Connor, 196 Ga. App. 314, 316 (6) (395 SE2d 901) (1990). OCGA § 24-3-14 (c) provides that lack of personal knowledge by the maker of the records does not affect the records’ admissibility but affects only the weight to be accorded this evidence.

To show the reasonableness of the actual costs demonstrated by the billing records, parties will usually proffer the opinion testimony of their counsel or other attorneys. But such testimony is not an invariable requirement. Carpet Transport v. Kenneth Poley Interiors, 219 Ga. App. 556, 558 (2) (a) (466 SE2d 70) (1995). It is merely an effort to demonstrate what the expert witness considers a reasonable professional fee, in light of the particular litigation history of the case. First Bank of Clayton County v. Dollar, 159 Ga. App. 815, 817 (285 SE2d 203) (1981). As we noted in Oden v. Legacy Ford-Mercury, 222 Ga. App. 666, 668-669 (2) (476 SE2d 43) (1996), at a hearing held to determine the amount of attorney fees recoverable, “each attorney for whose service compensation is sought must provide admissible evidence of fees in the form of personal testimony, or through the testimony of. the custodian of the applicable billing records, as an exception to the hearsay exclusion. See OCGA § 24-3-1. The defendant has the right to cross-examine each witness on the amount and reasonableness of the fees and costs requested.” Id. at 669 (3). It is clear, however, that the witnesses need not be the attorneys or paralegals who performed the work.

Because our holdings in Mitcham v. Blalock, 214 Ga. App. 29, 32-33 (3) (447 SE2d 83) (1994), cited by the trial court, and Southern Co. v. Hamburg, 220 Ga. App. 834, 842-843 (5) (470 SE2d 467) (1996), appear to conflict with this rule, we take this opportunity to clarify those holdings. In neither of those cases does the opinion indicate that billings were tendered as evidence under the business records exception to the hearsay rule, and we cannot assume that such was the case. In Mitcham, we reversed the trial court’s award of attorney fees on the basis that “no admissible evidence supported] the trial court’s award” and “plaintiff was not provided opportunity to cross-examine the two attorneys and the paralegal who” did the work for which billing summaries were submitted. Id. at 33 (2). In Hamburg, billing summaries were introduced, but nothing in the opinion suggests that the records were properly introduced under OCGA § 24-3-1.

We note as well that in a number of cases in which this Court has held that the proof presented was inadequate to support a fee award, the circumstances are similarly distinguishable. In First Union Nat. Bank v. Davies-Elliott, Inc., 215 Ga. App. 498, 503 (1) (b) (452 SE2d 132) (1994), no billing records were introduced; the case was taken on a contingency basis, and the testifying lead counsel had no personal knowledge of the work done by other attorneys. In Oden, supra, no billing statements were introduced and no personal testimony was given. The only evidence introduced in support of attorney fees was the affidavit of lead counsel, which stated only that a certain number of hours of work had been performed by associates. No evidence was introduced showing that the affiant had personal knowledge of these hours. Our holding in Hercules Automotive v. Hayes, 194 Ga. App. 135,136-137 (4) (389 SE2d 571) (1989), was based upon a complete failure to introduce any evidence of reasonableness. In several other cases, billing statements were presented, but the statements represented work on more than one matter and the court could not discern which hours or how many hours were attributable to cases other than the one in which the fees were sought. Our holdings in those cases that the proof of attorney fees presented was insufficient are supportable on that ground: failure to separate and identify matters for which fees were recoverable in the cases in issue. See, e.g., Citadel Corp. v. All-South Subcontractors, 217 Ga. App. 736, 737-739 (1) (458 SE2d 711) (1995) (evidence presented failed to distinguish between recoverable and non-recoverable fees); Southern Cellular Telecom, supra at 402 (time sheets inadequately differentiated between matters). Compare Campbell v. Bausch, supra (billing statements admitted into evidence, and testimony sufficiently clarified which charges attributable to matter in issue).

Decided March 12,1997

Reconsideration denied March 28,1997

Dent Aeree, George G. Dean II, for appellant.

At the hearing on attorney fees in this case, American’s lead counsel introduced detailed billing records. She explained how she computed the amounts attributable to this litigation, separating out work done on this particular action brought by Santora from other suits he had filed. She was cross-examined at her deposition by Santora’s counsel. These statements were clearly admissible as business records. Moreover, although some of the work billed was that of associates and paralegals, lead counsel testified on her deposition that she supervised them and had personal knowledge of and was very familiar with the work they were doing. We hold that because the billing statements were admissible as business records, sufficient proof of the actual cost of the work performed by others in the firm was presented. The actual cost of the legal services was therefore proved.

Counsel’s opinion testimony as to reasonableness of the work done was also firmly grounded. Counsel was an experienced litigator and she was intimately familiar with this litigation. Because counsel’s testimony was competent to show the reasonableness of the billings, American met its burden of proof as to the attorney fees. The trial court erred in excluding that portion of the billings representing fees of the professionals supervised by American’s lead counsel.

Judgment affirmed in part and reversed in part.

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

Nelson, Mullins, Riley & Scarborough, Sylvia K. Koehler, John C. Amdbile, Edward C. Brewer III, for appellees.