text:
    A94A0843.
    JOHNSON v. THE STATE.
    (447 SE2d 663)
   Pope, Chief Judge.

Defendant appeals from his conviction of six counts of child molestation and four counts of aggravated child molestation.

Three young girls told their older sister and mother that defendant had fondled and licked their vaginal areas. J. G., the oldest of the three, said that this had occurred on numerous occasions, beginning at the end of her first grade year and continuing through at least Thanksgiving of her second grade year. E. G., the middle child, said it happened when she was five years old. N. G., the youngest, could not remember when it happened, but E. G. said defendant did these things to E. G. and N. G. at the same times. J. G. started second grade in late August 1990, and E. G. turned five in September 1990.

In his testimony, defendant admitted committing all the alleged acts, but stated that they occurred in the summer of 1989, before he was 17 years old. (Defendant was born August 8, 1973, and thus turned 17 on August 8, 1990.)

1. Defendant argues that the trial court erroneously charged the jury that it could find defendant guilty if it found he committed the alleged offenses “on or about the dates alleged in the indictment or after the seventeenth birthday of the defendant.” The underlined “or” should have been “and,” since the juvenile court would have exclusive jurisdiction over these offenses if they were committed by defendant before he was 17. See OCGA § 15-11-5. However, immediately before this problematic instruction, the trial court instructed the jury that the State had to prove defendant was at least 17 years of age at the time of the events alleged in each particular count, and that if the State failed to prove defendant was 17, it would be the jury’s duty to find defendant not guilty on that particular count. Moreover, immediately after the faulty instruction, the trial court instructed the jury that if it found defendant did not commit the act alleged in a particular count or did not commit it after his seventeenth birthday, it should find defendant not guilty as to that particular count. Thus, considering the jury charge as a whole, we conclude the trial court’s slip of the tongue could not have misled or confused the jury and is not reversible error. See Wade v. State, 197 Ga. App. 464 (1) (398 SE2d 728) (1990).

2. Defendant challenges the sufficiency of the evidence. As he admitted committing the alleged acts, the sole issue for determination by the jury was whether those acts occurred after defendant’s seventeenth birthday, August 8, 1990. J. G.’s statement indicates that defendant’s illegal course of conduct continued at least until Thanksgiving 1990, her second grade year, and E. G. states that the alleged acts occurred after her fifth birthday in September 1990. Viewing this evidence in a light to support the verdict, rational jurors certainly could have concluded that the acts occurred after August 8, 1990, and thus that defendant was guilty of the charged offenses beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. Citing OCGA § 15-11-5, defendant further contends that the superior court was without authority to try him because he was under 17 at the time the offenses were committed. As noted above, however, the jury in this case was instructed that defendant should only be found guilty if he committed the alleged acts after he turned 17. They found him guilty, and there was evidence to support this finding. Accordingly, defendant’s jurisdictional argument is also without merit.

4. In three enumerations of error, defendant argues that his custodial statement should not have been admitted into evidence.

(a) Defendant first suggests his statement was inadmissible because it was given in hope of a benefit offered by his interrogator. We disagree. Evidence at the Jackson-Denno hearing shows that defendant gave a statement to Special Agent Susan Kelly. Prior to that interview, defendant had given another statement to another officer who, under the mistaken impression that no charges were to be filed, told defendant that if he confessed, he would not have to go to jail but would just have to go to counseling. When defendant arrived at Kelly’s office for the interview, Kelly read him his Miranda rights. In addition to the standard rights, she also informed him that the statement he had previously given could not be used against him, but that anything he told her that day would be used against him. Contrary to defendant’s suggestion, this warning was not the offer of a quid pro quo; Agent Kelly was not proposing that the State would disregard the earlier statement if he gave another, but was simply letting defendant know, before he made a statement to her, that the previous statement was tainted and could not be used.

(b) Defendant further contends the statement was inadmissible because it talked about offenses committed by him when he was under 17 years of age. For the reasons discussed in Divisions 1, 2 and 3, this contention is without merit.

(c) However, defendant correctly points out that the trial court admitted the statement without making, with “ ‘unmistakable clarity,’ ” the necessary ruling that the statement was voluntary. See Walraven v. State, 250 Ga. 401, 407 (4a) (297 SE2d 278) (1982). Although a Jackson-Denno hearing was held and the State presented ample evidence of voluntariness, the parties then went on to discuss other issues without eliciting a determination of voluntariness from the court. It is therefore necessary to remand this case to allow the trial court to determine with unmistakable clarity whether defendant’s statement was voluntarily given. See Hicks v. State, 255 Ga. 503, 504 (1) (340 SE2d 604) (1986).

5. Lastly, defendant argues that the trial court erred in admitting pictures which he says represent unindicted offenses. The pictures in question were drawn by the two younger girls and reflect their sexual interaction with defendant. To the extent the pictures show unindicted offenses (defendant asserts they show actual intercourse, which was not charged), they were nonetheless admissible as part of the res gestae of the charged offenses. See Miller v. State, 197 Ga. App. 691 (2) (399 SE2d 281) (1990); Garrett v. State, 188 Ga. App. 176 (1) (372 SE2d 506) (1988); see also Uniform Superior Court Rule 31.3 (E). Furthermore, we note that admission of the pictures could not have been harmful because they had no bearing on the issue of the timing of the acts, which was the only question for the jury in the case.

This case is remanded for the reason stated in Division 4(c) but the judgment is otherwise affirmed.

Judgment affirmed and case remanded for further proceedings.

McMurray, P. J., Birdsong, P. J., Beasley, P. J., Andrews, J., and Senior Appellate Judge Harold R. Banke concur. Johnson, J., concurs in judgment only. Blackburn and Smith, JJ., concur in part and dissent in part.

Smith, Judge,

concurring in part and dissenting in part.

I respectfully dissent from Divisions 1 and 3 of the majority opinion. Even if we were to agree that the trial court’s slip of the tongue in substituting “or” for “and,” standing alone, would not constitute reversible error, under the circumstances here multiple errors in the charge bore on Johnson’s sole defense, and call for a reversal.

Where a defendant relies upon only one defense, failure to instruct the jury as to the evidence supporting this defense with sufficient clarity and specificity for the jury to intelligently pass upon it constitutes reversible error. Walden v. State, 196 Ga. App. 844, 845 (1) (397 SE2d 182) (1990). Johnson’s minority at the time of commission of the offenses alleged was his sole defense, and he was entitled to a full, complete and accurate charge in that regard. Id.

The indictment alleged that the offenses were committed during a time period beginning the day after Johnson’s seventeenth birthday, and the trial court charged that the jury should find beyond a reasonable doubt that the defendant committed the acts alleged “on or about the dates alleged in the indictment or after the 17th birthday of the defendant and prior to this indictment.” “On or about” means, inter alia, “approximately; about; without substantial variance from; near . . . generally in time around date specified.” Black’s Law Dictionary 1089 (6th ed. 1990). The jury could have erroneously concluded from this instruction that it was permissible to find Johnson guilty with respect to acts committed on some indefinite date “on or about” but preceding the dates of the indictment, and before Johnson’s seventeenth birthday. Specificity of proof as to the date of the offense is ordinarily not required, so long as it falls within the statute of limitation. Moore v. State, 207 Ga. App. 892, 894 (1) (429 SE2d 335) (1993). However, in this case the date alleged so closely coincided with Johnson’s seventeenth birthday that specificity was required in order to negate the exclusive jurisdiction of the juvenile court under OCGA § 15-11-5, Johnson’s sole defense. The errors in the charge therefore could have misled the jury as to this crucial issue.

Decided July 15, 1994

Reconsideration denied July 29, 1994

L. Clark Landrum, for appellant.

C. Paul Bowden, District Attorney, Gary C. McCorvey, Assistant District Attorney, for appellee.

Where an erroneous instruction is likely to mislead the jury on a material issue, the error cannot be cured by merely afterwards giving a correct instruction, leaving the jury to select one part of the charge in preference to another. The trial court should call the jury’s attention to the error before giving the correction. Bryant v. State, 191 Ga. 686, 719-720 (13) (13 SE2d 820) (1941); see also Boggus v. State, 136 Ga. App. 917, 920 (6) (222 SE2d 686) (1975).

Under these circumstances, the jury could have been misled by the errors in the charge, which were not corrected and which pertained directly to Johnson’s sole defense. I cannot find under the “highly probable” test of Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976), that the error in the charge did not contribute to the verdict. Booth v. State, 186 Ga. App. 342, 344 (2) (367 SE2d 77) (1988). Therefore, I would reverse with respect to Division 1.

I am authorized to state that Judge Blackburn joins in this opinion.

       Contrary to the dissent’s assertion, this was the only error in the charge at issue. On the other hand, the correct instruction — that the jury had to find the offenses were committed after defendant’s seventeenth birthday in order to find defendant guilty — was given multiple times.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A94A0845.
    STAHL HEADERS, INC. v. MacDONALD et al.
    (447 SE2d 320)
   Smith, Judge.

Stahl Headers, Inc. brought this action against a former employee, Donald L. MacDonald, and his new employer, VEI, Inc. Among other things, Stahl alleged that the defendants had converted trade secrets and processes that were the property of Stahl, that defendant MacDonald had violated a written non-disclosure agreement with Stahl, and that VEI and MacDonald tortiously interfered with that agreement. On the trial of the case, special interrogatories were submitted to the jury.

The jury found that MacDonald and VEI did not violate the Georgia Trade Secrets Act, OCGA § 10-1-760 et seq., and did not convert any “trade secrets” of Stahl to their own use. However, the jury found that MacDonald breached his contract with Stahl and that VEI intentionally interfered with the contractual relationship between MacDonald and Stahl. The jury declined to award punitive damages but awarded attorney fees to Stahl. The trial court granted defendants’ motion for a j.n.o.v., and Stahl appealed to the Supreme Court, which transferred the case to this court for disposition. See generally Pittman v. Harbin Clinic Professional Assn., 263 Ga. 66 (428 SE2d 328) (1993).

Initially, we note that defendants are mistaken in their contention that Stahl’s claims are entirely dependent on the existence of a “trade secret.” There was evidence in the record from which the jury could find that MacDonald, while employed at Stahl, executed a written non-disclosure agreement. The original and copies of the agreement were missing from MacDonald’s personnel file. MacDonald initially denied having signed the agreement, but he ultimately acknowledged and his counsel stipulated that he had done so.

The agreement provided that MacDonald would not disclose “any information designated as Confidential by the Company, or designated by the Company as Limited, Restricted, Private, or as a TRADE SECRET or not known to the General Public as recognized standard practice, whether acquired or developed by me in the course of my employment or obtained from other employees.” Georgia courts have long recognized that a valid non-disclosure agreement executed by an employee grants contractual rights over and above those provided by law under the Georgia Trade Secret Act or the common law. Avnet, Inc. v. Wyle Labs., 263 Ga. 615, 619 (2) (437 SE2d 302) (1993); Kem Mfg. Corp. v. Sant, 182 Ga. App. 135, 139 (3) (355 SE2d 437) (1987).

However, to be valid, a non-disclosure agreement must satisfy the requirements of reasonableness under Georgia law. “The tests used to determine the validity of a non-competition and a non-disclosure provision are not the same. ‘Unlike general non-competition provisions . . . specific nondisclosure clauses bear no relation to territorial limitations and their reasonableness turns on factors of time and the nature of the business interest sought to be protected.’ [Cit.] The two important factors are ‘(1) whether the employer is attempting to protect confidential information relating to the business, such as trade secrets, methods of operation, names of customers, personnel data, and so on — even though the information does not rise to the stature of a trade secret; and (2) whether the restraint is reasonably related to the protection of the information.’ [Cits.]” Kem Mfg. Corp. v. Sant, supra, 182 Ga. App. at 139 (3).

A non-disclosure agreement which contains no time limitation is unreasonable and unenforceable. U3S Corp. of America v. Parker, 202 Ga. App. 374, 378 (2) (b) (414 SE2d 513) (1991). The non-disclosure agreement executed by MacDonald contains no specific time limitation and expressly prohibits disclosure “during or subsequent to the term of . . . employment” without limitation. It is therefore unenforceable.

It follows that VEI cannot be held liable for tortious interference with an unenforceable contract. “In order for [Stahl] to recover for unlawful interference with [its] contractual relations with [MacDonald], there must have been an enforceable contract existing between the parties. As we have held the operating contracts to be unenforceable, it follows that there can be no recovery for any alleged interference with these contracts.” (Citations and punctuation omitted.) Shanco Intl., Ltd. v. Digital Controls, 169 Ga. App. 184, 186 (2) (312 SE2d 150) (1983). Finally, attorney fees and expenses of litigation are not recoverable unless other damages are recoverable. Trulove v. Woodmen of the World &c. Society, 204 Ga. App. 362, 366 (4) (419 SE2d 324) (1992). There was no valid and enforceable contract upon which the jury could rely in reaching its verdict, and the trial court did not err in granting defendants’ motion for j.n.o.v.

Judgment affirmed.

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

On Motion foe Reconsideration.

On motion for reconsideration, appellant contends that the issue of the nondisclosure agreement was never raised below, and that the “right for any reason” rule is not applicable to the grant of a directed verdict. Appellant correctly states the general rule forbidding appeal of the grant of a directed verdict on a ground not stated below, as established in Grabowski v. Radiology Assoc., 181 Ga. App. 298, 300 (2) (352 SE2d 185) (1986). However, that decision itself states an exception based on Green v. Knight, 153 Ga. App. 183 (1) (264 SE2d 657) (1980), and clarified in Justus v. Justus, 198 Ga. App. 533, 535-536 (402 SE2d 126) (1991). Where a general ground for directed verdict is stated, even if the trial court grants the directed verdict on another, specific ground, the “right for any reason” rule remains applicable. Id. This is particularly true where the plaintiff cannot cure the defect in its case by reopening the evidence. Grabowski, 181 Ga. App. 300 at n. 1.

Decided July 1, 1994

Reconsideration denied July 29, 1994

Chesnut & Livingston, Tom Pye, for appellant.

Hunter J. Hamilton, for appellees.

Here the trial court granted a general j.n.o.v., rather than one based on any specific ground raised by defendants’ motion. The motion for directed verdict was extensively discussed by the parties and the court at the close of plaintiff’s evidence, upon renewal, and on motion for j.n.o.v. and for new trial. Appellees’ contention that there was no breach of contract was raised repeatedly. Under the exception established in Grabowski, the lack of an enforceable contract is included within the general grounds of “no breach,” just as the lack of evidence of cause-in-fact was included in the general grounds of “no negligence” under Grabowski and Green. See Justus at 535. Moreover, there was no dispute as to the contents of the contract, and its provisions could not be changed or cured by reopening plaintiff’s case. The trial court’s grant of a j.n.o.v. was correct on the basis of lack of an enforceable contract.

Motion for reconsideration denied.


author: Smith, Judge. McMurray, Presiding Judge,

text:
    A94A0857, A94A0858.
    KING v. BOARD OF EDUCATION OF THE CITY OF BUFORD; and vice versa.
    (447 SE2d 657)
   Smith, Judge.

Appellant Joyce King sought a writ of mandamus to compel the Board of Education of the City of Buford (“the Board”) to “retain and renew” her contract “in her capacity as Band Director until such time as it has complied with the law by serving the notice and conducting the hearing as set forth in OCGA §§ 20-2-942 & [20-2-]940.” The superior court denied the writ “on the merits,” finding that “the position of ‘band director’ is not encompassed within the procedural safeguards of the Georgia Fair Dismissal Law.” OCGA § 20-2-940 et seq. King appealed to the Supreme Court pursuant to Ga. Const. 1983, Art. VI, Sec. VI, Par. III and OCGA § 9-6-20. The local board filed a cross-appeal enumerating the denial of its oral motion to dismiss. The Supreme Court transferred the cases to this court for disposition.

Case No. A94A0858

1. “[T]he transfer of the appeai[s] to this court by the Supreme Court is tantamount to a ruling eliminating and resolving the [issues involving the legality or propriety of mandamus] which lie only within the jurisdiction of that court to determine. [Cits.]” Swicegood v. Heardmont Nursing Home, 183 Ga. App. 319 (359 SE2d 3) (1987). We therefore assume that there is no substantive issue here whether a writ of mandamus was the legal or proper relief to be sought in the superior court, as opposed to an administrative remedy, a writ of cer-tiorari, declaratory relief, or some other remedy at law. See Beauchamp v. Knight, 261 Ga. 608, 609 (409 SE2d 208) (1991). Therefore we do not consider procedural matters militating against mandamus relief in particular, such as whether King brought this action for reinstatement prematurely, whether she should have first exhausted her administrative remedies, or whether mandamus is a “personal” action that cannot properly be pursued against the Board as a legal entity. Consequently, the issues raised in appellee’s cross-appeal are deemed to be without merit.

Case No. A94A0857

2. Once it is accepted that other potential issues were resolved or eliminated upon transfer from the Supreme Court, we find that this case turns on the proper interpretation of the Georgia Fair Dismissal Law. OCGA § 20-2-940 et seq. Cf. Community Newspapers v. Baker, 198 Ga. App. 680 (402 SE2d 545) (1991) (interpreting OCGA § 9-13-142). These provisions “[set] forth the notice and hearing procedures for termination, suspension or demotion of teachers, principals and other employees having contracts for a definite term.” Rockdale County School District v. Weil, 245 Ga. 730, 732 (2) (266 SE2d 919) (1980). King essentially contends that the Board’s decision not to reassign her as the school’s “band director” after having assigned those duties to her for the previous four years is a “demotion” within the meaning of the Fair Dismissal Law. We are constrained to disagree.

A “demotion” occurs within the meaning of the Fair Dismissal Law when a teacher or other school employee is effectively moved “from one position in the school system to another position in the school system having less responsibility, prestige, and salary.” OCGA § 20-2-943 (a) (2) (C); Weil, supra. There is no question that King is being deprived of certain responsibilities and supplementary salary as a result of her loss of “band director” duties. Moreover, we have little difficulty in accepting as true that classroom teachers who are also band directors place a significantly higher value on that status than they do on their underlying status as classroom teachers generally. Nevertheless, it does not follow that King has experienced a demotion from one position in the school system to another under OCGA § 20-2-943 (a) (2) (C).

In support of its position, the Board offered the testimony of Judy Wolovick, program director for the Professional Standards Commission of the State of Georgia (“the Commission”). It is Wolovick’s responsibility to govern and oversee the certification procedures for secondary school teachers seeking certification in Georgia. Her undisputed testimony reveals that the position of “band director” is not recognized as a “certifiable” position by the Commission. It therefore follows that “band director” is likewise not a cognizable “position” under the Georgia Fair Dismissal Law.

King wishes to establish a property right in her status as “band director” notwithstanding the fact that it is not a recognized position. Her desire to do so is understandable; she wishes to continue teaching subject matter that is neither confined strictly to the classroom nor to regular school hours. However, the General Assembly has established the Professional Standards Commission as the proper authority to “designate and define the various classifications of professional personnel employed in the public schools of this state. . . .” OCGA § 20-2-200 (a). See also OCGA § 20-2-989.1. That body has declined to establish the position of “band director” as a cognizable tenured position. This is a matter within the Commission’s lawful discretion. It therefore follows that, in the absence of clear authority to the contrary, the position of “band director” is not in itself a distinct “position” affording King the procedural protections of the Fair Dismissal Law.

King’s position appears to be that, over time, a teacher may attain property rights in any extracurricular undertaking he or she is allowed to pursue if additional compensation is received as a result. Moreover, she appears to contend that such undertakings do not merely enhance the teacher’s primary, tenured position; rather, they elevate him or her to a new and distinct tenured “position” within the meaning of OCGA § 20-2-943 (a) (2) (C).

We find no support for this contention, and the Board has certainly not encouraged such an expectation. In the contracts immediately preceding the contract year in question, King signed an addendum containing the following language: “In addition to the regular duties of your official contract, you have been appointed for the school year [specified] to the listed position(s) in the Buford City School System, for which you will receive a supplemental salary allotment. Your duties will be assigned by your principal or immediate supervisor. This agreement is not automatically renewable as these assignments are made by the principal/supervisor each school year.”

We find nothing unenforceable in the Board’s retention of discretion from school year to school year in personnel matters involving extra duty positions such as band director. King was therefore not entitled as a matter of right to retain her “band director” status until such time as the Board held a hearing under OCGA § 20-2-942 (b) — a hearing to which she was likewise not entitled.

The trial court correctly held that the Fair Dismissal Law does not apply to the loss complained of in this case, and therefore the court properly denied King’s petition for mandamus.

Judgments affirmed.

Birdsong, P. J., Beasley, P. J., Andrews and Johnson, JJ., concur. Pope, C. J., McMurray, P. J., Blackburn, J., and Senior Appellate Judge Harold R. Banke dissent.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent to the judgment of affirmance as it is my view that the superior court erred in entertaining this petition for mandamus on the ostensible merits of the plaintiff school teacher’s claim. Rather, I believe the controversy should be analyzed in terms of procedure. It is my view that, the superior court should have exercised its extraordinary authority and compelled the Board of Education to hold, in the first instance, the hearing plaintiff demanded, thereby setting into motion the administrative procedures established by the General Assembly for the benefit of tenured teachers. Accordingly, I would reverse the judgment of the superior court and remand with direction that mandamus issue, directing the Board to provide the procedure contemplated by statute, OCGA § 20-2-940 et seq. I express no opinion on whether plaintiff should prevail before the Board and believe the superior court should have expressed none. I submit only that plaintiff is entitled to procedural relief and the superior court erred in failing to grant mandamus to afford that relief. As my view differs from that of the majority, I respectfully dissent.

Plaintiff Joyce King petitioned the Gwinnett County Superior Court for injunctive relief and a writ of mandamus directed to defendant, the Board of Education of the City of Buford (“the Board”), alleging that she had been improperly demoted within the meaning of OCGA § 20-2-942, when the Board extended to her a renewed teaching contract but took away her responsibilities as the band director. Plaintiff demanded that the Board be compelled to retain her “in her capacity as Band Director until such time as [the Board] has complied with the law by serving notice and conducting the hearing as set forth in OCGA §§ 20-2-942 & [20-2-]940.” A temporary restraining order was denied after a hearing, and further proceedings were scheduled. The Board answered, admitting that plaintiff is a certificated professional school employee who has accepted annual contracts for four consecutive years, but opposing the relief sought and averring that the petition failed to state a claim for relief because it seeks to enjoin the “assignment of supplemental or extra duty assignments which are too far removed from the primary teaching responsibilities of the plaintiff[.]”

The material facts adduced in support of and in opposition to plaintiff’s application for a writ of mandamus are undisputed. Plaintiff received written notification that the Board would extend to her an offer of continued employment as a “classroom teacher” but would not reassign to her the duties of band director, which plaintiff had performed for the previous four years. She made a written demand for a hearing at which to contest this proposed adverse action. When plaintiff presented that demand to the attorney for the Board, the attorney informed her (apparently orally) that she was not entitled to a hearing. In addition to the admitted fact that she was a certificated music teacher who had accepted at least four consécutive annual contracts from a school within the Board’s system, plaintiff presented un-refuted testimony that she would receive $5,000 less in annual salary, have fewer classes to teach and fewer responsibilities, and would suffer a loss of prestige. In response, the Board adduced the unrefuted testimony of Ms. Judy Wolovick, the Program Manager for the Professional Standards Commission of the State of Georgia. It is Ms. Wolovick’s responsibility to govern and oversee the certification guidelines and procedures for secondary school teachers seeking certification in Georgia. According to her, the position of band director, like that of language arts teacher, “is not a certifiable position under the Georgia Professional Standards Commission.” The written contracts between plaintiff and the Board show that, whereas plaintiff was expressly assigned the duties of “band director” in her first two contracts, in all subsequent years, her assigned duties were “classroom teacher.” All contracts referred to a salary supplement for “Extra Curricula.” However, in the last two contracts, plaintiff’s supplement for her duties as the band director was itemized in an addendum which contained the following language: “In addition to the regular duties of your official contract, you have been appointed for the school year [specified] to the listed position(s) in the Buford City School System, for which you will receive a supplemental annual salary allotment. Your duties will be assigned by your principal or immediate supervisor. This agreement is not automatically renewable as these assignments are made by the principal/supervisor each school year.” (Emphasis in original.)

The trial court denied the writ of mandamus “on the merits,” concluding that “the position of ‘Band Director’ is not encompassed within the procedural safeguards of the Georgia Fair Dismissal Law, (OCGA § 20-2-940 et seq.).” Plaintiff filed a direct appeal in the Supreme Court of Georgia and the Board filed a cross-appeal. By order, the Supreme Court transferred these cases to the Court of Appeals. In Case No. A94A0857, plaintiff appeals from the order of the superior court denying her application for a writ of mandamus, and in Case No. A94A0858, the Board cross-appeals from the ruling of the superior court denying the Board’s oral motion to dismiss.

Case No. A94A0857

1. Plaintiff enumerates the denial of her petition for a writ of mandamus, contending that she has a legal right to notice and a hearing, before the Board is authorized to demote her by taking away her responsibilities as the band director. The Board contends that the trial court correctly determined that plaintiff has no such legal right to prior notice and a hearing because she has been renewed at her basic “classroom teacher” responsibilities and so has not been demoted, even though her former position, emoluments, and duties of band director have been reassigned to another employee.

OCGA § 20-2-940 et seq., “sets forth the notice and hearing procedures for termination, suspension or demotion of teachers, principals and other employees having contracts for a definite term.” Rockdale County School District v. Weil, 245 Ga. 730, 732 (2) (266 SE2d 919). Pursuant to OCGA § 20-2-943 (a) (2) (C), a demotion occurs when a teacher or other school employee is assigned “to another position in the school system having less responsibilities, prestige, and salary.” “The statute is clear that all three features must be affected — responsibility, prestige and salary — [before] a transfer [is] to be considered a demotion.” Rockdale County School District v. Weil, 245 Ga. 730, 732 (2), supra. “The controversy between these parties is whether the action taken by the . . . Board constitutes a demotion as contended by [plaintiff], or a [mere renewal of her basic instructional duties akin to a] reassignment as contended by [the Board]. If a demotion, the due process requirements of Code Ann. § 32-2103c [now OCGA § 20-2-942 (b)] apply. If a reassignment they do not apply. Code Ann. § 32-2104c [now OCGA § 20-2-943 (b)].” Emerson v. Bi ble, 247 Ga. 633, 634 (278 SE2d 382). Plaintiff’s evidence in the case sub judice made out a prima facie case of demotion, in that she will be assigned to a position “having less responsibility, prestige, and salary.” OCGA § 20-2-943 (a) (2) (C).

“Local boards of education constitute tribunals for hearing matters of local controversy with right of appeal to the State Board of Education. Code Ann. § 32-910 [now OCGA § 20-2-1160]. This is such a controversy.” Emerson v. Bible, 247 Ga. 633, 634, supra. Mandamus is available to compel a school board to give notice and hold, in the first instance, the hearing prescribed by OCGA § 20-2-942 (b). See Bd. of Ed. of Richmond County v. Young, 187 Ga. 644, 647 (5) (1 SE2d 739). “This being a matter of local controversy in reference to the administration of school law the local board is the proper tribunal. [Plaintiff] is entitled under Code Ann. § 32-910 [now OCGA § 20-2-1160] to be heard. If the board determines after a proper hearing that this [renewal] is a [mere] re-assignment, [plaintiff] will not be entitled to the rights afforded under Code Ann. § 32-2103c [now OCGA § 20-2-942 (b)]. If the board determines after a proper hearing that the transfer is a demotion, [plaintiff] is to be afforded those rights. Rockdale County School District v. Weil, 245 Ga. 730[, supra].” Emerson v. Bible, 247 Ga. 633, 634-635, supra. Under this controlling precedent, the local board may not act unilaterally with respect to a tenured teacher who demands a hearing. The local board must give notice of a proposed reassignment or other intended action, even if the Board contends that the reassignment is not a demotion, in the form prescribed by OCGA § 20-2-942 (b) (2). If that proposed reassignment is controverted in a timely demand for the hearing prescribed by OCGA § 20-2-940 (e), the Board must hold that hearing and exercise its judgment that a disputed assignment is or is not a demotion. Emerson v. Bible, 247 Ga. 633, 634, supra. This determination need not be in writing unless so requested by the employee for purposes of appeal pursuant to OCGA § 20-2-940 (f). See Owen v. Long County Bd. of Ed., 245 Ga. 647 (1), 648 (266 SE2d 461). Since the plaintiff in the case sub judice is a tenured teacher, she is entitled to demand a hearing and obtain an appealable determination whether the action intended by the Board is in truth a demotion rather than a reassignment. Consequently, it is my view that the superior court erred in denying plaintiff’s petition for a writ of mandamus. The judgment of the superior court should be reversed and remanded with direction that mandamus issue, directing the Board to hold the hearing demanded by the plaintiff and to exercise its judgment as to the issue presented. See, e.g., Elbert County Bd. of Ed. v. Shankle, 205 Ga. App. 113, 115 (421 SE2d 536). I would not agree that the use of mandamus to accord that procedural relief which the Board has no discretion to deny will result in a flood of litigation whereby the superior court reviews every decision made by local school boards. On the contrary, it would be precedent whereby the superior court abjures jurisdiction in deference to the administrative procedures created by the General Assembly. As the affirmance of the judgment in the case sub judice will deny the tenured teacher the hearing to which she is entitled, I respectfully dissent.

Decided July 15, 1994

Reconsideration denied July 29, 1994

Kennedy R. Packer, for appellant.

Chandler & Britt, Walter M. Britt, Gregory D. Jay, for appellee.

Case No. A94A0858

2. In its cross-appeal, the Board contends that the trial court erred in failing to grant its oral motion to dismiss this petition for mandamus, arguing that plaintiff has failed to exhaust her administrative remedies. “[M]andamus will not lie where it appears that the complainant has not availed himself of the administrative remedies available under OCGA § 20-2-1160 [formerly] (Code Ann. § 32-910). Surrency v. Dubberly, 225 Ga. 735 (171 SE2d 306) (1969).” Lansford v. Cook, 252 Ga. 414, 415 (314 SE2d 103). However, “[w]here the remedy is inadequate, exhaustion is not required, Hilton Construction Co. v. Rockdale Board of Education, 245 Ga. 533, 539 (266 SE2d 157) (1980), and [a complainant is] entitled to bring an action for mandamus before the Superior Court without exhausting administrative remedies.” Glynn County Bd. of Ed. v. Lane, 261 Ga. 544, 545 (1), 546 (407 SE2d 754). As the Board refused to hold the hearing to which plaintiff is statutorily entitled, it would have been futile to attempt to appeal that refusal to the State Board of Education. Pursuant to OCGA § 20-2-1160 (e), appeals to the State Board of Education are “confined to the record.” This presupposes that an appellant has been afforded the very process unilaterally denied plaintiff by the Board’s refusal to hold the hearing she demanded. Plaintiff’s failure in the case sub judice to exhaust futile administrative remedies is not a bar to a direct proceeding for mandamus. I would hold that the superior court correctly refused to dismiss the petition on this ground.

I am authorized to state that Chief Judge Pope, Judge Blackburn, and Senior Appellate Judge Harold R. Banke join in this dissent.

        Beauchamp appears to rely, at least in part, on the traditional distinction between law and equity. However, that rationale is inapplicable to mandamus cases, since “the writ of mandamus is a common law writ, with which equity has nothing to do.” (Emphasis omitted.) Gay v. Gilmore, 76 Ga. 726, 726 (1) (1886).

       Other than band director, the addendum lists 25 other potential extra duty assignments, including “fine arts director,” “psychologist,” “counselor,” “head football,” “assistant football,” “golf,” “cheerleader sponsor,” “debate,” etc.


text:
    A94A0897.
    CITIZENS BANK & TRUST COMPANY v. SAUNDERS, STUCKEY & MULLIS, INC. et al.
    (447 SE2d 632)
   Smith, Judge.

Citizens Bank & Trust Company (Citizens) brought suit against Saunders, Stuckey and Mullís, Inc. (SSM), an independent insurance agency, and Horace Mullís, SSM’s president and employee agent, seeking damages for Mullis’s alleged negligence, breach of fiduciary duty, and fraud in representing to Citizens that certain insurance coverage had been procured when, in fact, it had not. After denying SSM’s first two motions for summary judgment, the trial court granted SSM’s and Mullis’s third such motion on the ground that Citizens had previously obtained a full satisfaction of the same loss from another, thereby barring this action against SSM and Mullís. OCGA § 9-2-4. The sole question presented in this appeal by Citizens is whether the single satisfaction doctrine, derived from OCGA § 9-2-4, was properly applied in this complex fact situation.

The record reveals that in 1987, Citizens acquired Williams Banking Company in Rhine, Georgia, by merger. Mullís was a director of Citizens, as well as its long-standing insurance agent who procured much of its insurance. Before the merger, Mullís had recommended and procured a financial fidelity bond issued by St. Paul Fire & Marine Insurance Company that included coverage for losses discovered during the period the bond was in effect, regardless of when the losses occurred. When Mullís became aware that the merger would take place, he advised Jim Williams, Citizens’ president, that the bond would not cover a newly acquired bank and new coverage should be obtained. Williams requested Mullís to procure such coverage to be effective on the date of merger. Williams testified he asked Mullís to obtain coverage for the Williams Bank’s prior acts identical to that already covering Citizens. Just prior to the merger, Williams asked Mullís if the coverage had been obtained, and Mullís indicated that he had bound the coverage. Citizens then proceeded with* the merger. Williams testified that acting on Mullis’s advice, Citizens did not elect to continue Williams Banking Company’s previous coverage for prior acts.

In the spring of 1988, First Union National Bank of Florida notified Citizens of a claim for losses sustained by First Union’s predecessor, Atlantic Bank, prior to the merger date. Atlantic’s loss was caused by the misconduct of Talmadge Stuckey, a depositor at both Atlantic and Williams Banking Company, with the cooperation of Williams Banking Company employee Raiford Lynn Brown. Stuckey had a number of business accounts in the two banks. He and Brown engaged in a check kiting scheme whereby worthless checks drawn on one bank would be deposited into the Stuckey accounts at the other bank and credit would be issued immediately by the depository bank against the deposits. In this fashion, worthless checks were exchanged continuously between the two banks to create the illusion of positive balances and avert overdrafts in each bank through the deposit of worthless checks drawn on the other bank.

The scheme ended suddenly when Brown returned to Atlantic two checks totaling $710,000 because of insufficient funds in the Stuckey account at the Williams Banking Company. The victim, Atlantic, having credited the Stuckey accounts at its bank with that amount upon deposit of the checks, suffered the loss. Stuckey and Brown both pled guilty to wire fraud. Stuckey agreed to make restitution to First Union. Subsequently, First Union brought a damage suit against Stuckey and his wife and a Stuckey business corporation to recover for that loss and others. Stuckey entered into a settlement agreement with First Union, and a consent judgment was entered for $605,460.02.

Citizens notified St. Paul and Mullís of the potential claim by letter dated May 9, 1988. Citizens later learned that Mullís had not procured insurance coverage for claims resulting from the acts of Williams Banking Company before the merger, and St. Paul refused to defend or cover Citizens for the claim.

First Union then brought suit against Citizens and Brown. Citizens settled that lawsuit by paying $460,000 to First Union in return for the complete release of all claims. Citizens also took assignment and quitclaim of First Union’s consent judgment against Stuckey and his wife and companies. Citizens then negotiated with Stuckey to make financial arrangements to satisfy that judgment, obtaining promissory notes from Stuckey and his brother-in-law, Dr. Gregory Jones. On June 10, 1989, Citizens filed a “Satisfaction of Judgment” in the official court records. That document recites that “whereas, Talmadge Stuckey and Gregory Jones have made satisfactory financial arrangements with Citizens ... in order to fully satisfy the aforementioned Judgment held by First Union . . . and assigned to Citizens . . . , Citizens . . . hereby acknowledges full payment and satisfaction of said Judgment and hereby consents that the same may be canceled and discharged of record.”

The trial court granted SSM’s and Mullis’s motion for summary judgment on the ground that because Citizens had acknowledged full satisfaction of its loss when it filed the “Satisfaction of Judgment,” the doctrine of single satisfaction prevented it from seeking another recovery for the same loss from Mullís. Citizens contends this ruling was in error. We agree and reverse.

OCGA § 9-2-4 provides simply that “[a] plaintiff may pursue any number of consistent or inconsistent remedies against the same person or different persons until he shall obtain a satisfaction from some of them.” The doctrine of single satisfaction stems from the public policy of preventing double recovery. Although several persons or entities may contribute to an injury, there may be only one recovery for that injury. If the plaintiff’s damages for that injury are paid in full by one person or entity, the injured party may not seek a double recovery by bringing suit against another person or entity for the same injury. Gilmore v. Fulton-DeKalb Hosp. Auth., 132 Ga. App. 879, 881-882 (209 SE2d.676) (1974).

Although the document filed in court is captioned “Satisfaction of Judgment,” it is undisputed that the judgment was not paid in full. The document itself is somewhat contradictory, showing both that Stuckey and Jones “have made satisfactory financial arrangements” to pay the judgment and that Citizens “acknowledges full payment and satisfaction.” However, the record shows without dispute that as of August 15, 1993, after Citizens filed this suit against SSM and Mullis, the balance still outstanding on the judgment was $411,127.14. If the “arrangements” were the satisfaction, it was not because the entire sum was paid but because an accord and satisfaction had been reached. It is undisputed that performance under the “arrangements” — payment according to the terms of the notes — was not yet complete. Insofar as payment of Citizens’s loss is concerned, the accord therefore was still executory. An executory accord is not complete until the performance required under the accord is done. All-Georgia Dev. v. Kadis, 178 Ga. App. 37, 39 (3) (a) (341 SE2d 885) (1986).

Even assuming the “Satisfaction of Judgment” constitutes actual satisfaction, what was acknowledged by Citizens was satisfaction of a judgment based on a contract claim possessed by First Union against Stuckey. That claim, as evidenced by First Union’s complaint underlying the consent judgment, was brought on account to recover losses sustained by First Union for returned checks and other unpaid debts, and sounded in contract. Citizens suffered no such losses. The fact that First Union assigned its judgment to Citizens did not change the nature of that claim. Its claim against Stuckey, as well as its claim against SSM and Mullís, sounds in tort. It seeks recovery for the loss resulting from Stuckey’s tortious conduct in the check kiting scheme and Mullis’s alleged negligence or fraud in failing to obtain proper insurance coverage for those misdeeds and alleged misrepresentation that he had done so. Citizens has obtained no satisfaction of that claim. Its claim against SSM and Mullís therefore is not barred by the single satisfaction doctrine.

In Peoples Bank of LaGrange v. Ga. Bank &c. Co., 126 Ga. App. 768, 771-772 (1) (191 SE2d 876) (1972), summary judgment was sought and granted based on the doctrine of single satisfaction because the injured party had recovered the same loss under a bond. This court reversed, holding that doctrine inapplicable because the prior recovery was contractual whereas the action at bar involved a tort claim. Peoples Bank and this principle were cited with approval by the Supreme Court in the recent case of Amalgamated Transit Union v. Roberts, 263 Ga. 405, 409 (2) (434 SE2d 450) (1993), dealing with the application of the collateral source rule.

Since Citizens is not attempting to recover twice in the same cause of action for the same loss, Overstreet v. Ga. Farm Bureau Mut. Ins. Co., 182 Ga. App. 415 (355 SE2d 744) (1987) (physical precedent only) and Nannis Terpening & Assoc. v. Mark Smith Constr. Co., 171 Ga. App. 111 (318 SE2d 89) (1984), relied upon by SSM and Mullis, are distinguishable. Because the doctrine of single satisfaction has no application to these facts, the trial court erred in granting summary judgment in favor of SSM and Mullis.

Judgment reversed.

Pope, C. J., concurs. McMurray, P. J., concurs specially.

McMurray, Presiding Judge,

concurring specially.

I agree that the complete grant of summary judgment cannot be sustained by the present posture of the record. However, as my analysis differs from the majority, I must concur specially.

An insurance broker who negligently fails to obtain coverage specified by the insured “could be found liable ‘for any resulting loss. (Cit.)’ Wright Body Works v. Columbus Interstate Ins. Agency, [233 Ga. 268, 270 (210 SE2d 801)]. This means that [Citizens Bank & Trust Company] could recover for the resulting uninsured ‘loss or damage to the limit of the agreed policy. (Cits.)’ Beiter v. Decatur Fed. S&L Assn., 222 Ga. 516, 518 (2) (150 SE2d 687) (1966).” England v. Ga.-Fla. Co., 198 Ga. App. 704, 705 (2) (402 SE2d 783). In the case sub judice, the complaint alleged Citizens Bank & Trust Company (“Citizens”) has been “damaged in the amount it was required to expend to defend and settle the First Union suit[,]” as a result of the failure of Horace Mullis and Saunders, Stuckey & Mullis, Inc. (“SSM”) to obtain for Citizens a fidelity bond covering the premerger misconduct of Williams Banking Company employees. The settlement by which Citizens paid First Union $460,000 for the alleged wrongful acts of Williams Banking Company committed before the merger of Citizens and Williams Banking Company resulted in an assignment to Citizens of First Union’s consent judgment against Talmadge Stuckey. Citizens then pursued the consent judgment to satisfaction via receipt of $360,000 (financed by a loan from Citizens to Stuckey’s brother-in-law) and $100,000 (financed by Citizens via a loan evidenced by Stuckey’s promissory note). James R. Williams, President of Citizens, affirmed that the loan proceeds in these amounts were credited by Citizens to the debt represented by the judgment against Stuckey, so that “through the [loans to Stuckey and his brother-in-law, Citizens] paid off what [it] had paid to First Union. . . .” Citizens subsequently executed and filed in the Circuit Court of Duval County, Florida, a document entitled, “SATISFACTION OF JUDGMENT,” and providing (in pertinent part) as follows: “WHEREAS, Talmadge Stuckey and Gregory Jones have made satisfactory financial arrangements with CITIZENS BANK AND TRUST COMPANY in order to fully satisfy the aforementioned judgment held by First Union National Bank of Florida and assigned to CITIZENS BANK AND TRUST COMPANY, . . . CITIZENS BANK AND TRUST COMPANY hereby acknowledges full payment and satisfaction of said Judgment and hereby consents that the same may be canceled and discharged of record.” This instrument appears to be executed under seal, in that “the intention to execute a sealed instrument [is] indicated in the body of the [‘SATISFACTION OF JUDGMENT’] as well as after the signature. Barnes v. Walker, 115 Ga. 108 (41 SE 243).” Johnson v. Intl. Agricultural Corp., 41 Ga. App. 740 (1) (154 SE 465). The majority concludes that this satisfaction is not conclusive as to whether Citizens has been reimbursed for the $460,000 it paid to settle the First Union suit because the loans by which the judgment debt was refinanced have not yet been repaid and because any accord and satisfaction remains executory.

It is my view that the recording of this satisfaction in the court where the judgment was rendered amounts to a solemn admission in judicio that Citizens has been paid in full as to that item of recoverable uninsured loss, the $460,000 expended to settle the First Union suit. Consequently, Citizens is estopped to deny otherwise and evidence to the contrary is inadmissible. See generally Jabaley v. Jabaley, 208 Ga. App. 179 (1) (430 SE2d 119). I believe the majority strays from the relevant inquiry in going behind the recital of the “SATISFACTION OF JUDGMENT” where “[Citizens acknowledged] full payment and satisfaction of said Judgment . . .” to consider evidence that Stuckey’s debt as refinanced with his brother-in-law as additional surety has not been repaid. The specialty of the seal raises a strong presumption in favor of the consideration recited. See Warthen v. Moore, 258 Ga. 198, 199 (366 SE2d 666); Van Dyke v. Van Dyke, 123 Ga. 686, 690 (51 SE 582). Moreover, since Citizens has received from these transactions the $460,000 it paid to settle the First Union suit and not some lesser amount in compromise, I question whether any accord remains executory under the authority of All-Georgia Dev. v. Kadis, 178 Ga. App. 37, 39 (3a) (341 SE2d 885). It is my view that Citizens has been made whole for the $460,000 uninsured loss sustained as a result of any failure by SSM and Mullis. “ ‘Whether such damages as are here sued for arise by reason of a tort or the breach of a contract, they are given to the injured party as compensation for the injury sustained. (Cits.) An injured party can not be placed in a better position than he would have been in if the contract had not been breached. (Cits.)’ Lastinger v. City of Adel, 69 Ga. App. 535, 536 (26 SE2d 158) (1943).” England v. Ga.-Fla. Co., 198 Ga. App. 704, 705 (2), 706, supra. Accordingly, it is my view that a grant of partial summary judgment as to the $460,000 would have been correct for the reason given by the trial court. However, defendants’ motion does not establish the non-existence of every material fact as to other items of allegedly recoverable damage, i.e., the expenses of litigation which would have been borne by the insurer had Mullis and SSM obtained the proper coverage. For that reason, I agree that a reversal of the blanket grant of summary judgment is required and so I concur specially.

Decided July 8, 1994

Reconsideration denied July 29, 1994

William S. Stone, for appellant.

Neely & Player, Linda B. Foster, Frances R. Mathis, for appel-lees.

       The “Satisfaction of Judgment” may also be thought of as collateral source evidence. Where the amount to be recovered is contractual the amount received from collateral sources may be irrelevant, and collateral source evidence is not absolutely barred. Roberts, supra at 408-409 (2). However, “[t]he collateral source rule is applicable in tort cases because collateral source evidence cannot be admitted to diminish the defendant’s liability for the actual harm that was caused by his tort. [Cit.]” Id. at 408 (1).

       Although technically Nannis Terpening involved claims both in contract and tort, a contractual arbitration award and a professional negligence claim, it is unlike this case because only the process of arbitration was dependent upon the contract. The claim adjudicated in arbitration was the very same negligence claim. Because it was actually litigated in the arbitration it is also distinguished from this case because res judicata was involved as well.


author: Blackburn, Judge.

text:
    A94A0912.
    KEY v. THE STATE.
    (447 SE2d 697)
   Blackburn, Judge.

Appellant, Michael T. Key, appeals his conviction for violating the Georgia Controlled Substances Act by the selling of crack cocaine.

The evidence at trial when viewed in light most favorable to upholding the verdict, shows that on December 19, 1991, as part of an ongoing drug investigation, Special Agent Daryl Chaneyfield of the Georgia Bureau of Investigation, along with another agent and a confidential informant, drove to Key’s residence to purchase one-half ounce of crack cocaine from Key. The agents and the informant had previously paged Key and were advised by Key to meet him at his residence. Shortly after the officers arrived at Key’s residence, four males drove up in an automobile. Chaneyfield had not previously met Key and did now know him by sight. The informant identified Key to Officer Chaneyfield as everyone entered the residence. Chaneyfield then purchased the cocaine from Key for $400 cash.

Decided July 29, 1994.

J. Ellis Millsaps, for appellant.

Alan A. Cook, District Attorney, Christopher S. Brasher, Assistant District Attorney, for appellee.

Immediately after completing the drug buy, the agents and the informant left the residence and met with local narcotics agents. Viewing a photograph supplied by one of the local agents, Agent Chaneyfield identified Key therein. The chain of custody of the substance purchased by Chaneyfield was proven, and a Georgia Bureau of Investigation forensic chemist testified that the substance was cocaine.

Key’s three enumerations of error all relate to the allowing by the trial court of Agent Chaneyfield’s testimony that the confidential informant identified Key to him.

. The testimony was relevant to explain Chaneyfield’s conduct in purchasing the cocaine from the target of the undercover investigation. Therefore, such testimony was admissible. See OCGA § 24-3-2; Billups v. State, 206 Ga. App. 91, 93 (424 SE2d 355) (1992). “Based on his appearance, [Chaneyfield] positively identified [Key immediately after the transaction and] in court as the person from whom [he] had made the [purchase]. The fact that [Key was earlier identified to Chaneyfield] by the informant was thus superfluous and immaterial, and the trial court did not err by allowing the testimony.” Id. Accordingly, Key’s enumerations are without merit.

Judgment affirmed.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.


author: Judge.Harold R. Banke.

text:
    A94A1016.
    WESLEY v. LESLIE.
    (448 SE2d 89)
   Judge.Harold R. Banke.

This appeal is from a probate court’s order approving the final distribution of property proposed by the administratrix of an estate. The record shows that although the probate court signed a written order in the case on November 3, 1993, that order has never been filed with the Clerk of Probate Court. It thus appearing that no final order has been entered in the case, this appeal must be dismissed as premature. Turner v. Wood, 159 Ga. App. 850 (285 SE2d 589) (1981).

Decided July 29, 1994.

Allen & Perry, Roy L. Allen, Jr., for appellant.

Constance L. Thomas, for appellee.

Appeal dismissed.

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


author: Birdsong, Presiding Judge.

text:
    A94A1731.
    MADDOX et al. v. LEAPHART.
    (447 SE2d 694)
   Birdsong, Presiding Judge.

Francis E. Williams and Cone M. Maddox appeal the grant of summary judgment in this suit on a demand note executed on June 1, 1974. Plaintiff-creditor Florence Leaphart, who is Williams’ former wife, filed this suit in 1992. Appellants Francis Williams and Cone Maddox separately answered Leaphart’s complaint, raising affirmative defenses including statute of limitation, accord and satisfaction, laches, and res judicata. Appellant Williams filed a counterclaim alleging the suit was filed without substantial justification (OCGA § 51-7-80); he contends (as reasonably construed) that Leaphart entered into a divorce settlement and accepted benefits while failing to disclose that she intended to declare this note unsatisfied.

Both Williams and Maddox filed affidavits in response to Leaphart’s motion for summary judgment. They assert generally that they were real estate venture partners and they executed the note when they purchased subdivision development property in Wick’s Lake for $25,000. The $12,500 note was for advancement of Williams’ half of this purchase price.

Williams contends he provided the housing and main income for the marriage and Williams’ partnership with Maddox in their ventures produced millions of dollars in income, of which Williams’ share was always given to Leaphart; because all his funds were controlled by Leaphart, the $12,500 evidenced by the note came from funds he created; and the note merely served as evidence of Williams’ advancement of funds in case something happened to him; Williams also avers the note was satisfied by benefits received by Leaphart in their divorce settlement agreement.

Williams’ affidavit also contends the $12,500 note was repaid by his and Maddox’ conveyance to Leaphart of three lots in the Wick’s Lake property which was purchased with the money. Appellant Maddox filed an affidavit stating that the $12,500 debt was satisfied by conveyance to Leaphart of three lots of the Wick’s Lake property which was bought with the money.

Leaphart successfully contended below that she is entitled to summary judgment because Williams and Maddox admit their execution of the note and (according to her) they filed no affirmative defenses. The trial court awarded her $12,500 plus $26,125 interest and $5,793.75 attorney fees, costs, and post-judgment interest. Williams and Maddox appeal. Held:

1. Appellee Leaphart wastes much effort asserting that appellants failed to file any affirmative defense. The record shows on its face that appellants filed affirmative defenses. The question is whether appellants’ affirmative defenses are sufficient to contradict their promise to pay and to withstand summary judgment.

2. Leaphart contends that, according to Brooks v. McCorkle, 174 Ga. App. 132 (329 SE2d 214) and Freezamatic Corp. v. Brigadier Indus., 125 Ga. App. 767 (189 SE2d 108), an unconditional promise to pay in a promissory note is enforceable, parol evidence is inadmissible to inject conditions to it, and evidence of other dealings of the parties cannot vary its terms. Under Brooks v. McCorkle, no valid defense to the unconditional promise to pay is raised by Williams’ assertions that his and Leaphart’s divorce settlement resolved this debt and that the money she advanced was really his money. As a matter of fact, those assertions do not vary the clear terms of his promise to pay $12,500 to Leaphart “for value received.”

However, appellants specifically contend the note was paid by the transfer to Leaphart of three lots in the same Wick’s Lake subdivision which were purchased with the $12,500. This is a valid defense of accord and satisfaction.

In Brooks v. McCorkle, it was contended that the creditor held the note in trust for her husband, who was the debtor’s former partner, and that the note was subject to set-offs between the creditor’s husband and the debtor or was void for lack of consideration. In Tatum v. Bank of Cumming, 135 Ga. App. 675, 676 (218 SE2d 677), the debtor’s contention that the note was part of a larger contract which the creditor breached was insufficient to contradict an unconditional promise to pay. Nor do “previous business transactions” between the debtor and the creditor’s president provide a defense to the obligation to pay the note at maturity. Cox v. Farmers Bank, 159 Ga. App. 148, 151 (1) (282 SE2d 762). In those cases, the defenses merely attempted to contradict or vary an unconditional promise to pay, and that is why they were held “invalid.”

In this case, both debtors contend that the note was fully paid when the same property bought with the proceeds of the loan was conveyed to the creditor, in a transaction which was intended to, and did, constitute full payment of the note. This is not an invalid attempt to contradict or vary an unconditional promise to pay, as in Brooks, Tatum, and Cox, supra.

Decided July 29, 1994.

Gerald W. Fudge, Parker, Johnson, Cook & Dunlevie, Everett W. Gee III, Sonya Y. Ragland, for appellants.

William R. Harp, for appellee.

3. When the facts concerning an affirmative defense are uncon-tradicted, the matter may be disposed of by summary judgment (Beazley v. Williams, 231 Ga. 137 (200 SE2d 751)); but the burden is on the movant to prove no genuine issue of fact remains, the evidence is construed in favor of the respondent, and his evidence is treated with considerable indulgence. Collins v. Newman Machine Co., 190 Ga. App. 879, 882, 884 (380 SE2d 314). “When signatures [on a note] are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense.” (Emphasis supplied.) OCGA § 11-3-307 (2). When a plaintiff established execution of a note, the burden was on defendants to establish an affirmative defense (Jay Gleason Advertising Svc. v. Gleason, 193 Ga. App. 445 (1) (388 SE2d 43)), but on plaintiff’s motion for summary judgment, it was her burden to establish non-existence of a genuine issue of fact as to each affirmative defense; her papers are carefully scrutinized and all doubts are resolved against her, while the respondents’ papers are treated with considerable indulgence. First Rome Bank v. Reese Oil Co., 206 Ga. App. 667 (426 SE2d 384). See Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474).

Leaphart asserts that none of appellants’ affirmative defenses, including accord and satisfaction, creates a “triable” issue. By this, she means that the events described by appellants as to conveyance of the Wick’s Lake property to her never occurred and that appellants acknowledged the note’s existence in 1986. Leaphart thus concedes the contradictory nature of the evidence but asserts that her version of facts must be accepted. This is not how summary judgment works. Neither we nor the trial court may decide that appellants’ valid defense of accord and satisfaction is incredible. The evidence is to be adjudged in their favor as respondents. The trial court erred in granting summary judgment to Leaphart.

Judgment reversed.

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


text:
    A94A1751.
    WARNER v. THE STATE.
    (447 SE2d 692)
   Birdsong, Presiding Judge.

Appellant James Paul Warner pled guilty to one count of profane and abusive language and thirteen misdemeanor counts of theft by taking. The court appointed counsel for appellant. On simultaneous pleas of guilty, the trial court sentenced appellant to 13 consecutive 12-month sentences, $13,000 in fines, and restitution of $1,899. Appellant discharged his court-appointed counsel and secured pro bono counsel, who filed this appeal. He enumerates two errors: that the trial court accepted appellant’s guilty pleas without a determination whether his waiver of constitutional rights and his guilty plea were voluntarily and intelligently made, and that he was denied effective assistance of trial counsel.

There is no transcript of the plea proceedings. It is not contended that trial counsel requested the proceedings be recorded. The record consists of accusations of theft by deception, in various amounts, of several persons but contains no other indication of the facts. According to statements in appellant’s brief which the State does not suggest are untrue, the judge heard from three victims who testified that a woman called them and said she was their neighbor and had been arrested by DeKalb County; she requested a certain amount of money from the victims and asked them to take the money to a man named “David” at a certain address; she promised she would return the money after she got out of jail; and the victims took the money to the address and gave it to the man named “David,” whom they saw for only a few minutes.

Appellant contends he spoke twice, briefly, to his appointed counsel before arraignment; that he never met his appointed counsel until the day of arraignment; that he accepted what he believed was a negotiated plea agreement; that when he realized the judge was not going to follow the negotiated agreement, he asked to withdraw his pleas but the judge refused; that after he was sentenced to what he believed are excessive sentences, he attempted to withdraw his plea but counsel told him this could not be done; that counsel instead filed a motion to modify sentence (which does appear in the record and which was denied). Appellant also contends that trial counsel was ineffective because he did not investigate the charges; he did not interview any of the victims, did not investigate which victims identified appellant to the police or whether any of the victims could identify appellant, and did not investigate or consider any defenses or weakness in the State’s case. Held:

The burden to establish the validity of a guilty plea is on the State. Scurry v. State, 194 Ga. App. 165, 166 (390 SE2d 255). There must be an adequate record of a guilty plea hearing, so that an appellate court can determine whether (1) the defendant freely and voluntarily entered his plea with (2) an understanding of the nature of the charges against him and (3) an understanding of the consequences of his plea. Goodman v. Davis, 249 Ga. 11, 13 (287 SE2d 26), interpreting Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274); see Scurry, supra. The record discloses that the only filled-in blanks in any of the “Defendant’s Guilty Plea Statements” as to these offenses was the statement that the maximum punishment “allowed by law” is imprisonment for 12 months and $1,000 fine; this statement does not indicate that this sentence applies to each offense, and appellant contends the statement was false and misleading as to some of the offenses. The question on the forms, “Do you understand that the State has promised to recommend a sentence of_?” is not answered. There are questions on the forms intended to provide the trial court and the appellate court with information as to the volunta-riness of the guilty pleas as answered, including whether the defendant understands the charges against him, made a knowing and intelligent waiver of constitutional rights, is under the influence of any drugs or medication, and is satisfied with his attorney’s services; whether anyone promised anything, including a lesser sentence, for the guilty plea; and whether he understood that the court did not have to accept the State’s recommendation. None of those questions is answered. Although the forms instruct the defendant to circle either “yes” or “no,” no such answers are circled.

We conclude that the record on its face fails to show that appellant’s guilty pleas were voluntary and that he was cognizant of all his rights and the consequences of his plea. The trial court could not have made that determination on the face of this record. Although the State could have shown the voluntariness of the pleas by extrinsic evidence, the State has not met its burden to prove such evidence. Compare Robinson v. State, 212 Ga. App. 613, 615 (1) (442 SE2d 901) with Peters v. State, 210 Ga. App. 211 (435 SE2d 731); Scurry, supra; Wood v. State, 190 Ga. App. 179 (378 SE2d 520). Under the circumstances of this case, including the plea of ineffectiveness of trial counsel, we decline to assume, merely because there is no transcript, that these pleas were voluntary.

We do not hold as a matter of law that appellant’s guilty pleas were involuntary, but rather that the trial court could not make that determination on this record. The sentences of the trial court are vacated and the case is remanded for further proceedings, including the proper determination of appellant’s plea of ineffective assistance of counsel made on appeal (see Smith v. State, 255 Ga. 654 (341 SE2d 5)) and the filing of a motion to withdraw guilty pleas, if such is desired.

Judgment vacated and case remanded.

Blackburn, J., and Sen ior Appellate Judge Harold R. Banke concur.

Decided July 29, 1994.

Ernestine V. Scott, for appellant.

Paul L. Howard, Jr., Solicitor, Oliver E. Murray, Fay I. McCor-mack, Deborah Espy, Assistant Solicitors, for appellee.


author: Johnson, Judge.

text:
    A94A1130.
    THE STATE v. STEIEN.
    (447 SE2d 701)
   Johnson, Judge.

Alan Steien was involved in an automobile accident in a high school parking lot on April 28, 1993, and was charged with driving while under the influence of drugs, driving with a suspended license, giving a false name to a law enforcement officer, and driving without a license. The officer investigating the accident noticed prescription pads and prescription bottles inside Steien’s vehicle. A subsequent investigation resulted in Steien being charged with seven counts of obtaining controlled substances by fraud. These offenses were alleged to have occurred at various pharmacies on January 9, 1993; March 26, 1993; April 1, 1993; April 9, 1993; April 14, 1993; and April 26, 1993. The controlled substances offenses were prosecuted in one accusation. Steien pleaded guilty to these charges on July 2, 1993. On July 23, 1993, the state filed a separate accusation on the traffic-related offenses. Thereafter, Steien filed a plea in bar contending that the prosecution for the traffic-related offenses was barred because jeopardy attached with regard to those offenses when he pleaded guilty to the controlled substances charges. The trial court granted Steien’s plea state appeals.

In McCannon v. State, 252 Ga. 515, 517 (315 SE2d 413) (1984), the Supreme Court reasoned that OCGA § 16-1-8 (b) bars prosecution “if the accused was formerly prosecuted for a different crime . . . if such former prosecution: (1) resulted in either a conviction or acquittal and: . . . (ii) is for a crime with which the accused should have been charged on the former prosecution (unless the court ordered a separate trial of such charge).” Id. at 517. An accused should have been charged with crimes on the former prosecution if OCGA § 16-1-7 (b) requires it. Id. at 518. “OCGA § 16-1-7 (b) provides that ‘(i)f the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution.’ ” (Emphasis supplied.) Harrell v. State, 196 Ga. App. 101, 103 (2) (395 SE2d 598) (1990); Holcomb v. State, 185 Ga. App. 4, 5 (363 SE2d 320) (1987). “The phrase ‘the same conduct’ in this statute has been used interchangeably with the phrase ‘the same transaction.’ ” (Citation omitted.) Harrell, supra at 103; Lefler v. State, 210 Ga. App. 609, 610 (1) (436 SE2d 777) (1993). In this case, the offenses of obtaining controlled substances by fraud did not arise from the same transaction as the DUI, driving with a suspended license, giving a false name and driving without a license charges. The offenses involved different acts and occurred on different dates and in different locations. Evidence of the traffic-related offenses could be presented without permitting evidence of the controlled substance offenses, and vice versa. Harrell, supra at 103; Teal v. State, 203 Ga. App. 440, 443 (2) (b) (417 SE2d 666) (1992). See also Hiatt v. State, 133 Ga. App. 111, 113 (3) (210 SE2d 22) (1974). Accordingly, we find that the trial court erred in granting Steien’s plea of double jeopardy.

Decided August 1, 1994.

Gerald N. Blaney, Jr., Solicitor, Scott A. Drake, Richard E. Thomas, Assistant Solicitors, for appellant.

Merritt & Merritt, Mark Merritt, for appellee.

Judgment reversed.

Beasley, P. J., and Andrews, J., concur.


author: McMurray, Presiding Judge.

text:
    A94A1298.
    JORDAN v. THE STATE.
    (447 SE2d 341)
   McMurray, Presiding Judge.

Defendant Jordan appeals his conviction of the offense of a ter-roristic threat. Held:

Defendant contends that the evidence at trial was not sufficient to authorize his conviction. The evidence shows that on November 20, 1992, two police officers were patrolling particular drug areas throughout the City of Macon. When these officers arrived at Grier Street, they approached a group of approximately ten persons gathered in the area of a duplex rented by two females about whom the officers had received information that they were involved in drug activities. The officers asked for identification and looked around for any contraband. Officer Cotton approached several individuals introducing himself, his hand extended offering to shake hands. When Officer Cotton approached defendant, he withdrew his hand and proceeded to pat down several individuals including defendant, who became verbally hostile towards Officer Cotton. Evidence was introduced as to prior incidents between Officer Cotton and defendant which clearly established a pattern of animosity and hostility between the two individuals. The encounter at issue was entirely acrimonious with much cursing and many sexual references involving Officer Cotton’s girl friend. The crux of the offense of which defendant was convicted occurred, as related by Officer Cotton, when “[defendant] stated to me, he said I’d better get a bulletproof vest for my head, because we got your 308’s, your 9 millimeters, and your UZI’s. We got it all. Unquote. He stated to me that I need — excuse me. He stated that we got your infrared, we got it all.”

Decided August 1, 1994.

L. Elizabeth Lane, for appellant.

Charles H. Weston, District Attorney, Kimberly S. Shumate, Assistant District Attorney, for appellee.

“ ‘A person commits the offense of a terroristic threat when he threatens to commit any crime of violence. OCGA § 16-11-37 ((a)).’ Carver v. State, 258 Ga. 385, 386 (1) (369 SE2d 471) (1988). ‘ “When the communication of a threat is done to terrorize another, the crime of terroristic threats is complete(.)” . . . (Cit.)’ Wilson v. State, 151 Ga. App. 501, 503 (6) (260 SE2d 527) (1979). ‘Direct evidence that the threats were made for the purpose of terrorizing another is not necessary if the circumstances surrounding the threats are sufficient for a jury to find the threats were made for such a purpose. (Cit.)’ Boone v. State, 155 Ga. App. 937, 939 (2) (274 SE2d 49) (1980).” Hammock v. State, 210 Ga. App. 513, 515 (3) (436 SE2d 571). From the evidence presented at trial, a rational trier of fact could reasonably have found defendant guilty beyond a reasonable doubt of the offense of committing a terroristic threat upon Officer Cotton. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Hammock v. State, 210 Ga. App. 513, 515 (3), supra.

The trial court did not err in admitting similar transaction evidence concerning an earlier incident in which defendant became verbally abusive after being approached by a hospital police officer investigating a possible traffic offense and eventually threatened to kill that officer. The similar transaction evidence was admitted after compliance with the procedure directed by Williams v. State, 261 Ga. 640, 641 (2b), 642 (409 SE2d 649) and the prior incident was not dissimilar because the circumstances that precipitated the hospital police officer approaching defendant were different than those acted upon by the two police officers in the case sub judice.

Judgment affirmed.

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


author: Judge Harold R. Banke.

text:
    A94A1553.
    ECHOLS et al. v. COCHRAN et al.
    (447 SE2d 700)
   Judge Harold R. Banke.

The appellants bring this appeal from the trial court’s grant of an adoption petition and dismissal of their motion to intervene in that proceeding.

The child who was the subject of the adoption proceeding was born out of wedlock, and the identity of her father was not indicated on her birth certificate. When the child’s mother died in February 1993 from injuries sustained in an automobile collision, the juvenile court granted temporary custody of the child to the Carroll County Department of Family & Children Services, which placed the child with her maternal great aunt and uncle who are the appellants here.

Subsequently, the appellees, as the aunt and uncle of the child, filed a petition to adopt the child, and they obtained a written surrender of rights from the child’s putative biological father. The appellants sought to file objections to the adoption petition, but the trial court found that they lacked standing to intervene under Lockey v. Bennett, 244 Ga. 339 (260 SE2d 56) (1979).

In Lockey, the Supreme Court held that “relatives of a child may not file objections to its adoption as long as one natural parent is living and has consented.” Id. at 340. That holding applied Code Ann. § 74-411 (predecessor to OCGA § 19-8-15), which provided that a blood relative may file objections to an adoption petition “if there is no father or mother living.”

However, in 1990, OCGA § 19-8-15 was amended to allow such objections where the subject child has no living legal father or mother. OCGA § 19-8-1 defines legal father as a male who has legally adopted a child; who was married to the biological mother at the time the child was conceived or born; who married the legal mother after the child was born and recognized the child as his own; who has been adjudicated the father pursuant to OCGA § 19-7-40 et seq.; or who has legitimated the child.

In the instant case, it is undisputed that the appellants are blood relatives of the child sought to be adopted. It is further uncontro-verted that the child’s biological father did not constitute her “legal” father as defined above. It follows that under OCGA § 19-8-15, as amended, the appellants had standing to file objections to the adoption petition, and the trial court erred in concluding otherwise. Accordingly, this case must be remanded so that the appellants are afforded an opportunity to present their objections.

Judgment reversed and remanded.

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

Decided August 1, 1994.

Bradley D. Palmer, James B. Outman, Bauer, Deitch & Raines, Henry R. Bauer, Jr., Lois D. Shingler, for appellants.

Wiggins & Camp, Kelley C. Park, S. James Tuggle, Daniel M. Barnes, for appellees.


text:
    A94A1596.
    In the Interest of J. T., a child.
    (447 SE2d 702)
   Johnson, Judge.

A petition alleging that J. T. committed the offense of aggravated assault was filed in the juvenile court. The court entered an order transferring the offense to the superior court for disposition. J. T. appeals from that transfer order.

1. Relying on our decision in L. K. F. v. State of Ga., 173 Ga. App. 770, 772 (2) (328 SE2d 394) (1985), J. T. contends that the court abused its discretion in determining that there are reasonable grounds to believe that he is not committable to an institution for the mentally retarded or mentally ill. See OCGA § 15-11-39 (a) (3) (B). J. T.’s reliance on L. K. F. is misplaced. In that case, we found that the juvenile court improperly based its finding that the child was not mentally ill or retarded on the testimony of a witness who “specifically declined to express any opinion as to the [child’s] mental condition on the ground that he had neither the information nor the expertise to do so.” Id. at 771 (2). Unlike the court in L. K. F., the court in the instant case based its ruling on the testimony of two nonexpert witnesses, an investigator for the sheriff’s department and a juvenile court officer, who gave their opinions that J. T. is not mentally retarded or mentally ill. “[T]he child’s mental condition may be established by the testimony of a nonexpert witness, such as a court services worker, provided the witness gives sufficient facts and circumstances to establish the basis for his opinion. [Cits.]” Id. The testimony of the sheriff’s investigator shows that his opinion is based on several occasions when he conversed with J. T., who seemed to understand their conversations, and on instances when he observed J. T. interact with friends. The juvenile court officer explained that his opinion was based upon his personal contact with J. T. during the approximately 11 months before the transfer hearing, that he had talked with J. T. many times, that he had observed J. T. interact with other people at school and that he had participated on a committee which evaluated his mental status in preparing an individualized educational plan for J. T.

“[S]o different are the powers and habits of observation in different persons, that no general rule can be laid down as to what shall be deemed a sufficient opportunity of observation, other than, in fact, it has enabled the observer to form a belief or judgment thereon. . . . Ordinarily, the sufficiency of the reasons given by witnesses for their opinion as to a person’s [mental condition] cannot be determined as a matter of law by the court, but is a question for the [factfinder].” (Citations and punctuation omitted.) Leonard v. State, 157 Ga. App. 37, 39 (1) (276 SE2d 94) (1981). Contrary to J. T.’s contentions, we cannot find that the explanations given by the investigator and the court officer for their opinions as to J. T.’s mental condition are insufficient as a matter of law. The juvenile court, acting as the finder of fact, did not abuse its discretion in concluding that the two witnesses’ testimony provided reasonable grounds for believing that J. T. is not committable to an institution for the mentally retarded or mentally ill. See In the Interest of L. L., 165 Ga. App. 49 (299 SE2d 53) (1983).

2. J. T. argues that there was no evidence at the transfer hearing that he is not amenable to treatment in the juvenile system. See OCGA § 15-11-39 (a) (3) (C); State v. M. M., 259 Ga. 637 (386 SE2d 35) (1989). This claim is without merit. The juvenile court officer testified that in less than a year J. T. was adjudicated delinquent for three separate offenses: he was originally placed on probation for simple battery, later continued on probation after being adjudicated delinquent for simple assault, and was again continued on probation after having been found carrying a pistol without a license. At the time of the transfer hearing, J. T. also had a murder charge pending against him in superior court. The juvenile court officer asserted that there are no appropriate juvenile programs in which to place J. T., although he has never been committed to the Department of Children & Youth Services. Contrary to J. T.’s. argument, all of the foregoing evidence supports the finding that J. T. is not amenable to treatment in the juvenile system. See In the Interest of B. A. H., 198 Ga. App. 713, 715 (2) (402 SE2d 791) (1991); Nobles v. State, 191 Ga. App. 594, 597-598 (4) (382 SE2d 637) (1989); compare In the Interest of E. M., 198 Ga. App. 729 (402 SE2d 751) (1991).

The record also contradicts J. T.’s further claim that the court failed to balance his amenability to treatment with the interests of the community. At the conclusion of the transfer hearing, the court stated: “Due to the assaultive nature of the charges that he’s had in the Juvenile Court for the past 12 months or past year, I believe that the interest of the community require that he be placed in legal constraint, and that there’s nothing else the Juvenile Court can do for him at this time.” In the written transfer order, the court provides: “Based upon the juvenile’s record with the juvenile court of having three offenses within the last twelve months, that the juvenile continues to engage in assaultive-type behavior, and that the juvenile is currently charged in the Superior Court with the offense of murder, the Court finds that the interests of the child and the community require that the child be placed under legal restraint and that the transfer be made.” Under the circumstances of the instant case, we will not second-guess the juvenile court’s determination that the interests of the juvenile and the community mandate that the case be transferred to superior court. In the Interest of J. D., 195 Ga. App. 801, 803 (2) (395 SE2d 280) (1990).

Decided August 1, 1994.

Debra G. McDonald, Adrienne R. McFall, for appellant.

Harry N. Gordon, District Attorney, for appellee.

Judgment affirmed.

Beasley, P. J., and Andrews, J., concur.


text:
    A94A1864.
    LOVE v. THE STATE.
    (447 SE2d 698)
   McMurray, Presiding Judge.

Defendant Love appeals his conviction of a violation of the Georgia Controlled Substances Act, possession of cocaine with intent to distribute. Held:

1. Defendant maintains that he was denied effective assistance of trial counsel when trial counsel waived all errors in the trial court’s charge to the jury. However, a “failure to reserve exceptions to the court’s charge is not prejudicial where that charge is adequate and complete. See Concepcion v. State, 205 Ga. App. 138 (421 SE2d 554) (1992).” Davis v. State, 209 Ga. App. 755, 758 (1) (434 SE2d 752). In order to show prejudice, defendant has argued that three portions of the trial court’s instructions to the jury were incorrect.

First, defendant contends that the trial court erred in charging that “moral and reasonable certainty is all that can be expected in a legal investigation.” We find no error. While it has been held that the better practice is to omit this phrase from the jury charge, it has not been held to be reversible error when considered in the context of a correct charge on reasonable doubt. As the trial court has given a full and accurate charge on reasonable doubt, there is no error in the case sub judice. Marion v. State, 263 Ga. 358, 359 (2) (434 SE2d 463); Hicks v. State, 262 Ga. 756, 757 (3) (425 SE2d 877).

Defendant also argues that it was error to charge the jury on impeachment when defendant was the only witness who could possibly be considered to have been impeached. We find no support for this proposition in the only case cited in support thereof by defendant, Faust v. State, 222 Ga. 27, 28 (148 SE2d 430), or elsewhere. While a criminal defendant is not subject to impeachment by proof of general bad character or prior convictions until he puts his general good character in evidence, he is otherwise subject to impeachment the same as any other witness. Favors v. State, 145 Ga. App. 864, 865 (1) (244 SE2d 902). The charge on impeachment was not error.

Defendant also contends that the trial court’s charge on similar transaction evidence was error. The trial court charged that the jury could consider similar transaction evidence for “the limited purpose of showing, if it does, the identity of the perpetrator or the state of mind, that is, the knowledge or intent of the defendant. . . .” Relying upon Stephan v. State, 205 Ga. App. 241, 244 (2) (422 SE2d 25), defendant maintains that the trial court did not sufficiently limit the purpose for which the similar transaction evidence was to be considered by the jury. However, the case sub judice may be distinguished on the facts, in that here there was no failure to comply with the mandate of Williams v. State, 261 Ga. 640, 641 (2) (409 SE2d 649). In the case sub judice, the prosecutor made the required statement of the purpose for which the similar transaction was presented, the trial court made the requisite finding that the similar transaction evidence was admitted for a limited purpose, and the jury was appropriately charged as to that purpose. In Stephan there was no identification of the purpose for the admission of the similar transaction evidence and the trial court attempted without success to remedy this deficiency by a charge using a comprehensive list of possible purposes for which the similar transaction evidence might be admitted.

In order to support his claim of ineffective assistance of trial counsel, defendant must show both that his trial counsel’s performance was deficient and that the deficient performance prejudiced his defense. Sumner v. State, 210 Ga. App. 856, 857 (6) (437 SE2d 855); Davis v. State, 209 Ga. App. 755, 757 (1), supra. Under the facts and circumstances of the case sub judice, the trial counsel’s decision to waive any errors in the jury charge has not been shown to amount to a failure to render effective assistance of counsel.

2. The remaining enumeration of error contends that the trial court erred in allowing the prosecuting attorney to ask defendant leading questions designed to improperly place his character in issue. However, since defendant failed to raise any objection before the trial court, the issue now argued by defendant was not preserved for consideration on appeal. Chunn v. State, 210 Ga. App. 209 (1) (435 SE2d 728); Self v. State, 208 Ga. App. 447, 448 (1) (431 SE2d 126); Kincer v. State, 208 Ga. App. 360 (1) (430 SE2d 597); Abreu v. State, 206 Ga. App. 361, 363 (2) (425 SE2d 331).

Judgment affirmed.

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

Decided August 1, 1994.

Megan C. De Vorsey, for appellant.

Lewis R. Slaton, District Attorney, Darrell T. Carver, Frances E. Cullen, Assistant District Attorneys, for appellee.


text:
    A93A0483.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. MARTIN et al.
    (448 SE2d 90)
    Decided August 2, 1994.

      Dillard, Bower & East, Bryant H. Bower, Jr., for appellant.

      Helms & Helms, Catherine H. Helms, J. Jeffrey Helms, Jr., for appellees.
   Johnson, Judge.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court, Ga. Farm Bureau Mut. Ins. Co. v. Martin, 264 Ga. 347 (444 SE2d 739) (1994), our decision in Ga. Farm Bureau Mut. Ins. Co. v. Martin, 209 Ga. App. 237 (433 SE2d 315) (1993), is hereby vacated and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed.

Blackburn and Smith, JJ., concur.


text:
    A93A0705.
    NORTH AMERICAN LIFE & CASUALTY COMPANY, INC. v. RIEDL.
    (448 SE2d 90)
   Smith, Judge.

On certiorari, the Supreme Court reversed the decision of this court vacating the trial court’s denial of appellant’s motion to dismiss in North American Life &c. Co. v. Riedl, 209 Ga. App. 883 (434 SE2d 820) (1993). See Allianz Life Ins. Co. v. Riedl, 264 Ga. 395 (444 SE2d 736) (1994). Accordingly, our decision is vacated, the judgment of the Supreme Court is made the judgment of this court, and the trial court’s judgment is reversed and remanded for further proceedings not inconsistent with the judgment of the Supreme Court.

Judgment reversed and remanded.

Johnson and Blackburn, JJ., concur.

Decided August 2, 1994.

Booth, Wade & Campbell, Douglas N. Campbell, Thomas A. Croft, for appellant.

Harry L. Trauffer, for appellee.


author: Per curiam.

text:
    A93A1400.
    DEPENDABLE COURIER SERVICE, INC. v. DINKINS.
    (448 SE2d 89)
    Decided August 2, 1994.

      Dermer & Black, Richard W. Brown, for appellant.

      Simmons & Toliver, Joseph H. King, Jr., for appellee.
   Per curiam.

In Dinkins v. Dependable Courier Svc., 264 Ga. 359 (444 SE2d 322) (1994), the Supreme Court reversed this court’s decision in Dependable Courier Svc. v. Dinkins, 210 Ga. App. 665 (436 SE2d 719) (1993). Accordingly, our judgment in this case is vacated and the judgment of the Supreme Court is made the judgment of this court.

Judgment affirmed.

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