text:
    A98A0292.
    JOHNSON v. THE STATE.
    (497 SE2d 666)
   Eldridge, Judge.

Appellant-defendant Davis Johnson challenges his conviction for violating the Georgia Controlled Substances Act (“GCSA”), OCGA § 16-13-20 et seq. We affirm.

On August 8,1996, Officers J. D. Huckabey and D. L. Baker were operating in an undercover capacity in the Lynwood Park area of DeKalb County. Earlier in the day, Officer Huckabey had taken $100 (five $20 bills) from the DeKalb County Buy Fund; pursuant to her regular practice, she photocopied each bill for identification purposes.

While driving in Lynwood Park, the officers were flagged down by Elkin Clarke, appellant’s co-defendant, who approached the unmarked police vehicle and leaned in the open window. He asked Officer Huckabey if she was “looking for a 20,” referring to a $20 piece of crack cocaine. When Officer Huckabey responded affirmatively, Clarke walked over to the defendant, who was standing by himself approximately five feet away. Officer Huckabey observed the defendant hand Clarke some crack cocaine. Clarke immediately walked back to the unmarked police vehicle and gave Huckabey at least one piece of crack cocaine, which later field tested positive for cocaine. Officer Huckabey handed Clarke one of the $20 bills and observed as Clarke walked over and gave it to the defendant. Officer Huckabey then drove away and immediately signaled uniformed officers in the area that a sale had been conducted. The uniformed officers arrived at the scene approximately one minute later and apprehended Clarke and the defendant. The defendant had the $20 bill from the buy fund clenched in his fist; the defendant also possessed approximately $900 in cash. Both individuals were arrested and charged with possession of cocaine with the intent to distribute. Within hours following the arrest, Officers Huckabey and Baker identified the defendant from jail photos to ensure that the other officers had arrested the correct suspects. Officer Huckabey also testified that, as she transported the defendant to the DeKalb County Jail, the defendant told her that “when he gets out that I need to watch myself. . . because we were going to get it when he got out.”

The defendant was tried February 18-21, 1997; Clarke was tried separately. Prior to trial, the defendant filed a motion in limine to exclude from evidence a photostatic copy of the $20 bill from the buy fund, asserting that it violated the best evidence rule, OCGA § 24-5-1; the motion was denied. The defendant also asserted a challenge under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), as to the State’s peremptory strikes; the trial court ruled that the defendant failed to establish that the State had a discriminatory intent in executing the strikes. The defendant was convicted of violating the GCSA and was sentenced to forty years, ten to serve. His motion for a new trial was denied, and he appeals. Held:

1. In his first enumeration of error, the defendant asserts that the trial court erred in admitting into evidence a photocopy of the “buy money,” as opposed to the actual $20 bill, claiming that it violated the best evidence rule, OCGA § 24-5-4 (a). However, the best evidence rule applies only to writings where the terms are material and the contents of the writing are in issue, as in a dispute regarding the contents of a contract, deed, will, search warrant, or prior conviction. See Bishop v. Kenny, 266 Ga. 231 (466 SE2d 581) (1996) (rule applies to wills); Jefferson Pilot &c. Co. v. Prickett, 176 Ga. App. 810 (338 SE2d 19) (1985); State v. Mincey, 167 Ga. App. 850 (308 SE2d 18) (1983). See also Perkins v. State, 260 Ga. 292 (392 SE2d 872) (1990); Springer v. State, 238 Ga. 81 (230 SE2d 883) (1976); Munsford v. State, 235 Ga. 38 (218 SE2d 792) (1975) (best evidence rule has nothing to do with evidence generally); King v. State, 209 Ga. App. 529 (433 SE2d 722) (1993); Shivers v. State, 188 Ga. App. 744 (374 SE2d 233) (1988); McCoy v. State, 185 Ga. App. 221 (363 SE2d 628) (1987).

Currency is not a “writing” under the best evidence rule. Further, there was no dispute in this case regarding the bill’s contents, such as an assertion that the bill had been altered. See generally Springer v. State, supra at 82. In fact, the defendant did not assert at trial that the photocopy was not an exact replica of the $20 bill from the buy fund or that the bill recovered from his possession was not the same $20 bill, and did not cross-examine the State’s witnesses concerning these issues, but asserted only that the original bill should have been admitted as evidence instead of the photocopy.

However, Officer Huckabey testified that she had made a photocopy of the $20 bill used in the drug buy in order to assist her in tracking the bill after the transaction. Therefore, the photocopy was primary evidence supporting the officer’s testimony. See Jacobs v. State, 207 Ga. App. 714 (429 SE2d 256) (1993). The fact that the officer did not also submit as evidence the original $20 bill found in the defendant’s possession affects only the weight of her testimony, not the admissibility of the photocopy. Accordingly, the photocopy of the bill was admissible into evidence.

Further, even if the original currency was a “writing” subject to the best evidence rule, the photocopy was admissible under either OCGA § 24-5-4 (a) or § 24-5-26. OCGA § 24-5-4 (a) allows a photocopy of the writing if the “absence [of the original is] satisfactorily accounted for.” In this case, the State asserted that the original $20 bill was unavailable because it had been recirculated through the buy fund for subsequent drug sting operations. Unless the county was able to reuse the currency, each bill that became evidence in an illegal drug buy would have had to be locked up in the evidence room for months, so that DeKalb County would have “thousands and thousands” of dollars from the buy fund tied up and out of circulation pending trial. This explanation for the absence of the original $20 bill was sufficient to justify the admission of the photocopy into evidence. See also OCGA § 24-5-25. Alternatively, the photocopy was made in the ordinary course of business and, as such, was admissible under OCGA § 24-5-26.

2. In his second enumeration, the defendant, who is African-American, asserts that the trial court improperly denied his Batson challenge regarding three jurors that were allegedly stricken by the State on the basis of race.

The trial court found that the defendant had established a prima facie case of racial discrimination by showing that the State used,five of its six peremptory strikes against African-American jurors. Once a prima facie case of racial discrimination in the use of peremptory strikes is shown, the second step of a Batson analysis requires the proponent of the strikes to produce race-neutral, reasonably specific reasons for the strikes. Jones v. State, 226 Ga. App. 428, 429 (487 SE2d 62) (1997). Then, in the third step, “the trial court must determine, under the totality of the circumstances, whether the challenger has proven [that the] proffered reasons were merely pretext, and the strike was actually exercised for a racially discriminatory purpose. [Cit.]” Id.; see Greene v. State, 266 Ga. 439, 443 (469 SE2d 129) (1996) (once an explanation for the strike has been proffered, “the inquiry [is] properly framed for the trial court’s determination”). “A trial court’s determination of a Batson challenge rests largely upon assessment of the attorney’s state of mind and credibility; it therefore lies peculiarly within a trial judge’s province. The trial court’s factual findings must be given great deference and may be disregarded only if clearly erroneous.” (Citation and punctuation omitted.) Holt v. Scott, 226 Ga. App. 812, 816 (487 SE2d 657) (1997); see also Purkett v. Elem, supra; Johnson v. State, 266 Ga. 775, 776-777 (4) (470 SE2d 637) (1996); Chandler v. State, 266 Ga. 509, 510 (2) (467 SE2d 562) (1996); Jones v. State, supra at 430; Scott v. State, 225 Ga. App. 729, 730-731 (484 SE2d 780) (1997); see also Whatley v. State, 266 Ga. 568, 570 (3) (468 SE2d 751) (1996); Gardner v. State, 225 Ga. App. 427, 431-432 (483 SE2d 912) (1997), citing Purkett v. Elem, supra; Moore v. American Suzuki Motor Corp., 211 Ga. App. 337, 342 (439 SE2d 43) (1993) (deferring to the trial court’s determinations after recognizing that, in the absence of a transcript of jury voir dire, the “trial court was aware of all that transpired during voir-dire questioning but we are not”).

In this case, according to the State,* juror no. 3 was a childcare worker who had only recently become employed outside the home and who lacked any other employment history. The State argued that it was looking for jurors with significant, stable work and educational backgrounds. The trial court accepted this as being a sufficient race-neutral reason for the strike. In response, the defendant asserted that the State had failed to strike similarly situated Caucasian jurors. However, the State showed that the other jurors at issue had significant work histories, regardless of their current employment status. The trial court found that the defendant had failed to prove purposeful racial discrimination as to juror no. 3, and such determination was not clearly erroneous. See Robert v. State, 227 Ga. App. 26 (488 SE2d 105) (1997); Scott v. State, supra at 731; see also Freeman v. State, 268 Ga. 181, 182 (486 SE2d 161) (1997); Holt v. Scott, supra at 817 (holding that “a Batson violation does not exist simply because one or more of [the] racially-neutral reasons was not used by the attorney to strike potential jurors of another race or gender”).

Juror no. 29 was a Hispanic female who had started a new job a week before, who was in the middle of job training, and who expressed concern about missing work due to jury duty. According to the State, the juror expressed that it would be difficult to concentrate on the evidence because of her job concerns. The trial court found that this was a race-neutral reason for the strike. The defendant responded by noting that the juror was well-educated and intelligent, and that she had indicated that she could be fair and impartial if chosen as a juror. However, the trial court found that the defendant had failed to prove purposeful discrimination and rejected the Batson challenge as to this juror; such finding was not clearly erroneous.

As to juror no. 31, the State argued that she was an unemployed, 24-year-old, pregnant, single parent of two small children with no significant work history and no apparent stable home life. In addition, the State asserted that pregnant jurors as a group are “very nurturing and sympathetic towards defendants.” The trial court accepted these reasons as race-neutral. The defendant responded by arguing that the State’s preference for “professional women” automatically discriminated against African-American women; however, the trial court found that this argument supported only the prima facie case, and did not show purposeful discrimination. Accordingly, the trial court rejected the Batson challenge as to this juror. Although we agree with the defendant’s argument to this Court that striking a juror solely because of her pregnancy would violate equal protection principles, we uphold the trial court’s acceptance of the other race-neutral reasons for this strike. Further, the trial court’s determination that the defendant had failed to prove purposeful discrimination was not clearly erroneous.

3. The defendant next asserts that the trial court erred in refusing to admit a certified copy of the result of the preliminary hearing, which was being offered as impeachment evidence against Officer Huckabey. The defendant claims that he was entitled to use the certified copy to establish that the officer’s memory of the facts of this case was questionable.

Charges against the defendant were dropped following the preliminary hearing, but the defendant was subsequently indicted by a grand jury for this offense. During trial, the defendant questioned Officer Huckabey about whether she was “happy” with the results of the preliminary hearing; she testified that she was happy because the case was bound over to the superior court. The defendant then showed the officer a certified copy of the results of the hearing, and the officer admitted that the case was dismissed by the magistrate court. The defendant then attempted to admit into evidence the certified copy of the dismissal, and the State objected to the evidence as irrelevant. The trial court agreed and refused to admit the certified copy.

“ ‘[W]hile a witness may be impeached on a collateral issue which is indirectly material to the issue in the case, a witness may not be impeached because of a discrepancy as to a wholly immaterial matter.’ ” (Citations omitted.) Gilbert v. State, 159 Ga. App. 326, 327 (2) (283 SE2d 361) (1981); see also Haynes v. State, 180 Ga. App. 202 (349 SE2d 180) (1986). Evidence of the prior disposition of the case in the magistrate court is irrelevant to the question of the defendant’s guilt or innocence, particularly when, as in this case, the defendant is subsequently indicted in the superior court. See Boyce v. State, 184 Ga. App. 578 (362 SE2d 229) (1987); see also Beckum v. State, 156 Ga. App. 484, 486 (274 SE2d 829) (1980). Further, in this case, the defendant was allowed to elicit testimony during the cross-examination of Officer Huckabey that the case had, in fact, been dismissed by the magistrate court. Accordingly, there was no error in the trial court’s refusal to admit the certified copy of the results of the preliminary hearing.

4. Finally, the defendant asserts that the evidence was purely circumstantial, failed to exclude every other reasonable hypothesis that was inconsistent with his guilt, and was insufficient to support the verdict. We disagree.

Upon review of a conviction, the defendant no longer has the benefit of the presumption of innocence, and the evidence is viewed in a light most favorable to the jury’s verdict. Mason v. State, 199 Ga. App. 691, 692 (405 SE2d 747) (1991). In this case, the evidence included testimony by Officers Huckabey and Baker which identified the defendant as the person who was standing approximately five feet from their car during the drug buy, who handed the crack cocaine to Clarke, and who accepted the $20 bill from the buy fund from Clarke. Arresting Officer Mitchum testified that the defendant had the same $20 bill in his clenched fist when he was arrested moments after the drug buy. Such testimony is direct evidence of the defendant’s participation in this crime. Even though contradictory evidence was elicited by the defense, this Court does not weigh evidence upon review but is limited to considering whether the evidence is sufficient for a rational trier of fact to find that the defendant is guilty beyond a reasonable doubt of the crime for which he is charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The evidence was sufficient to find that the defendant was guilty of a violation of the Georgia Controlled Substances Act.

Judgment affirmed.

McMurray, P. J., concurs. Blackburn, J., concurs in the judgment only.

Decided March 11, 1998.

Paul J. McCord, for appellant.

J. Tom Morgan, District Attorney, Carol M. Kayser, Robert M. Coker, Assistant District Attorneys, for appellee.

       “ ‘The ultimate burden of persuasion about the racial motivation rests with and never leaves the opponent of the strike.’ ” Holt v. Scott, 226 Ga. App. 812, 816 (487 SE2d 657) (1997). Such burden may be satisfied in numerous ways, such as the trial court’s disbelief of the explanations, together with elements of the prima facie case; the trial court’s knowledge of the community in relation to the explanations offered; or the trial court’s knowledge of the one utilizing the strike in relation to the explanations offered. St. Mary’s Honor Ctr. v. Hicks, 509 U. S. 502 (113 SC 2742, 125 LE2d 407) (1993); Hernandez v. New York, 500 U. S. 352 (111 SC 1859, 114 LE2d 395) (1991); Hairston v. Gainesville Sun Publishing Co., 9 F3d 913, 914 (11th Cir. 1993). Thus, while additional argument to the trial court may (or may not) aid the opponent of the strike’s persuasive burden, the opponent is not required to introduce evidence beyond that already offered to establish the prima facie case. See Purkett v. Elem, 514 U. S. 765 (115 SC 1769,131 LE2d 834) (1995) (following the prima facie showing and subsequent reasons for exercising strikes, the trial court, without explanation, overruled the Bat-son challenge);.Sf. Mary’s Honor Ctr. v. Hicks, supra at 125 LE2d 418 (factfinder’s disbelief of reasons put forward by defendant, together with elements of prima facie case, suffice to show intentional discrimination); Batson v. Kentucky, supra at 85 (once a prima facie showing is made, the trial court undertakes inquiry into such evidence of intent to discriminate as may be available); Hairston v. Gainesville Sun Publishing Co., supra at 913 (prima facie case sufficient to establish pretext). In the absence of further argument from the opponent of the strike, the trial court decides whether the proffered explanations are “strong enough to overcome the . . . prima facie case,” as the third step of the analysis. Lingo v. State, 263 Ga. 664, 665 (437 SE2d 463) (1993); Ford v. State, 262 Ga. 558, 559 (423 SE2d 245) (1992).

       The defendant did not file a transcript of the voir dire of the jury pool. Accordingly, this Court must presume that the State’s characterization in the record of the juror’s responses is accurate.


source: Caselaw Access Project

author: Andrews, Chief Judge. McMurray, Presiding Judge,

license: Public Domain

text:
    A98A0411.
    GROVNOR v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA.
    (497 SE2d 652)
   Andrews, Chief Judge.

The sole issue before us on appeal is whether the trial court erred in denying Eva Grovnor’s extraordinary motion for extension of time to file notice of appeal. Because we find no error, we affirm.

This case arose when Grovnor filed suit against the University System over a grade she received in one of her nursing classes. Because the grade was one point below the grade necessary to advance to the next course, Grovnor was effectively prevented from pursuing a degree in nursing at Brunswick College.

The Board of Regents filed a motion to dismiss the claim, which the trial court granted on February 26, 1997. On June 25, 1997, Grovnor filed her motion for an extension of time to file the appeal. The trial court denied the motion and this appeal followed.

1. In Grovnor’s request for an extension of time in which to appeal, she claimed the reason she could not file the notice timely was because she was out of the state and her attorney could not discuss with her whether or not she wanted to appeal the dismissal. Grovnor cites two cases in support of her contention that the trial court erred in denying her motion for extension of time; however, they are not on point. See Ponder v. State, 260 Ga. 840 (400 SE2d 922) (1991) (holding that the proceeding in which the out-of-time appeal is sought is the appropriate time to raise ineffective assistance of counsel); Boulden v. Fowler, 202 Ga. App. 237 (414 SE2d 263) (1991) (trial court abused its discretion in dismissing appeal when delay in filing the transcript was attributable to the backlog of the court reporter and not the appellant).

OCGA § 5-6-38 (a) provides that “[a] notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of. . . .” OCGA § 5-6-39 states that an extension of time may be granted but it shall not exceed 30 days and must be made before the initial 30-day period for filing the notice of appeal expires. OCGA § 5-6-39 (c) and (d). “OCGA § 5-6-39 provides no jurisdiction to either the trial court or this Court to grant an extension of more than 30 days for the filing of a notice of appeal.” Dillard v. State, 223 Ga. App. 405 (477 SE2d 674) (1996), citing Rockdale County v. Water Rights Committee, 189 Ga. App. 873, 874 (377 SE2d 730) (1989). As set out above, Grovnor did not file her motion for extension of time until almost three months after entry of the dismissal. Accordingly, the trial court did not err in denying Grovnor’s motion for an extension of time in which to file her notice of appeal.

Decided March 11, 1998.

Roy L. Allen, Jr., for appellant.

Eva Grovnor, pro se.

Thurbert E. Baker, Attorney General, Kathryn L. Allen, Senior Assistant Attorney General, for appellee.

2. Under the facts of this case, Grovnor could have no reasonable basis for believing this appeal would result in a reversal of the trial court’s judgment. Therefore, pursuant to Court of Appeals Rule 15 (b), we assess a frivolous appeal penalty of $1,000 against Grovnor and her attorney. On remittitur, the trial court shall enter judgment in favor of the Board of Regents against Eva Grovnor and her attorney, Roy L. Allen II, in the amount of $1,000.

Judgment affirmed.

Blackburn, J., concurs. McMurray, P. J., concurs in part as to Division 1 and dissents in part as to Division 2.

McMurray, Presiding Judge,

concurring in part and dissenting in part.

Although this Court has found no merit in this appeal and while I agree that this case should be affirmed, I cannot conclude this appeal was solely for purposes of delay. Consequently, I oppose this Court’s sua sponte imposition of frivolous appeal damages.


author: Andrews, Chief Judge.

text:
    A98A0466.
    MILLAN v. THE STATE.
    (497 SE2d 664)
   Andrews, Chief Judge.

Dana M. Millan was issued four Uniform Traffic Citations (UTCs) for driving under the influence, speeding, improper lane usage, and following too closely. She moved for discharge and acquittal on the charges claiming the state failed to comply with her speedy trial demand under OCGA § 17-7-170. The trial court denied the motion on the basis that the demand was prematurely filed. Millan appeals from the denial order.

Because the record shows that the speedy trial demand was filed before the state filed the UTCs or an accusation with the State Court, the demand was premature and a nullity. Accordingly, we affirm the trial court.

The UTCs were issued to Millan on March 16,1996. At a hearing in the Recorder’s Court on April 30, 1996, Millan requested a jury trial on the charges, and the case was bound over to State Court. The Recorder’s Court Clerk filed the UTCs with the State Court Clerk on May 3, 1996. An affidavit from the District Attorney prosecuting the case on the state’s behalf states that: “The citations were filed as an administrative procedure by the Recorders Court Clerk to the State Court Clerk. This filing is not through, nor authorized by, the District Attorney’s Office.” On May 14, 1996, Millan filed her speedy trial demand in the State Court. On September 26, 1996, the District Attorney filed an accusation in the State Court charging Millan with the offenses listed in the UTCs. On October 23,1996, Millan filed her motion for discharge and acquittal based on the speedy trial demand.

In State v. Gerbert, 267 Ga. 169 (475 SE2d 621) (1996), the Supreme Court established a “bright-line rule . . . that the right to a speedy trial under OCGA § 17-7-170 attaches when the state files the uniform traffic citation with the court.” (Emphasis supplied.) The evidence shows that the Recorder’s Court Clerk filed the UTCs with the State Court without any participation by or authorization from the District Attorney. Thus, there is no evidence in the present case that the state filed the UTCs with the State Court. Contrary to Millan’s contention, the fact that the District Attorney may have been aware that the UTCs had been filed by the Recorder’s Court Clerk, is not evidence that the State filed the UTCs by consenting to, ratifying or approving the filing.

“Generally, a prosecution in state court commences with the filing by the [state prosecutor] of an accusation or UTC with the clerk of the court. OCGA § 16-1-3 (14).” (Citation and punctuation omitted.) Shire v. State, 225 Ga. App. 306, 307 (1) (a) (483 SE2d 694) (1997). Although OCGA § 40-13-1 provides that a UTC may function as an accusation, a UTC may function in the place of an accusation to commence the prosecution only when it has been filed with the court by the State. See Gerbert, supra at 169-170. The state prosecutor chose to commence the prosecution in this case, not by filing the UTCs, but by filing an accusation with the State Court. Since Millan’s right to a speedy trial under OCGA § 17-7-170 attached when the District Attorney filed the accusation with the State Court, her speedy trial demand filed prior to that time was premature and a nullity. Shire, supra at 310.

Decided March 11, 1998.

Lane & Crowe, Robert L. Crowe, for appellant.

Spencer Lawton, Jr., District Attorney, Sharon Patrick-Wilson, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J, and Eldridge, J., concur.

       Although OCGA § 15-18-66 (b) (10) was not in effect when the UTCs were filed in this case, it expresses the current legislative intention that: “No accusation, citation, or summons shall be considered filed unless such filing has been done with the consent, direction, or approval of the solicitor-general. . . . Prior to the filing of an accusation, citation, or summons, the solicitor-general shall have the same authority and discretion as district attorneys over criminal cases within their jurisdiction.”


author: Eldridge, Judge.

text:
    A98A0567.
    WILLIAMS v. THE STATE.
    (497 SE2d 660)
   Eldridge, Judge.

Bernard Williams was indicted for simple possession of cocaine and misdemeanor theft by taking. He appeals a Lanier County jury verdict finding him guilty of the simple possession count; the jury acquitted on the theft by taking. We are constrained to confirm.

1. Appellant contends that the trial court erred by denying defense counsel, J. J. Strickland’s, motion for continuance, because of insufficient time to prepare for trial. We do not agree with this contention.

Strickland’s motion asserts that he was appointed on Friday, November 22, 1996. The record demonstrates that the state informed Strickland prior to his appointment that appellant was unrepresented and that Strickland would most probably be appointed. The trial date was scheduled for December 2, 1996. Before noon on Wednesday, November 27, defense counsel left town on vacation. No conflict letter was filed. Defense counsel’s motion for continuance was filed on the day of trial and cited the lack of time to investigate as the basis therefor, “due to the number of state witnesses;”

In this case, the state called four witnesses, one of whom was the crime lab technician, the substance of whose testimony regarding positive test results was known to Strickland. Strickland had interviewed “one or two” witnesses, which included Annette Golden, the only substantive witness as to the possession offense. The Lakeland Police Chief, William Davis, was available to be interviewed at any time. The only other witness exonerated appellant as to the misdemeanor theft charge.

“A motion for continuance predicated upon a claim of insufficient time to prepare for trial is addressed to the sound discretion of the trial court, and will not be interfered with unless it is clearly shown that the court abused its discretion.” Payne v. State, 207 Ga. App. 312, 314 (428 SE2d 103) (1993). Based upon the record before this Court, appellant has not clearly shown that the trial court abused its discretion in denying defense counsel’s motion for continuance.

2. Appellant’s second, third, and fourth enumerations of error are based upon the same allegation: during its case-in-chief, the state failed to prove that appellant had possession of the cocaine. We disagree.

Annette Golden, owner of the Hobo Cafe, served appellant breakfast at approximately 10:15 a.m. She became concerned because appellant “acted strange,” as if he was “under the influence of drugs or alcohol.” No one else was in the restaurant. She called Lakeland Police Chief William Davis to “come check him out.” Chief Davis arrived and questioned appellant, who was sitting at one of the tables in the Hobo. Chief Davis exited the restaurant to call for backup. While Davis was outside, Golden saw appellant get up from his table and walk over to the steamtable where the to-go salt and pepper packets are kept in a basket. Appellant returned to his table and used the salt and pepper packets on his breakfast, although salt and pepper shakers were on his table.

Immediately thereafter, Chief Davis returned and questioned appellant regarding a bicycle that appellant had been using. Based upon appellant’s response, Davis arrested him for theft of the bike. Pursuant to arrest, a pocketknife was seized from appellant.

A few minutes after appellant was removed from the restaurant by the police, Golden found a wadded-up paper towel on the steam-table next to the to-go salt and pepper packets, where Golden had seen appellant standing. The paper towel had not been there prior to appellant’s trip to the steamtable, and no one else had been to the steamtable. The towel contained three rocks of an unidentified substance. The three rocks tested positive for cocaine. In addition, appellant’s pocketknife tested positive for cocaine residue.

Decided March 11, 1998.

John W Strickland, Jr., for appellant.

Robert B. Ellis, Jr., District Attorney, Timothy L. Eidson, Assistant District Attorney, for appellee.

During the defense’s case-in-chief, appellant, as the only witness for the defense, testified that he never went to the steamtable, and the drugs were not his; he hypothesized that Chief Davis contaminated appellant’s pocketknife with cocaine residue.

“It is solely within the purview of the jury to weigh conflicting evidence and judge the credibility of the witnesses.” Cannon v. State, 223 Ga. App. 248 (477 SE2d 381) (1996). In this case, the jury resolved any conflict in favor of the state, and this Court will not substitute its judgment as to witness credibility for that of the jury. Green v. State, 218 Ga. App. 648, 649 (1) (463 SE2d 133) (1995). We find that the state produced circumstantial evidence of appellant’s guilt sufficient to exclude every other reasonable hypothesis save that of his guilt and sufficient to allow the jury to find him guilty beyond a reasonable doubt. OCGA § 24-4-6; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

       We affirm this simple possession conviction based upon the appellant’s three, specific enumerations of error. However, this Court does not condone the conduct of the state, which improperly placed appellant’s character into evidence by asking the local police chief: “Isn’t it true that the defendant now has two counts pending of sale of cocaine and five armed robbery charges?” Contrary to the state’s argument to the trial court, appellant did not open the door to this inquiry by cross-examining the police chief regarding the character of appellant’s friends. The trial court erred in overruling objection to questions regarding appellant’s pending charges. Thereafter, although appellant was only charged with simple possession and misdemeanor theft, the state argued in closing: “[Tlhere’s people like Bernard Williams [appellant] out there on the street. There’s people like him out there that sell crack to people that get them hooked on it so they have to go steal. . . . These people go out and commit armed robberies. People like Bernard Williams.” (Emphasis supplied.)

       The trial court’s order appointed Strickland on Thursday, November 21.

       Under this same enumeration of error, appellant contends that he had insufficient time to prepare a motion to suppress, as demonstrated by his failure to file one. This ground was not raised at trial as a basis for the continuance motion. “ ‘Issues raised for the first time on appeal will not be considered by this court.’ ” Cooper v. State, 200 Ga. App. 560 (1) (408 SE2d 797) (1991). Further, the failure to file such motion does not show that one could not have been filed.

       Appellant’s arrest has not been challenged, either at trial or before this Court.


text:
    A98A0668.
    DANIEL v. THE STATE.
    (497 SE2d 656)
   Eldridge, Judge.

Mary Louise Daniel appeals a DeKalb County jury’s verdict finding her guilty of DUI — “less safe driver.” In her sole enumeration of error, appellant contends that the trial court erred “when it admitted evidence of the State-Administered breath test in front of the jury without first considering outside the presence of the jury whether the results were admissible.” We disagree and affirm appellant’s conviction.

Upon the trial of this case and prior to the testimony of the intoximeter operator, appellant objected to the admission of the breath test results on the basis of an insufficient foundation; appellant argued that the intoximeter operator’s prior trial testimony showed that she was not trained in the processes of the machine and that only an area supervisor could lay the proper foundation that the breath tests were performed “on a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order” pursuant to OCGA § 40-6-392 (a) (1) (A). Appellant then requested an opportunity to question the intoximeter operator outside the presence of the jury in order to show that she was not able to lay such a foundation: “The thing I’m concerned with is I won’t get to ask her any questions unless I’m allowed to ask them to her in a hearing outside of the presence of the jury in which I can ferret out her lack of knowledge and the fact that she simply relies on whatever the area supervisor does on the machine.”

The trial court denied the motion for a hearing outside the presence of the jury so that defense counsel might “ferret out” the operator’s lack of knowledge. The trial court instructed the defense attorney that if he had objection to the foundation laid by the state for the admission of the breath test results, he should register such objection contemporaneously with the alleged deficiency. The trial court refused to base any ruling regarding the foundation for the tests’ admissibility on speculation or upon previous trial testimony: ‘You’re asking me to pass on something I haven’t heard and you haven’t objected. . . . The objection based on what this next witness is going to say is deferred until I hear the evidence.”

Thereafter, the intoximeter operator testified that she was trained and certified by the Georgia Bureau of Investigation (“GBI”) to operate the Intoxilyzer 5000. She testified that her GBI operator’s certificate hung on the wall to the left of the machine, and that she had operated the machine for four years prior to appellant’s tests. The operator explained the steps that are taken prior to and during a breath test. She testified that the machine was working properly, the machine did not appear to have any parts missing during the tests, the machine conducted a self-diagnostic test which did not reveal any problems, and the machine would have indicated any malfunctions, if there had been any. Further, the intoximeter operator testified that she operated the machine during appellant’s tests as she had been trained by the GBI, i.e., pursuant to GBI methods.

Only one objection was registered by appellant during the state’s examination of the operator: “Objection, Your Honor. She’s not qualified to answer that [whether the machine appeared to be working properly] since she’s not an area supervisor.” The trial court overruled the objection.

During cross-examination, appellant established that the intoximeter operator was not certified to service the machine or to check its calibration; that she had no tools to service the machine or to calibrate the machine; that the Intoxilyzer 5000 is self-diagnostic; and that the extent of the operator’s knowledge of how the Intoxilyzer works is that she pushes a button, “the person blows, and a chart comes out.” Held:

1. We are aware of no requirement that secondary evidence, such as the foundation for admissibility of chemical test results, be laid outside the presence of the jury; the contemporaneous objection rule applies when presenting such preliminary, foundational evidence. See, e.g., Sharpe v. Dept. of Transp., 267 Ga. 267, 268 (476 SE2d 722) (1996) ; Geoffrion v. State, 224 Ga. App. 775, 779 (6) (482 SE2d 450) (1997) .

In any event, appellant’s grounds for a hearing outside the presence of a jury were without merit because: (a) testimony from an area supervisor is not required to establish a foundation for the admission of chemical test results; and (b) appellant’s attempts to “ferret out” the lack of knowledge on the part of the operator went to the weight to be given the tests, not their admissibility. Gidey v. State, 228 Ga. App. 250, 251-252 (491 SE2d 406) (1997); see also Lattarulo v. State, 261 Ga. 124, 126 (3) (401 SE2d 516) (1991); Walker v. State, 204 Ga. App. 559, 562 (4) (420 SE2d 17) (1992). That an operator may not know how or why an intoximeter machine works does not impact on foundational testimony that “the machine functioned properly when [s]he tested [appellant] and did not appear to have any pieces or components missing. The machine also appeared to be in good working order, and the diagnostic tests the machine conducted on itself before the breath analysis revealed no problems.” Gidey, supra at 251-252.

2. Encompassed within appellant’s enumeration of error is the contention that the trial court erred in denying a motion for mistrial made by appellant at the close of the state’s evidence. To the extent that such contention impacts on Division 1 herein and the proper admission of appellant’s breath test results, we will address it.

At the close of the state’s evidence, appellant moved for a directed verdict as to the DUI — “per se” count, Count 2, on the grounds that the intoximeter operator could not testify that the machine was working properly and only an area supervisor could so testify. On an entirely different basis than that argued by the defense, the trial court directed a verdict as to the DUI — “per se” count, finding sua sponte that: (1) the state failed to prove that the intoximeter operator had a “permit” to operate the machine; and (2) the state failed to prove that the operator used methods approved by the GBI during the tests.

Decided March 11, 1998

William C. Head, for appellant.

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

Following the trial court’s decision, appellant made a motion for mistrial as to the DUI — “less safe driver” count, Count 1. Appellant asserted that since the breath test results were rendered inadmissible by the trial court’s decision, the results were improperly before the jury and would impact prejudicially upon the jury’s consideration of Count 1. The trial court denied the motion and offered to give curative instructions as to the test results. The appellant refused such instructions. We find that:

(a) “[A]ppellant refused the offer of curative instructions, thus making it impossible for the trial court to repair the alleged prejudice and waiving the grounds to assert mistrial error on appeal.” Battle v. State, 195 Ga. App. 542, 544 (394 SE2d 788) (1990); Williamson v. State, 188 Ga. App. 307 (372 SE2d 685) (1988); and

(b) We do not agree that the jury’s consideration of the test results was error. ‘We find the State sufficiently complied with its burden to prove the test result in this case was valid under OCGA § 40-6-392 (a) (1) (A). The State sufficiently proved by competent circumstantial evidence that the test was performed ‘according to methods approved by the [GBI],’ and ‘on a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order,’ and ‘by an individual possessing a valid permit issued by the [GBI] for this purpose.’ ” (Punctuation omitted.) Bazemore v. State, 225 Ga. App. 741, 743-744 (484 SE2d 673) (1997); Gidey, supra at 251-252. Thus, there was no error in the jury’s consideration of the breath test evidence, because the evidence was admissible. Accordingly, appellant’s motion for mistrial was properly denied. A trial court’s ruling, right for any reason, will be affirmed. Stovall v. State, 216 Ga. App. 138, 139 (1) (453 SE2d 110) (1995).

Judgment affirmed.

McMurray, P. J, and Blackburn, J., concur.

       Appellant was also charged with DUI — “per se" (.10 or above) and with following too closely. Upon motion at the close of the state’s evidence, the trial court directed verdicts as to these counts.

       This is the second time this case has been before us. We reversed appellant’s prior conviction based upon the state’s failure to lay the proper foundation for the admission of the Intoxilyzer 5000 certificates. Daniel v. State, 227 Ga. App. 92 (488 SE2d 129) (1997).


text:
    A98A0805.
    FITZGERALD v. DEPARTMENT OF HUMAN RESOURCES.
    (497 SE2d 659)
   Eldridge, Judge.

On March 4,1997, the Department of Human Resources (“DHR”) filed a petition pursuant to OCGA § 19-11-12 in the Superior Court of Houston County, which was the county of residence of appellant-defendant Randall Fitzgerald, and requested that the superior court adopt the agency recommendation that was attached to the petition as an order of the court and to enter an income deduction order pursuant to OCGA § 19-6-30 et seq. The attached agency recommendation recommended that the child support order issued by the Superior Court of Bibb County in Civil Action No. 91CV82812 be modified to increase the amount of child support to be paid by Fitzgerald. Each defendant was served by mail. Fitzgerald filed a timely written objection.

The case was heard by the superior court de novo on September 17,1997. On September 23,1997, the trial judge entered: (1) an order modifying the previous order entered in Bibb County Superior Court, which increased the amount of child support owed by Randall Fitzgerald to the amount in the agency’s recommendation; and (2) an income deduction order pursuant thereto. Fitzgerald filed a direct appeal from the entry of these orders. DHR filed a motion to dismiss Fitzgerald’s appeal for failure to comply. with the discretionary appeal procedures of OCGA § 5-6-35.

An appeal from the superior court’s order under OCGA § 19-11-12 (c) (4) modifying the amount of Fitzgerald’s child support obligation must be brought as a discretionary appeal under both OCGA § 5-6-35 (a) (1) (appeals from a local administrative agency and lower courts by de novo review) and OCGA § 5-6-35 (a) (2) (appeals from “divorce, alimony, child custody, and other domestic relations cases”). See Dept. of Human Resources v. Siggers, 219 Ga. App. 1 (463 SE2d 544) (1995); Dept. of Human Resources v. Anderson, 218 Ga. App. 528 (462 SE2d 439) (1995); see also Smoak v. Dept. of Human Resources, 221 Ga. App. 257 (471 SE2d 60) (1996). “Compliance with the discretionary appeals procedure is jurisdictional. Fabe v. Floyd, 199 Ga. App. 322, 332 (405 SE2d 265) [(1991)].” Smoak v. Dept. of Human Resources, supra at 257. Therefore, Fitzgerald’s failure to follow the discretionary appeal procedures of OCGA § 5-6-35 deprives this Court of jurisdiction, and Fitzgerald’s appeal must be dismissed.

Decided March 11, 1998.

Carpenter & Phillips, Jimmy R. Phillips, Jr., for appellant.

Kelly R. Burke, District Attorney, James F. Garnett, Assistant District Attorney, Thurbert E. Baker, Attorney General, Dennis R. Dunn, William C. Joy, Senior Assistant Attorneys General, Katherine S. Davis, Assistant Attorney General, for appellee.

Appeal dismissed.

McMurray, P. J., and Blackburn, J., concur.

       This is not an appeal from an action filed in the superior court to collect a debt due DHR under OCGA § 19-11-5 and requiring discretionary appeal procedures only when the judgment is $10,000 or less. See OCGA § 5-6-35 (a) (6); Dept. of Human Resources v. Johnson, 175 Ga. App. 610 (333 SE2d 845) (1985).


text:
    A97A1717.
    KITFIELD et al. v. HENDERSON, BLACK & GREENE et al.
    (498 SE2d 537)
   Andrews, Chief Judge.

David B. Kitfield, Inc. and David B. Kitfield (Kitfield) appeal from the trial court’s grant of summary judgment to Henderson, Black & Greene and Kenneth M. Hendricks (HBG). For the reasons which follow, we affirm the judgment of the trial court.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. . . .’’Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Accordingly, viewed in the light most favorable to Kitfield as nonmovant, the record shows that this case arose when HBG notified Kitfield, an independent contractor, that it was terminating him as its sales representative. HBG is a manufacturer of wood columns and building products, and Kitfield had been selling these products since 1963. Kitfield alleges that HBG could not fire him because in 1964, as a result of Kitfield’s efforts in converting HBG to a successful manufacturing operation, HBG gave Kitfield the right to act as its sales representative for life.

Kitfield claims his problems with HBG began when Kenneth Hendricks, the president of HBG, asked Kitfield if he would hire Hendricks’s son, Kent, and Kitfield complied. Kitfield states that from January 1992, when he hired Hendricks, until November 1993, when Hendricks resigned, he trained Hendricks in all aspects of his business. Kitfield states that he gave Hendricks information on sales techniques and customer lists and introduced Hendricks to all his customers and clients. Kitfield claims that after he was terminated as a representative of HBG and while Hendricks was still working for him, Hendricks, with the tacit approval of HBG, established a competing business to distribute HBG products in Kitfield’s own territory. When Hendricks resigned from Kitfield, Inc. in November 1993, and established his own business, Southland Marketing, Kitfield claims Hendricks took confidential and trade secret information with him and began wrongfully diverting Kitfield’s customers and potential customers to Southland Marketing.

Kitfield sued HBG and Kent Hendricks, claiming breach of contract, tortious interference with contractual relations, tortious interference with business relations, breach of fiduciary duty, defamation and libel, tortious actions to put Kitfield out of business, conversion, misappropriation of trade secrets, conspiracy, intentional infliction of emotional distress, and breach of contract to pay commissions. HBG filed a motion for summary judgment which the trial court granted. This' appeal followed.

1. In Counts 1 and 14, Kitfield alleges HBG breached its contract with him guaranteeing him a sales representative position for life. Kitfield states in his deposition that he was never an employee of HBG and was always an independent contractor with his own business. He admits he has never had anything in writing on the claimed lifetime contract. Nevertheless, Kitfield bases his claim on a conversation he had in 1964 with one of HBG’s founders, Black, who is now deceased. In addition, Kitfield’s wife testified in her deposition that she was present at the conversation with Black and also at a meeting a few years later when HBG’s vice-president, also now deceased, told her that if anything happened to her husband, the lifetime contract would go to her.

HBG argues that under Georgia’s Dead Man’s Statute, these conversations are inadmissible as evidence. Although OCGA § 24-9-1 abolished the Dead Man’s Statute for transactions occurring on or after July 1, 1979, it provided that former Code § 38-1603 (3) would still apply to transactions or occurrences which took place before July 1, 1979. Brown v. Williams, 259 Ga. 6 (375 SE2d 835) (1989). Ga. Code Ann. § 38-1603 (3) stated that in any suit instituted or defended by a corporation, “the opposite party shall not be admitted to testify in his own behalf to transactions or communications solely with a deceased or insane officer of the corporation.” Ga. Code Ann. § 38-1603 (3).

Kitfield argues that the evidence is still admissible because Mrs. Kitfield also testified as to the conversations and she is not an “opposite party” under the statute. We disagree. As HBG pointed out, Ga. Code Ann. § 38-1603 (4) provides: “Where a person not a party, but a person interested in the result of the suit, shall be offered as a witness, he shall not be competent to testify, if as a party to the cause he would for any cause be incompetent.” Kitfield, Inc. is a party to this suit, and Mrs. Kitfield, as an officer and employee, was also an agent of Kitfield, Inc. Accordingly, if she were named as a party in the case, she would be incompetent to testify; therefore, her testimony cannot be considered. Brock v. Gerlach, 229 Ga. 295 (191 SE2d 38) (1972). As there is no competent evidence in the record that HBG gave Kitfield a contract for life, the trial court did not err in granting summary judgment to HBG on the contract claims.

2. Next, Kitfield claims the trial court erred in granting HBG summary judgment on the claims of defamation and libel. After HBG terminated Kitfield, HBG notified Kitfield’s customers that he had retired from the business of selling building products. HBG admits Kitfield did not retire, but claims that it was making a gesture of courtesy towards a long-time business associate in announcing Kitfield had “retired” instead of telling Kitfield’s customers that HBG had fired him.

The Code defines libel as “a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule.” OCGA § 51-5-1. We fail to see how announcing to Kitfield’s customers that he had retired could rise to the level of “exposing him to public hatred, contempt, or ridicule.” Moreover, we agree with HBG that the statements were privileged in that they were made with a good faith intent on the part of HBG to protect its interest with its customers. OCGA § 51-5-7 (3). In order to overcome this privilege, Kitfield must show the statement was made with actual malice. OCGA § 51-5-5; Williams v. Cook, 192 Ga. App. 811, 812 (386 SE2d 665) (1989). We find no evidence of actual malice in the record.

3. Next, Kitfield claims the trial court erred in granting summary judgment to HBG on Kitfield’s claim for tortious interference with contractual relations. As we have already determined that Kitfield is unable to show the existence of a contract between him and HBG, we do not address the claim for tortious interference with contractual relations except as to Kitfield’s claim that HBG tortiously interfered with the employment contract between Kent Hendricks and Kitfield. Kitfield claims that there is a jury question as to whether HBG “wrongfully solicited the employment of Kent Hendricks.”

To establish a cause of action for tortious interference with business or contractual relations, a plaintiff must show that the defendant (1) acted improperly and without privilege, (2) purposely and with malice with the intent to injure, (3) induced a third party or parties not to continue a business relationship with the plaintiff, and (4) for which the plaintiff suffered some financial injury. NationsBank v. SouthTrust Bank, 226 Ga. App. 888, 892 (487 SE2d 701) (1997). “The privilege of fair competition protects the actions of one who . . . solicits a competitor’s at will employees provided the standards set forth in Restatement of Torts, § 768 are followed. Those standards are: (1) the relation concerns a matter involved in the competition between the actor and the competitor; (2) the actor does not use improper means; (3) the actor does not intend thereby to create or continue" an illegal restraint of competition; and (4) the actor’s purpose is at least in part to advance its interests in competition with the other.” (Citations, punctuation and footnote omitted.) Contractors’Bldg. Supply v. Gwinnett Sash & Door, 199 Ga. App. 38, 39 (403 SE2d 844) (1991), disapproved on other grounds, Porter v. Felker, 261 Ga. 421 (405 SE2d 31) (1991). See also American Bldgs. Co. v. Pascoe Bldg. Systems, 260 Ga. 346, 348 (392 SE2d 860) (1990). “Such wrongful means generally involve predatory tactics such as physical violence, fraud or misrepresentation, defamation, use of confidential information, abusive civil suits, and unwarranted criminal prosecutions.” Id. at 349.

Here, the only evidence Kitfield cites to in support of this claim are conversations between Kenneth Hendricks and his son Kent in which the father told Kent about firing Kitfield and in which Kent stated he would like to be considered for the job of representing HBG. Kent’s father admitted to discussing plans for the future with his son and also informing him that HBG would be terminating Kitfield as their sales representative. These were personal conversations between a father and son, and Kitfield cannot show that Kenneth Hendricks acted improperly or without privilege in talking to his son, or that these conversations were malicious or carried on with the intent to injure Kitfield. Accordingly, this evidence does not establish any of the elements of a cause of action for tortious interference with an employment relationship. Nationwide Advertising Svc. v. Thompson Recruitment &c., 183 Ga. App. 678, 679-680 (359 SE2d 737) (1987); see also Contractors’ Bldg. Supply, supra at 39. Moreover, before HBG terminated Kitfield, Kent Hendricks testified that he told Kitfield he needed more money and asked for a percentage of the sales. When Kitfield refused, Hendricks said he began looking at other, more lucrative opportunities. There was no issue of fact to go to a jury on this claim of tortious interference with contractual relations.

4. Next, Kitfield claims there was sufficient evidence to create a jury issue on his claim of tortious interference with business relations. As previously stated, “[t]o establish tortious interference with a business relationship, [Kitfield] must show that [Hendricks and HBG] (1) acted improperly and without privilege, (2) purposely and with malice with the intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with [Kitfield], and (4) for which [Kitfield] suffered some financial injury.” (Punctuation omitted.) Beeson v. Crouch, 227 Ga. App. 578, 582 (490 SE2d 118) (1997).

Kitfield cites to no case law in support of his argument that Hendricks and HBG tortiously interfered with Kitfield’s business relationships with his other customers, and we find none. As discussed in the preceding enumerations, we find no improper conduct on the part of Kent Hendricks and HBG. HBG had an absolute right to terminate Kitfield and Hendricks had an absolute right to set up a business in competition with Kitfield’s. There can be no liability for interference with business relations when the alleged interference is caused by the exercise of an absolute right. West Va. Glass &c. Co. v. Guice & Walshe, Inc., 170 Ga. App. 556, 559 (317 SE2d 592) (1984); J. C. Penney Co. v. Davis & Davis, Inc., 158 Ga. App. 169, 171 (279 SE2d 461) (1981).

5. Kitfield claims the trial court erred in granting summary judgment to HBG on his claims of conversion and misappropriation of trade secrets. OCGA § 16-8-4 (a) provides that a person commits theft by conversion when, after having lawfully obtained the property of another, he knowingly converts this property to his own use in violation of an agreement or legal obligation. Kitfield claims that Kent Hendricks converted and misappropriated confidential information while he worked for Kitfield. Kitfield argues that while Hendricks worked for him, Hendricks “developed various marketing tools and sales analyses and accumulated other information relating to Kitfield’s customers” and entered this information on his personal computer.

This enumeration of error is without merit. Kitfield himself admitted in his deposition that HBG had these same customer lists. In fact, when asked ‘You have no evidence that HBG obtained any information whatsoever that it did not already have; correct?” Kitfield answered, “I have no evidence, that’s correct.” Q: “[T]hey had the contact names, they had the customers; correct?” A: “Right.”

In order to recover for misappropriation of an idea, one must establish a property right or protectable interest in the work product. Wilson v. Barton & Ludwig, Inc., 163 Ga. App. 721, 723 (296 SE2d 74) (1982). “A trade secret is not entitled to the status of a property right if it pertains to matters which are generally known in the trade.” (Punctuation omitted.) Id. As Kitfield had made no effort to protect this information, he cannot claim misappropriation of the customer lists. Smith v. Mid-State Nurses, 261 Ga. 208 (403 SE2d 789) (1991).

Moreover, any personal or subjective knowledge or other skills gained by Hendricks while working for Kitfield do not come under the Trade Secrets Act and their use may be prohibited only through restrictive covenants in an employment contract. DeGiorgio v. Megabyte Intl., 266 Ga. 539, 540 (468 SE2d 367) (1996); Outside Carpets v. Indus. Rug Co., 228 Ga. 263 (185 SE2d 65) (1971). There was no covenant not to compete in Kent Hendricks’s employment contract.

6. Next, Kitfield claims the trial court erred in granting HBG summary judgment on the claim of intentional infliction of emotional distress. We find no error.

The mere termination of employment does not authorize a recovery for intentional infliction of emotional distress. Borden v. Johnson, 196 Ga. App. 288, 290-291 (395 SE2d 628) (1990). In order to sustain a cause of action, the defendant’s actions must have been so terrifying as naturally to humiliate, embarrass or frighten the plaintiff. Moses v. Prudential Ins. Co., 187 Ga. App. 222, 224 (369 SE2d 541) (1988). Kitfield presents absolutely no evidence of any actions by HBG or Hendricks that were even remotely capable of being so terrifying or so insulting as to humiliate, embarrass or frighten him. Id. at 225. The only evidence on this issue cited to us is Kitfield’s statement that he had been to see a doctor because he felt “tense” and “stiff.” However, Kitfield also admitted to being 72 years old and having arthritis. There is no merit to this enumeration.

7. Kitfield also claimed there was a breach of fiduciary duty by Kent Hendricks while he was working for Kitfield. Kitfield cites us to no evidence in the record in support of this claim, merely arguing, conclusory allegations in his appellate brief. In any event, an employee who is making plans to enter a competing business while still employed does not breach a fiduciary duty unless he fails to fulfill his assigned duties. Nilan’s Alley v. Ginsburg, 208 Ga. App. 145 (430 SE2d 368) (1993). Kent Hendricks testified in his deposition that he carried out his duties up until the time he resigned from Kitfield, Inc. While Kitfield alleges that Kent Hendricks was planning to take the HBG account from Kitfield and start a competing business, he does not show in what manner Hendricks did not carry out his assigned work. An employee is entitled to make arrangements to set up a rival business while still employed. E. D. Lacey Mills, Inc. v. Keith, 183 Ga. App. 357, 362-363 (359 SE2d 148) (1987).

8. The trial court properly granted summary judgment to HBG on Kitfield’s claims of conspiracy and tortious actions to put him out of business. In light of our holdings above, we need not address this enumeration of error. This count is merely a restatement of the claim in the tortious interference counts described above. Rome Indus, v. Jonsson, 202 Ga. App. 682, 684 (415 SE2d 651) (1992); U3S Corp. of America v. Parker, 202 Ga. App. 374, 379 (414 SE2d 513) (1991).

Decided February 26, 1998

Reconsideration denied March 12, 1998

Shapiro, Fussell, Wedge, Smotherman & Martin, Richard A. Kaye, Adam R. Gaslowitz, for appellants.

Schulten, Ward & Turner, W. Scott Schulten, Kevin L. Ward, David L. Turner, for appellees.

Judgment affirmed.

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

       Of course, under Georgia law, “(a) contract for permanent employment has been held to be a contract to continue indefinitely, and terminable at any time by either of the parties.” Ely v. Stratoflex, 132 Ga. App. 569, 571 (208 SE2d 583) (1974). In this case, however, there is some evidence that Alabama substantive law applies to the employment contract. We need not reach this issue in fight of our determination that there is no admissible evidence of a lifetime contract.

       Kitfield was in his early seventies at the time.


author: McMURRAY, Presiding Judge.

text:
    A97A2386.
    PRYOR v. THE STATE. PRESSLEY v. THE STATE. KELLY v. THE STATE.
    A97A2387.
    A97A2388.
    (497 SE2d 80S)
   McMURRAY, Presiding Judge.

Defendants Pryor, Pressley and Kelly were jointly indicted for the armed robberies of Tom Tolksdorf and Lance Simmons (“the victims”). The evidence adduced at a joint jury trial reveals the following: At about 12:30 in the morning on November 4, 1995, the victims were at a carwash working on Simmons’ car when three masked men appeared and ordered them to “ ‘[g]ive it up and be still.’ ” Although masks covered the assailants’ faces, both Tolksdorf and Simmons noticed that one assailant was white. Tom Tolksdorf noticed that the other assailants were African-Americans.

While the white assailant subdued the victims at gunpoint, the African-Americans searched the victims and seized money and other effects from their pockets. When the robbery was over, the white robber removed the keys from Simmons’ car, pitched the keys into a nearby parking lot and fled with his accomplices. Simmons retrieved the keys, returned to his car and chased the robbers — all while keeping sight of the assailants’ track. During the chase, Simmons flagged down a patrolling law enforcement officer and hollered for assistance. The officer responded and apprehended the suspects. Police officers found masks and the victims’ driver’s licenses in the robbers’ getaway car.

The jury found the defendants guilty of the crimes charged. Defendant Pryor appeals in Case No. A97A2386; defendant Pressley appeals in Case No. A97A2387 and defendant Kelly appeals in Case No. A97A2388. Held:

Case No. A97A2386

1. Defendant Pryor contends, in his first two enumerations of error, that the trial court erred in denying his challenge to the array because “the [trial] court clerk put a jury panel upon [him] that did not fairly represent black citizens in Henry County, Georgia.” This assertion is without merit because de facto discrimination is not shown by evidence that a single jury panel contained a disproportionately small percentage of African-Americans compared to the population at large. Scudiere v. State, 130 Ga. App. 477, 481 (12), 482 (203 SE2d 581).

2. Our holding in Division 1, considering the evidentiary basis of defendant Pryor’s challenge to the array, renders it unnecessary to address his contention that the “trial court erred in denying [him] an evidentiary hearing on his timely challenge to the array during his criminal trial.”

3. Defendant Pryor finally contends that the State failed to prove venue. This assertion is also without merit. Simmons testified that the crimes occurred in Henry County. This evidence was sufficient to authorize the jury’s finding, beyond a reasonable doubt, that the crimes charged were committed in Henry County, Georgia, as charged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). See Nihart v. State, 227 Ga. App. 272, 277 (2) (488 SE2d 740), and cits.

Case No. A97A2387

4. In three enumerations of error, defendant Pressley contends the trial court erred in admitting the victims’ in-court identification testimony. These enumerations of error are not supported by the record. Neither victim identified defendant Pressley as a perpetrator of the crimes charged. The victims testified that they could not identify the assailants because masks covered the robbers’ faces. The victims merely identified defendant Pressley as one of the men apprehended shortly after commission of the crimes charged.

Case No. A97A2388

5. Defendant Kelly first contends the trial court erred in admitting a ski mask and a hood police officers found in the robbers’ getaway car, pertinently arguing that the State failed to authenticate these items via a proper chain of custody. This argument is without merit. Unlike fungible items, distinct physical objects which are identified upon observation require no custodial proof for admission into evidence at trial. Turner v. State, 178 Ga. App. 888 (1) (b) (345 SE2d 99). Because the ski mask and hood seized from the robbers’ getaway car were distinct physical objects which were identified and differentiated by an officer’s senses on observation, the State was not required to establish a chain of custody for admission of these items into evidence at trial. Drake v. State, 252 Ga. 472, 475 (6) (314 SE2d 230).

Decided February 13, 1998

Reconsideration denied March 12, 1998

Smith, Furr, Schroeder & O’Connell, B. J. Smith, R. Edward Furr, Jr., Gregory Z. Schroeder, John J. O’Connell, Jr., for appellant (case no. A97A2386).

James W. Bradley, for appellant (case no. A97A2387).

William D. Patten, Jr., for appellant (case no. A97A2388).

6. Because the victim, Tom Tolksdorf, admitted at trial that he mistakenly misidentified the trade name of a service station near the crime scene in a written statement he provided the police shortly after the crimes charged, the trial court did not err in refusing to admit this witness’ written statement into evidence at trial for impeachment purposes. Dickey v. State, 240 Ga. 634, 638 (3), 639 (242 SE2d 55). Further, Tom Tolksdorf’s admission that he inadvertently misidentified the service station’s trade name in his written statement to the police did not authorize a charge on impeachment. See Woityra v. State, 213 Ga. App. 89 (1) (443 SE2d 867). And even if Tolksdorf’s admission had supported a charge on impeachment, defendant waived his right to such a charge by failing to file a timely written request to charge on the subject of impeachment. Wallace v. State, 216 Ga. App. 718, 720 (4) (455 SE2d 615). Defendant Kelly’s second and third enumerations of error are thus without merit.

7. Defendant Kelly contends his testimony that he was an unwilling participant in the armed robberies defeats the jury’s finding that he is guilty of the crimes charged beyond a reasonable doubt. This assertion is without merit.

The victims’ testimony regarding the. robbers’ joint participation in the crimes charged, as well as the victims’ testimony regarding defendant Kelly’s apprehension shortly after the crimes charged, contradicts defendant Kelly’s claim of duress and authorizes the jury’s finding that defendant Kelly is guilty, beyond a reasonable doubt, of the crimes charged. Jackson v. Virginia, 443 U. S. 307, supra; Belt v. State, 225 Ga. App. 813, 814 (1) (485 SE2d 39).

Judgments affirmed.

Beasley and Smith, JJ, concur.

Tommy K. Floyd, District Attorney, James L. Wright III, Assistant District Attorney, for appellee.


author: Smith, Judge.

text:
    A97A2531.
    CRISP COUNTY SCHOOL DISTRICT et al. v. PHEIL et al.
    (498 SE2d 134)
   Smith, Judge.

This interlocutory appeal involves a claim under the Federal Rehabilitation Act of 1973, 29 USC § 794, arising out of the sudden collapse and death of Jessica Pheil from a pulmonary embolism, approximately one week after she fell on a staircase at Crisp Comity High School. Her parents brought this action against the Crisp County School District, the Crisp County Board of Education, and four individuals who had served as superintendent of schools or principal of the high school. Their claims were based in negligence and nuisance, alleging that defendants removed a handrail from the staircase, failed to allow the students sufficient time to change classes, and violated the Rehabilitation Act by failing to accommodate Jessica’s disability.

Defendants moved for summary judgment, asserting among other grounds that sovereign and official immunity act as a complete bar to the Pheils’ claims against the school district and the individuals sued in their official capacity. In opposition to the motion, the Pheils did not respond directly to defendants’ contentions but relied entirely on the Rehabilitation Act, apparently contending that state immunity is inapplicable to such claims. The trial court denied summary judgment, finding genuine issues of fact as to whether Jessica’s alleged disability contributed to her death and whether defendants failed to comply with the Rehabilitation Act. The trial court also found that OCGA § 51-1-20 does not provide sovereign immunity for claims under the Act. We do not reach the latter issue because the Pheils have failed to show the essential elements of a claim under the Act. The trial court therefore erred in denying defendants’ motion for summary judgment, and we reverse.

The tragic events of this case began on Thursday, December 5, 1991, when Jessica Pheil fell on a staircase at Crisp County High School and suffered bruises to her legs. She was treated by her doctor, was released to return to school the following Monday, and attended school during the following week. But on the evening of Friday, December 12, she suddenly collapsed and died at home of a pulmonary embolism, allegedly caused by the fall one week earlier. The Pheils contend the fall was caused by the absence of a handrail and by the school’s decision to allow students only five minutes to change classes, forcing them to hurry and bump one another in the halls.

1. It is well established that, in the absence of some special circumstance, claims against a public school district and its officials in their official capacity are barred by sovereign immunity. Ga. Const, of 1983, Art. I, Sec. II, Par. IX; Hennessy v. Webb, 245 Ga. 329 (264 SE2d 878) (1981); Holloway v. Dougherty County School Sys., 157 Ga. App. 251, 252-253 (277 SE2d 251) (1981). This immunity applies equally to claims in negligence and in nuisance. Kordares v. Gwinnett County, 220 Ga. App. 848, 850 (470 SE2d 479) (1996). School districts and boards are entitled to sovereign immunity, and their employees are entitled to official immunity from personal liability for injuries sustained as a result of the negligent performance of discretionary official acts. Crisp County School Sys. v. Brown, 226 Ga. App. 800, 802-803 (2) (487 SE2d 512) (1997). “[MJonitoring, supervising, and controlling the activities of students is a discretionary action protected by the doctrine of official immunity. [Cits.]” Perkins v. Morgan County School Dist., 222 Ga. App. 831, 835 (476 SE2d 592) (1996). “The general task imposed on [a principal] to monitor, supervise, and control the movement of large numbers of students during a change in classes . . . necessarily required the exercise of some discretion.” Guthrie v. Irons, 211 Ga. App. 502, 506 (439 SE2d 732) (1993), disapproved on other grounds, Gilbert v. Richardson, 264 Ga. 744, 750 (452 SE2d 476) (1994).

In their original complaint, the Pheils alleged that the handrails had been removed from the stairwell in violation of certain unspecified building codes. But defendants point out that the Pheils relied entirely on the Rehabilitation Act in their reply to defendants’ motion for summary judgment below, and did not address any of defendants’ contentions concerning sovereign immunity for discretionary acts. Under Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), once a defendant pierces a plaintiff’s pleadings as to any element of the case, the plaintiff must respond with evidence to establish a jury issue on that element or suffer judgment.

But assuming without deciding that the Pheils preserved this issue for appeal, and assuming without deciding that the removal or failure to install a handrail would constitute a ministerial act outside the scope of the school administrators’ official immunity, see Holloway, supra, summary judgment was nevertheless demanded under the undisputed facts in this case.

While there was a missing handrail on the stairwell, the undisputed eyewitness testimony shows that it had no causal relation to Jessica’s fall. Students who saw the incident uniformly testified that the missing handrail was on the opposite side of the stairs from Jessica, who was walking next to a center handrail that was in place. Jessica was talking to a friend who was walking by her side; this friend was between Jessica and the missing handrail, as were a number of other students passing in the opposite direction. Jessica was not holding onto or using the available handrail at the time of her fall.

Under these circumstances, the issue of defendants’ liability for a ministerial act is foreclosed by the undisputed facts.

2. The Pheils attempt to avoid the scope of Georgia’s sovereign immunity law by making a claim under the Federal Rehabilitation Act of 1973, 29 USC § 794. The Act provides in pertinent part: “No otherwise qualified individual with a disability in the United States, as defined in section 706 (8) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 USC § 794 (a).

To state a claim under the Act, a claimant must first show that she is a “qualified individual with a disability,” in other words (1) that she has a disability, (2) that she can meet the essential functions as a student despite her disability or with “reasonable accommodation” for her disability, and (3) that the school discriminated against her on account of her disability. Failure to provide reasonable accommodation for a known disability may constitute discrimination. Ellis v. Morehouse School of Medicine, 925 FSupp. 1529, 1540 (N.D. Ga. 1996). A claimant in a private cause of action for damages under the Act must show not only that a school district has refused to provide reasonable accommodations for a handicapped student; she must also show intentional discrimination by the defendants. Scokin v. State of Texas, 723 F2d 432, 440-441 (5th Cir. 1984). Most importantly, “an academic institution can be expected to respond only to what it knows (or is chargeable with knowing). ... A relevant aspect of this inquiry is whether the student ever put the . . . school on notice of [her] handicap by making ‘a sufficiently direct and specific request for special accommodations.’ [Cit.]” Wynne v. Tufts Univ. School of Medicine, 976 F2d 791, 795 (1st Cir. 1992).

The Pheils allege defendants violated the Rehabilitation Act by failing to accommodate Jessica’s disability. They allege defendants should have allowed her additional time to change classes or should have assigned her a locker located near her classrooms. But in order to show a claim under the Act they must support this general contention by showing the essential elements of their claim: (1) that Jessica had a disability that affected her capacity to negotiate the school hallways and stairs in the time allowed; (2) that the school was put on notice of that disability; (3) that the school intentionally refused a reasonable accommodation for that disability; and, (4) if all these facts are shown, that a causal connection exists between the school’s refusal to accommodate the disability and the injury. Ellis, Scokin, and Wynne, supra.

“In response to a properly supported motion for summary judgment which pierces the pleadings, plaintiffs may not stand upon their allegations, but must come forward with evidence to contravene defendants’ proof or suffer judgment. Lau’s Corp. v. Haskins, [supra].Bowden v. Pryor, 215 Ga. App. 351, 352 (450 SE2d 845) (1994). In this case, the Pheils have failed to show the necessary elements of a Rehabilitation Act claim.

(a) The only disabilities demonstrated in the record are Jessica’s allergies and resulting migraine headaches. No evidence was presented of any other disability. Moreover, the Pheils have not shown how allergies or headaches created any disability that would have caused difficulty in walking or negotiating stairs, thus requiring accommodation in the area of class changing time or locker location. When Jessica’s parents requested that the school evaluate Jessica’s status in light of her allergies and headaches, testing revealed that Jessica had no physical handicap and no mental disability or learning dysfunction. Her test scores were normal, although she was having some academic problems in one or two areas. No evidence was presented that she was suffering from allergies or headaches at the time of the fall, which occurred in December.

(b) The school was notified of Jessica’s difficulties with allergies and headaches. The Pheils requested accommodation in the areas of absence from school and making up work. But no evidence was presented that Jessica or her parents ever complained to the school of difficulties in moving from class to class, the location of her locker or classes, or time pressures in doing so. Mrs. Pheil acknowledged in her deposition that she did “not to my recollection” complain to the school about the time allowed for changing classes. The school principal testified positively that no such complaint was made by Jessica or anyone on her behalf.

In response to defendants’ summary judgment motion, Mrs. Pheil presented an affidavit stating that Jessica complained to her of difficulty in moving from class to class. The affidavit also states that the school was well aware of Jessica’s headaches and allergies. But this affidavit fails to connect these two facts by showing either the disability’s effect on Jessica’s ability to change classes or a request to the school for accommodation in changing classes. Mrs. Pheil did not testify that she ever notified the school that Jessica had difficulty in changing classes or that she requested an accommodation for Jessica in this area.

(c) There appears to be no dispute that the school accommodated Jessica on the only complaint of which the school was made aware: Jessica’s allergies and headaches, and her need because of them for accommodation in absences and making up missed work. School officials held a formal meeting with Mrs. Pheil, Jessica’s problems and possible solutions were discussed, and a plan was devised to accommodate her absences and make-up work. Mrs. Pheil acknowledged that she met with school officials and reached an agreement that the school would provide remedial help rather than placement in special education. Mrs. Pheil also acknowledged that the agreement was working out up until the time of Jessica’s death.

The Pheils appear to contend that once a school is made aware of any disability, a child becomes generally classified as a “disabled child,” and the school is thereafter liable under the Rehabilitation Act for any harm that befalls the child, even if that harm is unrelated to the known disability but results from some other disability not disclosed to the school. This is not a correct statement of the law. The Rehabilitation Act clearly requires a claimant to demonstrate that a specific disability existed, that the school was put on notice of the disability by a direct and specific request for special accommodations, and that the school refused a reasonable accommodation. The Pheils have failed to establish these necessary elements of a claim under the Act, and the trial court therefore erred in denying summary judgment to appellants.

Judgment reversed.

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

Decided February 27, 1998

Reconsideration denied March 12, 1998

Ellis, Easterlin, Peagler, Gatewood & Skipper, Benjamin F. Easterlin IV, George M. Peagler, Jr., for appellants.

Edward W. Clary, for appellees.

       The Pheils do not contend that the principal’s decision regarding the amount of time allowed to change class was ministerial in nature.

       The Pheils did not present any evidence or argument concerning a missing handrail in their brief or affidavits below, but relied entirely on the school’s class change time requirements and their contention that Jessica was pushed or jostled by another student due to the need to hurry between classes. The Pheils appear, albeit indirectly, to raise the issue of the handrail in an affidavit filed for the first time as an attachment to their response to appellants’ discretionary application, in which a non-eyewitness claims that Jessica later told her “she reached out to try and grab something to stop her fall, but there was nothing there for her to grab.” But this Court cannot consider an affidavit not part of the record below. Champion Mgmt. Assn. v. McGahee, 227 Ga. App. 895, 896 (2) (490 SE2d 215) (1997).

       On appeal, as on summary judgment below, the Pheils do not address and apparently concede the propriety of summary judgment absent a claim under the Rehabilitation Act.

       But such a statement, even if made, would have contradicted Mrs. Pheil’s deposition testimony that she did not recall complaining to the school regarding class changing times, and, if unexplained, would have been construed against her. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986).


text:
    A96A0966.
    ROBINSON v. KROGER COMPANY.
    (497 SE2d 679)
    Decided March 12, 1998.

      Fred J. Rushing, Jr., for appellant.

      Webb, Carlock, Copeland, Semler & Stair, Albert M. Yates III, Douglas A. Wilde, James R. Doyle II, for appellee.
   Smith, Judge.

In Robinson v. Kroger Co., 222 Ga. App. 711 (476 SE2d 29) (1996), we affirmed the judgment of the trial court granting summary judgment in favor of the Kroger Company. In Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997), the Supreme Court reversed our decision. Accordingly, the decision of this Court is vacated, the decision of the Supreme Court is made the decision of this Court, and the judgment of the trial court in favor of Kroger Company is reversed.

Judgment reversed.

Andrews, C. J., and Senior Appellate Judge Harold R. Banke concur.


author: McMurray, Presiding Judge.

text:
    A97A1846, A97A1847.
    GENERAL INSURANCE SERVICES, INC. et al. v. MARCOLA; and vice versa.
    (497 SE2d 275)
   McMurray, Presiding Judge.

Plaintiff Linda F. Marcóla £(k/a Linda Mobley brought this contract action against defendants General Insurance Services, Inc. (“GIS”) and its president, Karl Byers, alleging “On or about October of 1990, the Plaintiff agreed to sell and the defendants’ [sic] agreed to purchase from the Plaintiff a business known as Mobley Insurance Agency. The purchase price of said agency was Thirty Three Thousand Five Hundred Dollars ($33,500.00). The Defendant or Defendants have paid the approximate amount of $13,642.58 leaving an approximate balance of $19,857.42.” Plaintiff also sought $1,263.94 as the unpaid balance due for the contents of the office. By amendment, she further alleged that defendants “entered into an employment contract with the plaintiff ... for a period of 12 months . . . [whereby] plaintiff was to receive $1,000.00 per month as office manager.” Defendants denied the material allegations and counterclaimed for a return of all sums paid to plaintiff as the purchase price for Mobley Insurance Agency, alleging plaintiff had “breached and entirely denied . . . the benefit of said contract. . . .”

The case was tried before a jury which returned a verdict for plaintiff as to all the damages she sought. Defendant Karl Byers’ motion for judgment notwithstanding the verdict was granted while the motions of defendant GIS for judgment notwithstanding the verdict and for new trial were denied. In Case No. A97A1846, defendant GIS appeals from the judgment entered on the jury’s verdict. In Case No. A97A1847, plaintiff cross-appeals. Held:

Case No. A97A1846

1. Once a case has been submitted to the jury and a judgment rendered on its verdict, the denial of a summary judgment motion is a moot issue. White v. Lance H. Herndon, Inc., 203 Ga. App. 580 (1) (417 SE2d 383). Consequently, defendant’s first enumeration presents nothing for review.

2. In its second and third enumerations, defendant GIS contends the trial court erred in denying its motions for directed verdict and judgment notwithstanding the verdict and also for new trial, on the ground that plaintiff failed to prove the terms of her purchase and sale agreement and her contractual damages resulting from defendant’s failure to pay. We disagree.

(a) “Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. [Cits.]” Taylor v. Ga. Power Co., 136 Ga. App. 412, 413 (1) (221 SE2d 222). A directed verdict or j.n.o.v. should not be granted unless “there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. . . .” OCGA § 9-11-50 (a).

Attached to defendants’ answer and counterclaim is the written agreement between plaintiff and defendant GIS. Plaintiff identified “the contract that [she] and [defendant] Karl [Byers] signed together. . . .” During cross-examination, plaintiff affirmed she was “referring to this October 1990 contract we’ve been talking about saying that the purchase price he [sic] was paying you for [including] a figure here,. . . $13,642 and some odd [received], leaving an approximate balance [due] of $19,857.42.” Subject to the results of an audit, defendant GIS promised to pay plaintiff $33,500, calculated as “50 % of estimated commissions generated from October 1, 1989, to October 1, 1990, which amount is estimated to be $67,000.00. . . .” Thus, the existence of the sales agreement and its material terms were not matters of factual dispute. The evidence, including defendant’s cross-examination, made out a prima facie case of plaintiff’s damages for breach of the purchase and sale agreement. Whether defendant’s audit figures in support of its claim for offset were accurate and determined in good faith were questions for the jury. Consequently, the trial court did not err in denying defendant’s motion for directed verdict or j.n.o.v., on the ground that plaintiff failed to prove her damages for that claim.

(b) Relying on Beasley v. Paul, 223 Ga. App. 706 (1), 707 (478 SE2d 899), defendant GIS also argues that, even if the grant of a directed verdict may be precluded because there is evidence to support a verdict for the nonmovant plaintiff, nevertheless, a new trial is authorized because that verdict is contrary to or against the great weight of the evidence when viewed as a whole.

“No court except the trial court is vested with the authority to grant a new trial in a matter relating to the weight of the evidence. [Cit.] ‘The appellate courts are not vested with discretion in this regard as are . . . the trial courts.’ [Cit.]” Allstate Ins. Co. v. Brannon, 214 Ga. App. 300, 304 (5) (447 SE2d 666). See also OCGA § 13-6-4. “Thus, the only query [raised by defendant’s third enumeration] is whether the evidence supported the verdict. [Cits.]” Daniels v. Hartley, 120 Ga. App. 294 (170 SE2d 315). We have already determined the evidence is sufficient to support the plaintiff’s verdict for breach of the purchase and sale agreement. Consequently, this enumeration is without merit.

3. In its fifth enumeration, defendant GIS contends the trial court erred in giving the following jury instruction: “For purposes of determining whether or not a corporate entity was used to perpetuate a fraud a person commits fraud when that person makes a misrepresentation which is intended to deceive and which does deceive,” whereupon the trial court defined actual and constructive fraud and charged the elements of fraud in the inducement.

It is clear the jury was directed to consider solely the acts of defendant Karl Byers and not those of defendant GIS. Nothing in these instructions purports to authorize a verdict against defendant GIS on the basis of fraud in the inducement. We find no error.

4. Defendant GIS’s Request to Charge No. 13 sought credit toward the purchase price for payments made by defendants which “inured to the benefit of the Plaintiff, conferred value to her to the extent of the payment, or satisfied obligations she would have otherwise had to satisfy. . . .” The failure of the trial court to give this instruction is enumerated as error.

“A request to charge must embody a correct, applicable and complete statement of law, legal and perfect in form and adjusted to the pleadings and evidence; it must not be argumentative or seek an expression of opinion on the part of the court; and it must not be so phrased so as to have tendency to confuse and mislead the jury or to becloud the issues in the case. [Cits.]” Cohen v. Sapp, 110 Ga. App. 413, 415 (2) (138 SE2d 749), overruled on other grounds, Peppers v. Smith, 151 Ga. App. 680 (1), 681 (261 SE2d 427).

The trial court’s instruction on equitable recoupment did not itself adequately address whether defendants were entitled to any reduction of the purchase price for payments made by defendants as contemplated in paragraph 2 of the agreement sued upon. But the trial court did not err in failing to give defendant GIS’s request as drafted. The request failed to relate to the specified items for “amounts past due,” as contemplated in paragraph 2 of the agreement, and so was argumentative and misleading.

5. The seventh, eighth, and ninth enumerations complain of the denial of j.n.o.v. as to plaintiff’s claim for breach of an alleged employment contract. Defendant GIS argues the trial court erred in permitting plaintiff to amend her pleadings and to prove her employment contract with parol evidence. We disagree.

(a) “If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of the evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet the evidence.” OCGA § 9-11-15 (b). “ ‘The fact that [such amendment] involves a change in the nature of the cause of action, or the legal theory of the action, is immaterial so long as the opposing party has not been prejudiced in presenting his case. . . .’ [Cit.]” Hirsch’s v. Adams, 117 Ga. App. 847, 848 (1) (162 SE2d 243).

Here, defendant GIS did not request a continuance in order to meet the new evidence nor did it demonstrate to the trial court how it would be prejudiced. In our view, defendant GIS has failed to demonstrate how the trial court abused its broad discretion in permitting plaintiff to amend the complaint during trial to allege breach of an employment contract whereby plaintiff was to be paid $1,000 per month for 12 months to act as the GIS office manager. Abernethy v. Cates, 182 Ga. App. 456, 460 (8) (356 SE2d 62).

(b) Over defendant GIS’s objection that such a contract would be subject to the statute of frauds so that “hearsay would [not] be admissible to prove it,” the trial court permitted plaintiff to testify orally as to the terms of her written management contract. This evidentiary ruling is enumerated as error.

“Written evidence of a writing is considered of higher proof than oral evidence. In all cases where the parties have reduced their contract, agreement, or stipulation to writing and have assented thereto, such writing is the best evidence of the same.” OCGA § 24-5-4 (b). “The best evidence which exists of a writing sought to be proved shall be produced, unless its absence is satisfactorily accounted for” (Emphasis supplied.) OCGA § 24-5-4 (a). “In order to admit secondary evidence, it shall appear that the primary evidence for some sufficient cause is not accessible to the diligence of the party.” OCGA § 24-5-2.

“In Renner v. Bank of Columbia, 9 Wheat. (U. S.) 581, 596 (6 LE 140), the Supreme Court [of the United States] said: Tf the original (writing) is lost, by accident, and no fault is imputable to the party, it is sufficient (to present secondary evidence). . . . Every case of this kind must depend, in a great measure, upon its own circumstances. This rule of evidence must be so applied as to promote the ends of justice, and guard against fraud or imposition. If the circumstances will justify a well grounded belief, that the original paper is kept back by design, no secondary evidence ought to be admitted; but when no such suspicion attaches, and the paper is of that description that no doubt can arise as to the proof of its contents, there can be no danger in admitting the secondary evidence.’ [Cit.]” Jefferson Pilot Fire &c. Co. v. Prickett, 176 Ga. App. 810, 812 (338 SE2d 19). In the case sub judice, the existence of a separate contract for office management was confirmed during cross-examination of Tony Layson. Plaintiff testified this employment contract was in writing and signed by defendant GIS via defendant Byers but that defendant Byers failed or refused to give her a copy, despite her repeated demands. Finally, defendant Karl Byers told plaintiff that “it [the document] was lost and he [Karl Byers] couldn’t find it.” This is, in our view, a sufficient showing of non-fraudulent inaccessibility of the document to plaintiff’s diligence as to authorize the trial court to admit oral evidence of the terms of the contract. “[P]roof that one has made a diligent but vain effort to produce a lost or destroyed paper requires the admission of secondary evidence as to its contents.” Jefferson Pilot Fire &c. Co. v. Prickett, 176 Ga. App. 810, 814, supra.

(c) Plaintiff testified she was to receive $1,000 per month as office manager but that she had been paid only $2,000 in $500 installments..This was sufficient to make out a prima facie case for breach of the management contract. Consequently, the trial court’s denials of defendant GIS’s motions for directed verdict and j.n.o.v. were correct.

6. Defendant GIS’s tenth enumeration contends the trial court erred in admitting evidence of the subsequent resale of the insurance business by GIS to individuals named Layson and Teel. The stated objection at the time was: “I don’t know what it has to do with this case. There’s going to be enough for the jury to consider and worry about without worrying about the relationship between Layson and Teel and [defendant] Byers. I don’t know what that contract has to do with anything.”

“Such an objection is entirely too vague, ambiguous and general to constitute a proper objection. Hayes v. State, 36 Ga. App. 668, 669 (1e) (137 SE 860); Wilson v. McConnell, 36 Ga. App. 767 (1b) (138 SE 244).” Glaze v. Bailey, 130 Ga. App. 189, 191 (4) (202 SE2d 708).

Case No. A97A1847

7. In this cross-appeal, plaintiff enumerates the grant of j.n.o.v. to defendant Karl Byers individually. She argues she presented sufficient evidence of fraud to pierce the corporate veil and hold defendant Byers personally responsible.

“ TT]he corporation is prima facie a distinct legal entity with rights and liabilities which are separate from those of [its shareholders].’ Midtown Properties, Inc. v. Geo. F. Richardson, 139 Ga. App. 182, 185 (228 SE2d 303).” Jones v. Adamson’s, Inc., 147 Ga. App. 282, 283 (4) (248 SE2d 514). “ ‘(O)ne who deals with a corporation as such an entity cannot, in the absence of fraud, deny the legality of the corporate existence for the purpose of holding the owner liable.’ Lamas v. Baldwin, 140 Ga. App. 37, 40 (230 SE2d 13).” Williams Plaza v. Sedgefield Sportswear &c., 164 Ga. App. 720, 723 (297 SE2d 342).

In support of her contention, plaintiff presented evidence that defendant Karl Byers agreed to purchase plaintiff’s business while concealing from her his intent to transfer his interest immediately to the third parties, Layson and Teel, to whom plaintiff had previously refused to sell her agency. These circumstances simply do not amount to any evidence of an intentional misrepresentation of material fact by defendant Karl Byers upon which plaintiff reasonably relied to her detriment, as would authorize piercing the corporate veil in order to hold defendant Karl Byers personally liable for the debts of defendant GIS. “There [being] nothing to demonstrate that the [defendant Corporation (GIS)] was a sham or that [defendant Karl Byers] made false or misleading representations to [plaintiff, there] is no evidence of fraud.” Hickman v. Hyzer, 261 Ga. 38, 40 (3), 41 (401 SE2d 738). The grant of j.n.o.v. to defendant Byers was correct.

Decided March 12, 1998.

Westmoreland, Patterson & Moseley, Stewart R. Brown, for appellants.

Michael A. Lewanski, for appellee.

Judgments affirmed.

Beasley and Smith, JJ, concur.