text:
    A00A2305.
    BARTLETT v. MAFFETT et al.
    (545 SE2d 329)
   Mikell, Judge.

Forrest Bartlett, as next friend for Adam Bartlett, brought this premises liability action against Roger Keith Maffett and Sue Maffett seeking damages for injuries Adam Bartlett sustained while playing in the Maffetts’ backyard. Bartlett appeals the trial court’s grant of summary judgment to the defendants. For reasons stated below, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the evidence shows that on November 14, 1998, Forrest Bartlett and his son, Adam, a minor, visited the Maffetts’ home. When Forrest and Adam Bartlett arrived, Sue Maffett and her daughter, Pam Ingram, along with Ingram’s two minor children, Charlie and Jamie Gruber, were in the backyard. The record does not reveal the ages of any of the minors. Forrest and Adam Bartlett walked up to Sue Maffett and Ingram in the backyard. Charlie Gruber drove up to the group on a four-wheeler, which was owned by the Maffetts and housed in a shed on their property. Sue Maffett told Charlie to park the four-wheeler in the shed and went into her house. Forrest Bartlett and Ingram joined Sue Maffett in the house, leaving the children outside. According to Sue Maffett’s affidavit, either Forrest Bartlett or Ingram told her that Charlie was riding Adam on the four-wheeler.

After parking the four-wheeler in the shed, Charlie Gruber and Adam Bartlett played with a chain hoist that hung from a rolling pulley that was attached to an I-beam. The pulley could be moved back and forth along the I-beam. One end of the I-beam had an endcap so that the pulley and chain hoist could not be rolled off that end of the I-beam. The other end of the I-beam lacked an endcap. Keith Maffett had installed the pulley and hoist six years earlier for the purpose of dressing deer. Charlie, while pulling Adam on the chain hoist, pulled it to the end of the I-beam that had no endcap. The pulley fell off the I-beam and onto Adam’s leg, breaking his right femur. Neither Sue Maffett nor Forrest Bartlett knew that Charlie and Adam were playing with the chain hoist before the pulley fell. There was no evidence as to whether the defendants knew the endcap was missing.

On appeal, Bartlett argues that the trial court erred in granting summary judgment because genuine issues of material fact remain for jury consideration. We disagree.

“[T]he duty owed by a landowner to one who enters upon his property depends, to a certain extent, on whether the one entering the property is an invitee, a licensee or a trespasser.” It is undisputed that as a social guest, Adam Bartlett’s legal status was that of a licensee. “The owner of the premises is liable to a licensee only for willful or wanton injury.” It is usually wilful or wanton not to exercise ordinary care to prevent injury to a person who is known to be or may reasonably be expected to be near a hidden peril on one’s premises.

The duty an owner owes to a licensee arises after the owner becomes aware of or should anticipate the presence of the licensee near the peril. There is no evidence in the record that Sue or Keith Maffett knew that Adam Bartlett was in the shed before he was injured. Keith Maffett was not home during the relevant time, nor did he know that Adam Bartlett and his father would visit his home on that day. When the incident occurred, Sue Maffett was inside her home. She did not know that Adam was playing in the shed.

The evidence does not support the argument that the Maffetts should have known that Adam would enter the shed. The evidence shows that although Adam had previously visited the Maffetts’ home, he had never been in the vicinity of the barn or the shed. Finally, the record lacks evidence that the Maffetts should have anticipated that Adam would play with the chain hoist. In their affidavits, both Sue and Keith Maffett indicated that the chain hoist had never been used for play.

Appellant argues that by instructing her granddaughter to park the four-wheeler in the shed, Sue Maffett placed Adam Bartlett in the vicinity of the dangerous instrumentality, i.e., the chain hoist. To accept this argument, we would be forced to speculate that Sue Maffett knew Adam would go into the shed with her granddaughter, and that Sue Maffett knew that the children would play with the chain hoist. Such speculation and conjecture are insufficient to create an inference which would bar summary judgment in favor of the Maffetts.

Appellant relies on Murray Biscuit Co. v. Hutto, Patterson v. Thomas, and Barry v. Cantrell in support of his argument that an issue of fact exists as to whether the Maffetts’ acts or omissions constituted wilful or wanton conduct. These cases, however, are distinguishable because in each case, the owner knew or should have known of the presence of the plaintiff near a hidden peril.

In Hutto, the licensee was injured while at his parent’s place of employment. The owner knew that the licensee was on the premises and “[the licensee] was known, or reasonably expected to be, within range of a dangerous act being done.” The plaintiff in Patterson slipped on a rug in the defendants’ home. The defendants had actual knowledge of the plaintiff’s presence in their home as she was their guest. Finally, in Barry, the plaintiff was injured while attending a birthday party for the defendants’ daughter. The plaintiff sat in a hammock that was anchored to a dead tree, which fell onto the plaintiff. There was no dispute that the plaintiff’s presence was known to the defendants as she was one of their guests, and that the defendants anticipated that their guests would sit on the hammock. Thus, unlike the Maffetts, the owners in Hutto, Patterson, and Barry had actual knowledge of the licensee’s presence near a hidden peril on the owner’s premises.

Since the Maffetts did not know or have reason to know that Adam Bartlett would enter the shed and play with the chain hoist, they are not liable for his injuries. Had Adam Bartlett’s legal status been that of a business invitee, however, a jury question would have existed as to whether the Maffetts knew or should have known that the I-beam lacked an endcap, which would have precluded summary judgment. Since Adam was a mere licensee and the Maffetts’ lack of knowledge of his presence in the shed was undisputed, the trial court’s grant of summary judgment was appropriate.

Decided January 31, 2001.

Wright, Hyman & Pack, Thomas H. Hyman, for appellant.

Gardner, Willis, Sweat & Goldsmith, Donald A. Sweat, for appellees.

Bartlett also contends that a jury question exists as to the theory of attractive nuisance. We disagree because the theory does not apply to this case.

The theory of attractive nuisance arose to protect trespassing children in circumstances where their presence could be reasonably anticipated and measures to protect them could be undertaken without placing a heavy burden upon the owner’s unrestricted use of his land. ... In the taxonomy of negligence law, the attractive nuisance doctrine is but another way of saying that under given circumstances the defendant is liable for the consequences of his negligence where he should in the exercise of ordinary care have foreseen that harm would result to an infant trespasser whose presence he should have anticipated.

Adam Bartlett was not a trespasser, but a licensee. Thus, there is no genuine issue of fact as to whether the defendants are liable under the theory of attractive nuisance.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

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

       On one occasion, Keith Maffett used the pulley to hoist an engine from a car.

        Lipham v. Federated Dept. Stores, 263 Ga. 865 (440 SE2d 193) (1994).

        Davis v. Scott, 232 Ga. App. 493 (502 SE2d 332) (1998).

       OCGA § 51-3-2 (b).

        Odum v. Gibson, 245 Ga. App. 394 (537 SE2d 801) (2000).

       See Martin v. Seaboard Air Line R. Co., 103 Ga. App. 281, 283 (119 SE2d 56) (1961).

       See Bunn v. Landers, 230 Ga. App. 744, 745 (1) (498 SE2d 109) (1998).

       115 Ga. App. 870 (156 SE2d 132) (1967).

       118 Ga. App. 326 (163 SE2d 331) (1968).

       150 Ga. App. 439 (258 SE2d 61) (1979).

        Hutto, 115 Ga. App. at 873 (1).

        Patterson, 118 Ga. App. at 327.

        Barry, 150 Ga. App. at 439.

       An owner is liable in damages to invitees for injuries caused by his failure to exercise ordinary care to keep the premises safe. See OCGA § 51-3-1.

       (Citations and punctuation omitted.) Gregory v. Johnson, 249 Ga. 151, 153-154 (289 SE2d 232) (1982).

       We note that the attractive nuisance theory “generally has no place in a case where the circumstances show a duty on the part of a defendant to exercise ordinary care without resort to the doctrine of attractive nuisances.” (Citation and punctuation omitted.) Biggs v. Brannon Square Assoc., 174 Ga. App. 13, 16 (1) (329 SE2d 239) (1985).


source: Caselaw Access Project

author: Smith, Presiding Judge.

license: Public Domain

text:
    A00A2485.
    EDDLEMAN v. THE STATE.
    (545 SE2d 122)
   Smith, Presiding Judge.

Alan Eddleman pled guilty to two counts of aggravated stalking. The trial court accepted the plea, deferred sentencing, and ordered a presentence investigation. The court also ordered a psychological evaluation. Upon completion of these investigations, on December 16, 1999, Eddleman was sentenced to ten years, to serve five in confinement. On January 10, 2000, Eddleman filed a motion for new trial, which was denied after a hearing. This appeal ensued. Eddleman contends the trial court erred in using the presentence investigation to enhance and fix his sentence and that his rights under the Georgia Constitution to due process and to confront witnesses against him were violated because he was not given a copy of the presentence investigation report. We do not reach the merits of Eddleman’s contentions because we find that he had no right to move for a new trial and because he waived any objection to the use of the presentence investigation report.

1. Eddleman was not entitled to move for a new trial. Generally, if a defendant enters a guilty plea he cannot move for a new trial, since no verdict was returned. Bowens v. State, 194 Ga. App. 391 (1) (390 SE2d 634) (1990). Had Eddleman’s motion for new trial been filed while the trial court still had jurisdiction, the trial court would have been authorized to treat the motion as one to withdraw the guilty plea. Lawson v. State, 204 Ga. App. 796 (1) (420 SE2d 600) (1992). But a superior court’s jurisdiction to entertain a motion to withdraw a plea ends after the term of court in which the judgment of conviction was rendered. Foskey v. State, 232 Ga. App. 303 (501 SE2d 856) (1998). And Eddleman’s motion was not filed in the same term of court in which the plea was entered. We also note that at the hearing on the motion, Eddleman’s counsel specifically stated that he was not seeking to withdraw the guilty plea and seek a new trial. The trial court did not err in denying the motion for a new trial.

2. For the same reason, even if the trial court had considered Eddleman’s motion as one to vacate his sentence, it was without jurisdiction to consider such a motion, because the motion was not timely. A “trial court’s authority to vacate or modify a judgment ends with the expiration of the term of court in which the judgment was entered. [Cits.]” McBee v. State, 239 Ga. App. 314 (521 SE2d 209) (1999). An exception exists when the sentence is one that the law does not allow. Battle v. State, 235 Ga. App. 101, 102 (508 SE2d 467) (1998). But that is not the situation here, as Eddleman’s sentence is well within the maximum allowed. OCGA § 16-5-91 (b).

Decided January 31, 2001.

Ingrid J. McGaughey, Paul J. Oeland IV, for appellant.

Richard R. Read, District Attorney, for appellee.

3. Finally, contrary to the assertions in his brief, Eddleman did not properly object during the sentencing hearing to the use of the presentence investigation report. He stated to the court that he could not address all that was in the presentence investigation report because it had not been furnished to him, and he asked the court to take that disadvantage into consideration; he subsequently told the court he wished to “renew my somewhat weak objection to the way PSIs were done in this case.” But he made no request to see the report, did not seek a continuance, made no specific objection to the failure to provide him with a copy, and did not object to the manner in which the report was used by the court. Under these circumstances, we cannot conclude that Eddleman objected to the use of the report.

The failure to object at a sentencing hearing to consideration of a probation presentence report constitutes a waiver. Gafford v. State, 240 Ga. App. 251, 254 (4) (523 SE2d 336) (1999); Noble v. State, 220 Ga. App. 155, 159 (469 SE2d 307) (1996). Having failed to raise this issue in the trial court, Eddleman cannot raise it here.

Judgment affirmed.

Johnson, P. J., and Phipps, J., concur.

       He pled guilty to one count of simple battery at the same time, but neither that plea nor the conviction is involved in this appeal.

       The Superior Court of Rockdale County has four terms of court, beginning the first Monday in January, April, July, and October. OCGA § 15-6-3 (32.1).


author: Phipps, Judge.

text:
    A01A0174.
    SPOON v. JOHNSON.
    (545 SE2d 328)
   Phipps, Judge.

Randy Spoon filed a voluntary Chapter 13 federal bankruptcy petition without disclosing the existence of an unliquidated tort claim against Geraldine Johnson. Nonetheless, he later sued Johnson on the claim in a Georgia magistrate court. Although Spoon obtained an award of damages, he appealed to superior court. Johnson moved for summary judgment, arguing that the doctrine of judicial estoppel precludes Spoon from asserting the tort claim due to his failure to list it on his schedule of assets in the bankruptcy proceeding. Spoon appeals the trial court’s award of summary judgment to Johnson. We find no error and affirm.

In numerous cases, we have applied the federal doctrine of judicial estoppel “to preclude the prosecution of unliquidated tort claims that discharged debtors failed to list as assets in their federal bankruptcy petitions.” In United Technologies Corp. v. Gaines, we recognized that under federal bankruptcy law

Decided January 31, 2001.

James B. Sullivan, for appellant.

Martin, Snow, Grant & Napier, Blair K. Cleveland, Richard A. Epps, Jr., for appellee.

“all legal or equitable interests of (a) debtor in property as of the commencement of the (bankruptcy) case” become [ ] property of the bankruptcy estate. This includes causes of action, regardless of whether or not such actions are assignable or transferable by the debtor under state law. [Cits.] Therefore, by preemptive operation of federal law, when [the debtor] file[s] for bankruptcy the cause of action [becomes] part of the bankruptcy estate even though OCGA § 44-12-24 normally prohibits the assignment of personal tort causes of action.

Spoon asks us to overrule these decisions. He claims that the principle of comity between state and federal courts prohibits the federal bankruptcy court from imposing a duty on him to assign a cause of action in violation of the laws of Georgia. Spoon also maintains that the requirement that he transfer his tort claim to the bankruptcy estate violates his state constitutional right to prosecute his own cause of action in the courts of this state. There is no merit in these arguments, because “ It] he Supremacy Clause of the United States Constitution dictates that federal law preempts inconsistent state law. [Cit.]’ ” The question is whether the federal constitution authorizes Congress to enact the preemptive legislation, an issue which Spoon does not address.

Judgment affirmed.

Smith, P. J, and Barnes, J, concur.

        Wolfork a Tackett, 241 Ga. App. 633 (526 SE2d 436) (1999); see Reagan v. Lynch, 241 Ga. App. 642 (524 SE2d 510) (1999); Byrd v. JRC Towne Lake, Ltd., 225 Ga. App. 506 (484 SE2d 309) (1997); United Technologies Corp. v. Gaines, 225 Ga. App. 191 (483 SE2d 357) (1997); Southmark Corp. v. Trotter, Smith &c., 212 Ga. App. 454 (442 SE2d 265) (1994).

       (Footnote omitted.) 225 Ga. App. at 192.

        Lance v. American Edwards Labs., 215 Ga. App. 713, 715 (452 SE2d 185) (1994).


text:
    A01A0298.
    In the Interest of L. M. J., a child.
    (545 SE2d 127)
   Phipps, Judge.

The Meriwether County Department of Family & Children Services (DFACS) obtained emergency custody of L. M. J. shortly after her birth because her mother had been involuntarily committed to a state mental hospital. After attempts to reunify the child with her mother proved unsuccessful, DFACS instituted a termination of parental rights proceeding. The maternal grandmother filed a motion to intervene. Although the juvenile court entered no formal ruling on the motion, it allowed the grandmother to participate fully in the proceedings. Permanent custody was awarded to DFACS, and the grandmother appeals. We find that the court did not abuse its discretion in the custody award and affirm.

At the hearing on the termination petition, the mother informed the court that she wanted to surrender her parental rights and that she wanted the grandmother to be given custody of the child, but that she realized the child might be placed elsewhere. The court terminated the parental rights of the mother and of the putative father and found that it would not be in the child’s best interest to award custody to the grandmother. The court found that the child had formed a bond to her foster parents who wanted to adopt her and that adoption would be in her best interest.

1. At the outset, DFACS challenges the grandmother’s standing to appeal. Because the trial court effectively granted the grandmother’s motion to intervene by allowing her to fully participate in this proceeding, we hold that she has standing to appeal.

2. The grandmother challenges the court’s determination that placing the child with her would not be in the child’s best interest.

If an order is entered terminating the rights of both parents, OCGA § 15-11-103 (a) (1) requires the court to first attempt to place the child with a person related to the child by blood or marriage or with a member of the child’s extended family, but only if such placement is in the best interest of the child.

Michelle Canas, a therapist employed by Morningstar Family Resource Center, conducted an assessment of the child’s family and recommended that she not be placed in the grandmother’s home. Dr. Ronald Cole, a psychologist, performed a psychological evaluation of the grandmother and also recommended that the child not be placed with her. The grandmother contends that the recommendations of Canas and Cole provide no support for the court’s decision, because their testimony was based on hearsay and unproven allegations that the maternal grandfather had raped or molested the child’s mother. We cannot agree.

Although these witnesses were provided with background information relayed or prepared by individuals who did not testify at trial, their testimony shows that their recommendations were based on their own evaluations and assessments concerning the grandmother’s parenting abilities.

Dr. Cole testified that during interviewing and testing the 68-year-old grandmother responded to questions in a disingenuous fashion, that she exhibited distorted and delusional thoughts and symptoms associated with schizophrenia, and that her mental condition would adversely affect her parenting skills. Dr. Cole also related that, on at least one occasion, the child’s mother had physically assaulted the grandmother. He thus concluded that the grandmother’s home would not be a safe and nurturing environment for the child’s emotional development. In addition, he testified that the child’s mother had accused the grandfather of raping her, that the grandmother said that the grandfather had taken and failed a polygraph test in connection with the alleged rape, and that the grandfather had been accused of inappropriate sexual behavior by neighborhood children and by students at the school where he had been employed. For these reasons, Dr. Cole recommended that the court order the grandfather to submit to a sex offender risk assessment before considering placing the child in the grandparents’ home.

Canas’s main concern was that the mother had a history of violent and aggressive behavior, that she would have access to the child if the child were placed in the grandmother’s home, and that the grandmother lacked the ability to protect the child from the mother. Canas also doubted the grandmother’s ability to parent the child based on the results of tests or surveys administered to her. Canas testified that although she had some concerns about the grandfather, there was no clear evidence that he had ever committed the rape. Canas thus recommended that the court order a further evaluation of the grandfather before considering an award of custody of the child to the grandmother.

The child’s guardian ad litem concurred with the recommendations of these witnesses. DFACS caseworker Farrar also evaluated the grandmother’s home, and she concluded that it was dysfunctional and not a proper environment for the child based on the same concerns expressed by Canas. The mother’s treating psychologist agreed. Evidence was also introduced authorizing the court to find that the grandmother lacks the physical stamina and strength to raise a young child.

The juvenile court’s determination that it was not in the child’s best interest to be placed with the grandmother is supported by competent evidence concerning her inability to properly discharge parental responsibilities. The court did not abuse its discretion in refusing to award custody of the child to the grandmother.

Decided January 31, 2001.

Bunn & Kirby, William L. Kirby II, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, Daniel, Hadden & Alford, Peter T. Alford, Linda B. Taylor, for appellee.

3. The grandmother raises a number of other claims of error, none of which provides a basis for reversal. The grandmother challenges findings in the court’s order concerning the absence of any property of substantial value that the child might inherit from either parent, the absence of other suitable or available relatives with whom to place the child, and the mother’s desire that the child be adopted. The grandmother, however, lacks standing to complain of these findings because they have no bearing on the court’s refusal to award custody to her. Although the grandmother claims that she could have been awarded visitation if the child had been placed with another relative, this argument was not advanced below and thus has been waived.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

       See, e.g., Haney v. Dev. Auth. of Bremen, 271 Ga. 403 (519 SE2d 665) (1999) (appeal by intervenors in bond validation proceeding).

       See generally In the Interest of B. R. W., 242 Ga. App. 232, 241 (3) (530 SE2d 5) (2000).

       See id. at 239-240.

       See, e.g., Brewer v. State, 224 Ga. App. 656, 659 (6) (481 SE2d 608) (1997).


author: Miller, Judge.

text:
    A00A1841.
    WARREN et al. v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA et al.
    (544 SE2d 190)
   Miller, Judge.

Plaintiff-appellants Carl S. Warren and Earl Davis contributed money to a charitable trust establishing the Herbert E. Miller Chair in Financial Accounting, an endowed chair in the Terry College of Business at the University of Georgia. They subsequently sued the Board of Regents of the University System of Georgia, the University of Georgia Foundation, and Russell Barefield as the Director of the J. M. Tull School of Accounting at the University of Georgia, alleging a breach of fiduciary duty under the terms of the trust. In essence, plaintiffs claimed the Miller Chair was harmed when Barefield, allegedly ignoring both appointment criteria under the trust and university hiring procedures, named an unqualified, non-Certified Public Accountant personal friend as the first holder of the Miller Chair in Financial Accounting and caused more than $135,000 to be improperly paid to that holder between 1992 until his resignation in 1996. Plaintiffs prayed for an accounting, the return to the trust of all money paid to the chairholder, and the disqualification of Barefield as administrator or trustee.

Defendants admitted the chronology while denying the material allegations regarding breach of fiduciary duty and immediately moved to dismiss the complaint. The trial court granted these collective motions, concluding that standing to enforce the terms of the charitable Miller Trust is granted exclusively to the Attorney General under OCGA § 53-12-115. The trial court further determined that there was no just reason for delay and made the dismissal final under OCGA § 9-11-54 (b).

Plaintiffs appealed directly to the Supreme Court of Georgia, which transferred the case to the Court of Appeals. They contend dismissal was erroneous because they have a special interest that confers standing to enforce the trust and because the Attorney General ought to be disqualified. We affirm the dismissal due to lack of standing.

1. Plaintiffs argue that the Attorney General is not the only entity authorized to bring suit to enforce the terms of a charitable trust where the plaintiffs have a special interest.

It is undisputed that the Miller Trust is a charitable trust, in that it promotes human civilization through the advancement of education by paying a salary supplement to the holder of the endowed chair. Since 1952, Georgia law has provided,

[i]n all cases in which the rights of beneficiaries under a charitable trust are involved, the Attorney General . . . shall represent the interests of the beneficiaries and the interests of this state as parens patriae in all legal matters pertaining to the administration and disposition of such trust.

Scott’s treatise on trusts explains:

It is frequently said in the cases that the Attorney General alone has [the] power to maintain suits for the enforcement of charitable trusts. This, however, is not strictly true. It is clear, for example, that where there are several trustees, one of them may maintain an action against the others to enforce the trust or to compel the redress of a breach of trust.

In such a case, or where suit is brought by others to invalidate a charitable trust, the Attorney General is a necessary party. The language of OCGA § 53-12-115 does not address “special interests” and does not forbid co-trustees from bringing suit to enforce a charitable trust. Nor does that Code section expressly make the Attorney General (or district attorney) the sole or exclusive representative of the beneficiaries. Its mandatory language clearly makes that officer the primary or presumptive representative and so a necessary party. We note that the Restatement provides:

A suit can be maintained for the enforcement of a charitable trust by the Attorney General or other public officer, or by a co-trustee, or by a person who has a special interest in the enforcement of the charitable-trust, but not by persons who have no special interest or by the settlor or his heirs, personal representatives or next of kin.

The Restatement is consistent with Georgia law allowing certain individuals who have a special interest in a charitable trust to maintain an action to enforce its provisions. Since the General Assembly is presumed to enact legislation with full knowledge of the existing condition of the law, including decisions by the courts, we conclude that the 1952 act as amended does not make the Attorney General (or district attorney) the exclusive entity authorized to initiate a suit to enforce a charitable trust, where individuals can demonstrate a special interest.

2. Nevertheless, we conclude that plaintiffs, either as contributors to the trust or as faculty members who might be eligible to be named to the Miller Chair, fail to demonstrate that special interest.

The rule is settled that an individual member of the public has no right, as such, to maintain a suit to enforce or administer a benevolent or charitable trust. While a person having a special interest is sometimes permitted to maintain a suit to enforce a charitable trust, the mere possibility that one may be a beneficiary of a charitable trust does not give him standing to maintain a suit to enforce the trust. Thus, those who can enjoy the status of beneficiaries only when selected by the trustees are generally held to have no right to initiate a suit for the enforcement of a charitable trust. The reason is that if any third person were permitted to sue as a matter of right it would . . . subject the charity to harassing litigation.

Similarly, the comments to the Restatement confirm that “[t]he mere fact that a person is a possible beneficiary is not sufficient to entitle him to maintain a suit for the enforcement of a charitable trust.” To authorize an individual to enforce a charitable trust in Georgia, the plaintiff must have some pecuniary interest in it or show that she is a beneficiary or else show in some way she may avail herself of its educational advantages.

A charitable trust for the promotion of education may provide that particular persons shall be entitled to a preference to benefits under the trust, in which case any such person can maintain an enforcement suit. But the selection criteria of the trust agreement in this case do not identify either plaintiff, by name, position, or association, as a member of a class of potential beneficiaries entitled to a preference. Indeed, the trust specifies that the “first chairholder will be a new appointee to the University of Georgia faculty,” thus excluding a current or former faculty member. Plaintiffs have no standing to enforce this charitable trust by virtue of their positions as faculty members arguably eligible to be selected by Barefield to' hold the Miller Chair.

3. A suit for the enforcement of a charitable trust cannot be maintained by the settlor or his heirs or personal representative as such. Thus, the fact that they contributed money to the trust does not confer upon plaintiffs any “special interest” in the enforcement of the trust that the Attorney General cannot adequately represent. The trial court did not err in failing to rule that plaintiffs had standing on these bases.

4. The second enumeration contends the Attorney General should be disqualified as the representative of the beneficiaries because he also represents the Board of Regents. In our view, this contention is without merit.

Under the Disciplinary Standards of the State Bar of Georgia, the term “client” does not include a public agency when represented by a full-time public official, such as the Attorney General. Nothing in the Code of Professional Responsibility prohibits a full-time public lawyer, representing this State or its agencies, from taking a position adverse to the State, its agencies or officials, when such action is authorized or required by the Constitution or statutes of this State. Moreover, the remedy for a conflict of interest is to involve the district attorney or appoint a Special Assistant Attorney General. Such conflict certainly would not mandate that persons with no “special interest” (such as plaintiffs here) be granted standing to enforce a charitable trust.

Decided January 3, 2001

Reconsideration denied February 1, 2001

J. Hue Henry, Christopher L. Casey, for appellants.

Thurbert E. Baker, Attorney General, Daniel M. Formby, Senior Assistant Attorney General, John B. Ballard, Jr., Oscar B. Fears III, Assistant Attorneys General, Powell, Goldstein, Frazer & Murphy, James C. Rawls, King & Spalding, Floyd C. Newton III, Michael R. Smith, Letitia M. Brown, Casey, Gilson, Williams & Shingler, George P. Shingler, Karen R. Dunbar, Mayer & Beal, Randolph A. Mayer, for appellees.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

       A current university faculty member and former faculty member respectively.

       Barefield’s counterclaim for libel, based on contentions that Smith is highly regarded as an effective educator in the field of accounting although not a CPA remains in the trial court pending the outcome of court-ordered mediation.

        Warren v. Bd. of Regents &c. of Ga., 272 Ga. 142 (527 SE2d 563) (2000).

       See OCGA § 53-12-110, itemizing proper subjects of charity. “As was stated in Newsome v. Starke, 46 Ga. 88, 92 [(1872)], this section ‘almost copies the statute of 43d Elizabeth,’ — otherwise known as the statute of charitable uses, enacted by the English Parliament in the year 1601.” (Citation omitted.) Goree v. Ga. Indus. Home, 187 Ga. 368, 373 (200 SE 684) (1938).

       (Emphasis supplied.) OCGA § 53-12-115, originally enacted as Code Ann. § 108-212 by Ga. L. 1952, pp. 121, 122, § 1; repealed and superseded by Ga. L. 1962, p. 527, which added the district attorney of the circuit as an alternative representative of the beneficiaries.

       IVA Scott on Trusts (4th ed. 1989), pp. 364-365, § 391, fn. 22 and accompanying text.

       Id. at p. 365, fn. 24 and accompanying text.

       Compare OCGA § 53-12-116 (c), authorizing the Revenue Commissioner to supervise the administration of charitable trusts.

       See IVA Scott, supra, pp. 360-361, § 391, fhs. 9-12 and accompanying text (Attorney General is necessary party in proceedings to deviate from trust terms, or to apply cy pres doctrine, or to terminate a charitable trust, or to approve a compromise).

       (Emphasis supplied.) Restatement 2d, Trusts, pp. 278-279, § 391 (1959).

        Harris v. Brown, 124 Ga. 310, 311, hn. 6 (52 SE 610) (1905). Accord Duffee v. Jones, 208 Ga. 639, 642-643 (1) (68 SE2d 699) (1952); Harris v. Bandy, 182 Ga. 844, 847 (3) (a) (187 SE 99) (1936), overruled on other grounds, Peoples Loan Co. v. Allen, 199 Ga. 537, 565-566 (2) (34 SE2d 811) (1945); Dominy v. Stanley, 162 Ga. 211 (1) (133 SE 245) (1926).

        Chrysler Corp. v. Batten, 264 Ga. 723, 727 (4) (450 SE2d 208) (1994).

       In Duffee v. Jones, supra, 208 Ga. at 643 (1) (a), decided January 16, 1952, the Supreme Court expressly denied a motion to review and overrule Dominy v. Stanley, supra, 162 Ga. at 211. Former Code Ann. § 108-212 was approved by the General Assembly on February 13,1952. See also Miller v. Alderhold, 228 Ga. 65, 69 (3) (184 SE2d 172) (1971), where the Supreme Court of Georgia held that a student attending a private college has no standing to challenge the acts of trustees or others in the operation and management of the college. Two justices joined the special concurrence of Justice Grice, who opined that, since that case did not present a situation involving a “special interest” group, the type of statute represented by former Code Ann. § 108-212, now OCGA § 53-12-115, “does not apply, according to some . . . authorities.” Id. at 72.

       (Footnotes omitted; emphasis supplied.) 18 NYJur2d, Charities (1999), § 40.

       Restatement 2d, Trusts, p. 279, § 391, comment c.

        Harris v. Brown, supra, 124 Ga. at 316 (5).

       Restatement 2d, Trusts, pp. 279-280. Accord IVA Scott, supra at p. 366, § 391 (where trust endows a professional chair at an educational institute, the incumbent of the chair, for the time being, has a special interest in the performance of the trust and can maintain an enforcement suit).

       Restatement 2d, Trusts, p. 280, § 391, comment e. Compare Argyle Realty Co. v. Cobb County School Dist., 259 Ga. 654 (386 SE2d 161) (1989) (grantor may sue grantee to enforce covenants). Generally, where the settlor or donor of property transfers it inter vivos to trustees for charitable purposes, he cannot revoke the trust unless he has reserved the power of revocation. IVA Scott, supra at p. 115, § 367.1. Unless the trust fails and the doctrine of cy pres is not applicable, neither the settlor nor his heirs or personal representative can compel the trustees to reconvey the property to them. Id. at 116.

       Rule 4-102 (d) of the State Bar of Georgia, Standard 69.

       Id., Standard 70.


author: Blackburn, Chief Judge.

text:
    A00A2577.
    MCDONALD et al. v. DEPARTMENT OF TRANSPORTATION.
    (544 SE2d 747)
   Blackburn, Chief Judge.

In this condemnation action, Maxine McDonald and John Robert McDonald appeal a jury’s award to them of $96,500 as just compensation for the taking of 3.509 acres by the Georgia Department of Transportation (DOT). On appeal, the McDonalds contend that they are entitled to a new trial because the trial court made numerous errors in its instructions to the jury. For the reasons set forth below, we reverse.

Viewed in the light most favorable to the jury’s verdict, the record shows that the McDonalds owned a certain 13.5-acre tract of land in Walker County. The McDonalds used this property to operate an automobile salvage yard. Although located in an area rezoned for residential use only, the McDonalds’ property was “grandfathered,” and the McDonalds were allowed to continue their business under the condition that they build a fence and plant shrubs to obscure the view of junked automobiles on their property.

On June 7, 1995, the DOT condemned 3.509 acres of the McDonalds’ land in order to construct part of a limited access highway. Prior to the condemnation, the McDonalds had access to two county roads adjoining the property, Washington Road and Park City Road. After the condemnation, the McDonalds retained their frontage on Washington Road but lost all of their frontage on Park City Road.

The McDonalds disputed the DOT’s estimate of $76,000 as just and adequate compensation, filed suit requesting actual and consequential damages, and received a jury verdict for $96,500. Dissatisfied with the amount of this award, the McDonalds now appeal, taking issue with the trial court’s instructions to the jury.

As an initial matter, we must point out that the McDonalds inappropriately base their enumerations of error on the charges requested by the DOT rather than the charges actually given by the trial court. In fact, the McDonalds’ enumerations use quotations from the requests rather than the transcript, and, in more than one case, the instructions about which they complain were actually given in a different form from that set forth in their enumerations. Furthermore, the McDonalds contend in one enumeration that the trial court failed to give an instruction which was indeed given to the jury in the exact form requested by the McDonalds. We condemn the McDonalds’ failure to properly review the transcript in this case and their misrepresentations to this Court. And we strongly criticize the concomitant failure to supplement their brief to this Court to correct these egregious errors, some of which were clearly pointed out by the ' DOT in its reply brief. Nevertheless, we will address the substantive issues herein, based on a proper consideration of the transcript.

1. The McDonalds take issue with certain instructions given by the trial court, arguing that these instructions failed to properly take into account the fact that all frontage on Park City Road was removed.

As a general matter, “[a] request to charge itself must be correct, legal, apt, even perfect, and precisely adjusted to some principle involved in the case. If any portion of the request is inapt or incorrect, denial of the request is proper.” (Punctuation omitted.) Dept. of Transp. v. Dalton Paving &c. Moreover, a charge must be “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 [the] tendency to confuse and mislead the jury or to becloud the issues in the case.” (Citations and punctuation omitted.) Gen. Ins. Svcs. v. Marcola.

(a) The McDonalds contend that the trial court erred by charging the jury:

A property owner has a right of access to his property from a public street, and the owner cannot be deprived of his right of access without just and adequate compensation being paid. However, a property owner is not entitled to access to his land at all points on the boundary between the property and all streets, if entire access has not been cut off, and if he is offered a convenient access to his property, then his means of entering and exiting the property have not been substantially interfered with and the property owner cannot recover consequential damages for the access to the property.

(Emphasis supplied.)

This charge does not accurately reflect the holding of the case from which it was taken, Dept. of Transp. v. Pilgrim, and it is not properly adjusted to the facts of this case. In Pilgrim, the condemnee’s commercial frontage along Spur 40 was partially taken, leaving some access to that road. To determine the consequential damage caused by this limited removal of access, the Pilgrim court charged the jury, in pertinent part: “[A] property owner is not entitled as against the public to access to his land at all points in the boundary between the property and the street, if entire access has not been cut off, and if he is offered a convenient access to his property.” (Punctuation omitted; emphasis supplied.) Id. at 577 (1) (c). Therefore, contrary to the charge given by the trial court, Pilgrim does not govern a situation where entire access to a single street is removed although partial access to other streets remains. Pilgrim, instead, governs situations where partial access to a single public street occurs.

Cases such as the one at hand are analogous to Dept. of Transp. u Whitehead. In Whitehead, the condemnee’s property had frontage on 19th Street and West Peachtree Street. The DOT condemned all of the condemnee’s West Peachtree frontage but not the frontage on 19th Street. The condemnee sought consequential damages for the taking of his West Peachtree frontage, and our Supreme Court opined:

[T]he right of access, or easement of access, to a public road is a property right which arises from the ownership of land contiguous to a public road, and the landowner cannot be deprived of this right without just and adequate compensation being first paid. The easement consists of the right of egress from and ingress to the abutting public road and from there to the system of public roads. Since the easement is a property right, compensation for interference with the easement does not depend on the property owner’s actual use of it at that time. Thus, the DOT deprived [the condemnee] of his easement of access onto the abutting Peachtree/West Peachtree Street, and must compensate him for the taking, irrespective of [the condemnee’s] easement of access onto the abutting 19th Street. However, the jury should consider whether the owner has any alternative access, such as 19th Street in the instant case, when it determines the amount of damages, if any, to the owner due to the deprivation of one means of access to his property.

(Citations and punctuation omitted.) Id. at 151-152 (1).

Based on Whitehead, therefore, the jury in this case should have been instructed that the McDonalds’ complete loss of access to Park City Road was a compensable taking and that damages, if any, would be mitigated by continued access to Washington Road. And, because the trial court instructed the jury that the taking of frontage along Park City Road was not compensable, the erroneous instruction must be considered a harmful error requiring reversal of the jury’s verdict.

(b) The McDonalds contend that the trial court erred by charging the jury: “[C]hanges in the roadways which result in the public making a longer drive to reach remaining property are not an appropriate item of damages.” We disagree.

Throughout their arguments, the McDonalds contended that the DOT’s act of condemnation made travel from the highway by members of the public to their property more circuitous than it had previously been. As the evidence supported this charge, the trial court did not err in giving it.

2. The McDonalds contend that the trial court erred by charging the jury: “[Ljoss of visibility of the property from the highway cannot be used as a consequential damage in determining any diminution in value in the remaining property of the defendants.” We disagree.

In Dept. of Transp. v. Kendricks, this Court found that evidence of loss of visibility may be admissible to establish damages for a loss of business, but it is not “proper if the issue [is] one of diminution in value to real estate,” Id. at 247-248 (3). Prior to trial in this case, the McDonalds pointed out that they were not seeking business losses, only compensation for the real estate taken from them. They cannot, for the first time on appeal, make such losses an issue. Accordingly, the trial court did not err in instructing the jury that loss of visibility could not be considered in its determination of damages in this case.

3. Finally, the McDonalds argue that the trial court erred by failing to charge the jury:

A limited access highway is a special kind of highway provided for by law. A person ordinarily has the right of access to a public road or highway that goes through the person’s property, that is, the right to go on or off the highway from or to the property, which is a property right, and which the person is entitled to be paid for if a condemnation takes away that right. This is not true as to a limited access highway, and the owner is not entitled to such payments for lack ... or absence of access rights. If the construction of a limited access highway interferes with the owner’s access right, the owner’s right of access to an existing road would have to be taken into account, condemned and included in the owner’s compensation for land actually taken.

Decided January 19, 2001

Reconsideration denied February 1, 2001.

Clifton M. Patty, Jr., Christopher C. Young, for appellants.

Thurbert E. Baker, Attorney General, R. O. Lerer, Senior Assistant Attorney General, Ronald R. Womack, John T. Siess, for appellee.

The transcript shows that the trial court gave this instruction to the jury as requested. Therefore, this enumeration of error is patently unfounded.

Judgment reversed.

Eldridge and Barnes, JJ., concur.

        Dept. of Transp. a Dalton Paving &c., 227 Ga. App. 207, 225 (10) (b) (489 SE2d 329) (1997).

        Gen. Ins. Svcs. v. Marcola, 231 Ga. App. 144, 147 (4) (497 SE2d 679) (1998).

        Dept. of Transp. v. Pilgrim, 175 Ga. App. 576 (333 SE2d 866) (1985).

        Dept. of Transp. v. Whitehead, 253 Ga. 150 (317 SE2d 542) (1984).

        Dept. of Transp. v. Kendricks, 148 Ga. App. 242 (250 SE2d 854) (1978).


author: Ruffin, Judge.

text:
    A00A2045.
    McBRIDE v. THE STATE.
    (545 SE2d 332)
   Ruffin, Judge.

Kenneth McBride was charged with aggravated assault with attempt to rape (Count 1), aggravated assault (Count 2), and kidnapping (Count 3), arising out of an alleged attack upon a woman in October 1997. With respect to Count 1, the jury found McBride guilty of the lesser offense of battery. The jury also found McBride guilty of kidnapping, but could not reach a verdict on Count 2. McBride appeals, claiming that the trial court erred in sustaining the State’s challenge to his peremptory strikes of certain jurors and in excluding evidence that the victim had made prior false allegations of sexual misconduct against another person. For reasons discussed below, we reverse.

1. During the jury selection process, McBride used six of his peremptory strikes to exclude white females from the jury, and used two additional strikes to exclude white females as potential alternate jurors. The State challenged these strikes pursuant to Georgia v. McCollum, which extended the rule of Batson v. Kentucky to cases involving peremptory challenges made by criminal defendants. After McBride’s attorney offered explanations for the strikes, the trial court upheld the State’s challenge to three of the strikes, ordering the stricken jurors reinstated. McBride argues that this was error, and we agree.

In evaluating a challenge under Batson or McCollum, a trial court must employ a three-step process to determine whether peremptory challenges were used in a discriminatory manner. First, the opponent of the strike must make a prima facie showing of racial discrimination. Once a prima facie case is established, the proponent of the strike must “set forth a race-neutral, case-related, clear and reasonably specific explanation for the exercise of [his] strikes.” To satisfy his burden at this stage, “the proponent of the strike need not proffer an explanation that is persuasive or even plausible — all that is required is an explanation that is facially race-neutral.” Finally, once the proponent has offered a facially race-neutral explanation, “[t]he trial court must then determine, considering the totality of the circumstances, whether the opponent of the strikes has shown that the proponent was motivated by discriminatory intent in the exercise of his strikes.” The ultimate burden of persuasion rests on the opponent of the strike, who must demonstrate that the real reason for the strike was unlawful discrimination.

The three jurors reinstated by the trial court in this case were juror nos. 24, 70, and 71. Juror no. 24 was a pharmacist whose husband was a loan officer and litigation specialist with a credit association. Defense counsel stated that he struck her because he was concerned that she might have “experience with the legal process that the other jurors would not have” and that she might therefore “have an inordinate impact or influence with the jury.” In upholding the State’s challenge to this strike, the trial court stated that

the Court finds as far as the juror being a pharmacist and her husband being a loan officer with apparently the local Production Credit Association is not a sufficient race neutral reason for this strike to have been taken. ... I have found that that is not sufficient enough race neutral reason at this point in time.

With respect to juror no. 70, defense counsel explained his reasons for striking her as follows: “[S]he is single, she is young, she is a white female, which we are discussing here. The issue is this case deals with a young single white female and we were concerned about identity, the juror identifying with the situation of the alleged victim.” The trial court rejected this reasoning, stating simply that it was “not sufficient.”

As to juror no. 71, defense counsel explained that her son had been permanently impaired by an act of violence, and that he was “concerned that the juror might transfer concerns with her son’s case to the incident [sic] case.” In rejecting this reasoning, the court noted that another male juror, who had not been struck, had a brother who had been the victim of violence. The court then stated, “So the Court at this time is going to find that as to number 71, that was not a sufficient race neutral reason.”

In reinstating the three jurors, the trial court did not purport to find that defense counsel exercised the peremptory strikes for discriminatory reasons. Rather, the court in each case reinstated the juror because the reason given by defense counsel was “not sufficient” or was “not a sufficient race neutral reason” to justify the strike. The question, however, is not whether the reason given was “sufficient” in the court’s view to justify the strike — a defendant may exercise a peremptory strike for any reason except discrimination on the basis of race or gender. The question, therefore, is whether the strike was motivated by discriminatory intent. By focusing simply on the “sufficiency” of defense counsel’s proffered explanations, the trial court failed to consider the ultimate issue of whether the State had proven intentional discrimination.

The State argues that, since the trial court sustained its challenges to the stricken jurors, we may infer that the court found that the State had met its burden of proving discriminatory intent. We do not agree. It is true that, as a general proposition, judges are presumed to know the law and to follow it in making their rulings. Thus, for example, we may often assume that the trial court applied the correct burden of proof, that it considered only admissible evidence, or that it applied the proper test for determining the admissibility of evidence. However, the assumption that a trial court has correctly applied the law is a theoretical one, and has no place where it affirmatively appears to the contrary. Based on the trial court’s own description of its reasoning, it affirmatively appears that the court simply determined that the race-neutral reasons articulated by defense counsel were not “sufficient” to justify the strikes, without considering the ultimate issue of discriminatory intent. Thus, the trial court “forced [McBride] to trial with an illegally constituted jury. Consequently, [McBride] must be given a new trial.”

In reaching this conclusion, we are mindful of our comments in Malone v. State, where we stated that

[w]e realize the difficulty trial judges face in creating a record which unequivocally shows that they considered each step of the three-part analysis separately. . . . However, it is absolutely clear that the burden of persuading the trial court that the strikes were racially motivated rests with, and never shifts from, the opponent of the strike. By requiring judges to consider each of the three parts of the Batson analysis separately, we safeguard against the burden of persuasion being improperly shifted to the strike’s proponent.

This is not to say that the trial court must expressly make findings at each step of the analysis — it is sufficient if the record demonstrates that the trial court in fact applied the proper analysis. Where, however, it appears from the record that the trial court improperly placed the burden on the proponent to articulate a persuasive reason for the strike, reversal is required.

Decided February 1, 2001.

Lorenzo C. Merritt, for appellant.

R. Joseph Martin III, District Attorney, Keith A. McIntyre, Assistant District Attorney, for appellee.

2. Because of our ruling above, we need not address McBride’s other enumeration, which contends that the trial court improperly excluded evidence under the Rape Shield Statute, OCGA § 24-2-3. The Rape Shield Statute was applicable because McBride was being prosecuted for aggravated assault with attempt to rape. However, his conviction of the lesser included offense of battery amounted to an implicit acquittal on the greater charge; thus, McBride cannot now be retried for aggravated assault with attempt to rape, notwithstanding the reversal of his conviction on the lesser offense. Since it does not appear the Rape Shield Statute would be implicated in any retrial, we cannot say it is likely that the error McBride complains of will recur on retrial.

Judgment reversed.

Andrews, P. J., and Ellington, J., concur.

       505 U. S. 42 (112 SC 2348, 120 LE2d 33) (1992).

       476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

       See Chandler v. State, 266 Ga. 509-510 (2) (467 SE2d 562) (1996).

       Id. at 510 (2). We note that the Batson analysis has also been extended to claims of gender discrimination in the jury selection process. See Pickren v. State, 272 Ga. 421, 424 (4) (530 SE2d 464) (2000). However, although the State’s contention was that McBride impermissibly struck white female jurors, it did not articulate a theory of gender discrimination below, and the trial court considered the challenges only in the context of race discrimination.

        Barnes v. State, 269 Ga. 345, 349 (6) (496 SE2d 674) (1998).

       Id.

       Id.

       See Chandler, supra at 510; Curry v. State, 238 Ga. App. 511, 514 (1) (a) (519 SE2d 269) (1999).

       See Jackson v. State, 265 Ga. 897, 898-899 (2) (463 SE2d 699) (1995) (‘“[W]hat is meant by a ‘legitimate reason” is not a reason that makes sense, but a reason that does not deny equal protection.’ ”).

       With respect to juror no. 70, we note that defense counsel’s explanation for the strike may not have been facially race-neutral, since counsel admitted that he struck her because she was “a young single white female” who might “identifly] with the situation of the alleged victim.” See Hutchison v. State, 239 Ga. App. 664, 665 (2) (522 SE2d 56) (1999). Even assuming that this explanation was facially improper, however, the proffered explanations for striking the other two jurors were clearly race-neutral. Thus, the trial court could not simply reject these explanations as “not sufficient,” obviating the need to consider the ultimate issue of purposeful discrimination.

        Windom v. State, 187 Ga. App. 18, 19 (2) (369 SE2d 311) (1988).

       See In the Interest of A. L. L., 211 Ga. App. 767, 770 (5) (440 SE2d 517) (1994).

       See In the Interest of C. G. B., 242 Ga. App. 705, 711 (4) (531 SE2d 107) (2000).

       See Windom, supra.

       See Sparks Specialty Co. v. Moss, 110 Ga. App. 585, 586 (139 SE2d 345) (1964); Winston Corp. v. Park Elec. Co., 130 Ga. App. 508 (203 SE2d 753) (1973).

       See A. L. L., supra (will not presume trial court committed error “ ‘where that fact does not affirmatively appear.’ ”).

        Jackson, supra at 900. See also Chandler, supra at 509-510 (2); Hinson v. State, 237 Ga. App. 366, 369-371 (3) (515 SE2d 203) (1999); Malone v. State, 225 Ga. App. 315, 318-319 (1) (484 SE2d 6) (1997).

       (Citation omitted.) Id. at 318-319.

       See Hyman v. State, 272 Ga. 492, 494 (2) (531 SE2d 708) (2000); Curry, supra.

       We reject as impractical the idea of remanding this case to the trial court for a determination on the issue of discriminatory intent, recognizing the difficulty of making such a factual determination based on a cold transcript of a jury selection two and a half years ago. Cf. Jackson, supra (reversing and remanding for new trial); Chandler, supra at 510; Hinson, supra; Malone, supra.

       See OCGA § 24-2-3 (statute applicable to “prosecution[s] for rape”); Blount v. State, 172 Ga. App. 120, 121 (1) (322 SE2d 323) (1984) (statute applies to prosecutions for aggravated assault with attempt to rape).

       See McKibben v. State, 212 Ga. App. 866, 867 (443 SE2d 640) (1994).


text:
    A00A2160.
    SMITH v. DIRECT MEDIA CORPORATION.
    (544 SE2d 762)
   Ruffin, Judge.

Direct Media Corporation (“Direct Media”) sued Lance Smith d/b/a Lance Smith, P.C. for breach of contract. Following a bench trial, the court rendered a judgment in favor of Direct Media. Smith appeals, asserting that the trial court erred in finding in favor of Direct Media. We disagree and therefore affirm.

Appeals from bench trials, where the trial judge sits as the trier of fact and has the opportunity to assess the credibility of the witnesses, are reviewed under the clearly erroneous standard. Under this standard, we will not disturb a trial court’s findings of fact if there is any evidence to support them. In this case, neither party asked the trial court to issue findings of fact, and the trial court therefore did not make any. Implicit in the court’s judgment, however, is its finding that Smith is liable to Direct Media under the parties’ alleged contract. There is ample evidence supporting this finding.

The evidence shows that Direct Media publishes a small, regional telephone directory for Brunswick. In June and July 1996, Smith negotiated with Direct Media to advertise his law practice on the outside back cover of its Brunswick directory for the price of $10,000. The next month, after Smith paid Direct Media a $2,000 deposit for his advertisement, the company sent Smith an “advertising order” form, which generally described the advertisement discussed by the parties. The order form provided in part that it would become a contract when signed by Smith.

Although Smith did not return the advertising order, he continued working with Direct Media to create his advertisement. Smith testified that he met with a Direct Media representative “four or five times.” In addition, Smith provided Direct Media with documents detailing the advertisement he wanted placed on the directory. The documents included a personal photograph that Smith wanted on the advertisement and a copy of an advertisement Smith previously placed in another phone book, which he annotated to show how he wanted his advertisement with Direct Media to appear. While Direct Media was creating the advertisement for Smith, the company repeatedly requested that Smith return the signed order form and notified him that it needed it by August 30. On August 30 Direct Media received a contract signed “Lance Smith by T. S. K.” Smith testified that T. S. K. is Tarry Kirkland, a paralegal in his firm.

After creating the advertisement, Direct Media sent a proof to Smith to correct any errors made during the typesetting and layout process. A form accompanying the proof stated: “PLEASE SIGN AND RETURN WITH ORIGINAL COPY BY 09-23-96.” The form also notified Smith that “[fjailure to return this proof sheet will result in the printing of your ad as shown above.”

Smith acknowledged that he received the advertisement proof, but he did not return the proof by the deadline. In a letter dated September 24, 1996, however, Smith requested that his advertisement not be included in the directory and that Direct Media return his deposit. Direct Media’s president testified that because the back cover is a premier position and the deadline for accepting advertisements had passed, he did not cancel Smith’s advertisement. Although the president attempted to contact Smith several times, Smith never returned his calls.

Direct Media sued Smith for the $8,000 balance due on the advertisement. Smith answered, denying that there was a contract between the parties. Smith testified at trial, and argues on appeal that there was no contract because he never, directly or by implication, authorized Kirkland to sign the contract, because he did not return the advertisement proof and because the Statute of Frauds required a signed contract.

1. The absence of Smith’s signature is not fatal to Direct Media’s claim. Though it is true that the advertising order form required Smith’s signature for the form to become a contract, the trial court was authorized to find that Smith was equitably estopped from raising this defense. Estoppel arises under circumstances “where it would be more unjust and productive of evil to hear the truth than to forbear investigation.” These circumstances generally exist where there is “some intended deception in the conduct or declarations of the party to be estopped, or such gross negligence as to amount to constructive fraud, by which another has been misled to his injury.” Thus, in a case such as this, where a party asserts that he has a defense to contractual liability, he may, by reason of his conduct, be estopped from relying on this defense. Whether a party is estopped by his conduct is generally a question for the factfinder to resolve.

In this case, Direct Media presented abundant evidence authorizing the trial court, as factfinder, to find that Smith was equitably estopped from relying on his defense that he was not bound because he did not execute the contract. Though we will not assume that the trial court found that Smith intentionally deceived Direct Media, the evidence authorized the court to find Smith culpable of such gross negligence as to amount to constructive fraud.

If, as Smith contends, he never intended to be contractually liable to Direct Media for the advertisement because he did not sign the order form, then his conduct toward the advertising company was misleading. Smith negotiated extensively for his advertisement to be placed on the back cover of Direct Media’s phone directory, he paid a large deposit for this advertisement, he met frequently with a Direct Media representative to create the advertisement, and he provided Direct Media with documents detailing how he wanted the advertisement to appear. There is no evidence that, throughout this entire process, Smith gave any indication to Direct Media that he did not consider himself liable for the advertisement on the back cover. Even when Direct Media sent Smith the proofs of the final advertisement with a notice that his failure to return the proof would constitute acceptance, Smith failed to apprise the company that he did not consider himself financially liable under the parties’ agreement because he did not sign the order form.

The evidence also shows that Direct Media was misled by Smith’s conduct. Obviously, Direct Media was impressed by Smith’s $2,000 deposit and his active participation in the creation of his advertisement. The company continued developing the advertisement blissfully ignorant that Smith never intended to be financially bound for the advertisement. Likewise, Direct Media continued to rely on Smith’s conduct when he failed to return the advertisement proof by the stated deadline. In light of Smith’s considerable working relationship with Direct Media, and his acknowledgment that he received the advertisement proof, his failure to return the proof, if not intentional, was certainly misleading.

Finally, the trial court was authorized to find that Direct Media was injured by Smith’s conduct. The evidence showed that the company had expended significant resources creating the advertisement, and that it did not learn of Smith’s true intentions until after the deadline for accepting advertisements had expired. Direct Media was thus left with the option of publishing Smith’s advertisement in its premium position, or none at all.

Under these circumstances, we conclude that there was no clear error in the trial court’s implied finding that Smith was equitably estopped from denying the existence of the contract.

2. Smith also asserts that he is not liable for the advertisement because he never approved the advertisement proof sent to him by Direct Media. The basis for this argument is unclear. As stated above, Direct Media expressly informed Smith that his failure to return the proof by the deadline, “will result in the printing of your ad as shown above.” We thus find no clear error by the trial court based on this argument.

Decided February 1, 2001.

W. Lance Smith III, pro se.

Joseph E. East, for appellee.

3. Finally, Smith asserts the trial court erred in entering judgment against him because the Statute of Frauds required a written contract. In light of our conclusion in Division 1 that Smith is estopped from denying the existence of a contract, it is unnecessary to address this assertion. Moreover, we note that the principles of estoppel relied on above underlie OCGA § 13-5-31, which exempts certain partially performed contracts from the Statute of Frauds.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

       Although Smith enumerates a second claim of error, he has not supported this claim by citation of authority or argument, and it is therefore deemed abandoned. See Court of Appeals Rule 27 (c) (2).

       See Fontaine v. Sidelines IV, Inc., 245 Ga. App. 681, 682 (1) (538 SE2d 137) (2000).

       See id.

       See OCGA § 9-11-52 (a).

       See Nat. Chemco v. Union Camp Corp., 209 Ga. App. 317, 318 (433 SE2d 691) (1993).

       See 20/20 Vision Center v. Hudgens, 256 Ga. 129, 134-135 (6) (345 SE2d 330) (1986).

       OCGA § 24-4-24 (b).

       OCGA § 24-4-27.

       See Gainesville Glass Co. v. Don Hammond, Inc., 157 Ga. App. 640, 645 (2) (278 SE2d 182) (1981); see also Crystal Blue Granite Quarries v. McLanahan, 261 Ga. 267, 269 (3) (404 SE2d 266) (1991) (finding sufficient evidence for factfinder to determine that lessor was equitably estopped from denying existence of lease even though the parties did not execute a lease); Hood v. Duren, 33 Ga. App. 203, 206 (125 SE 787) (1924) (ruling that, in light of the surrounding circumstances, defendant was estopped from asserting his minority in defense of a contract where plaintiff was induced to act to his injury by reason of the false and fraudulent representation of the defendant with respect to his apparent majority).

       See Eiberger v. West, 247 Ga. 767, 769 (1) (a) (281 SE2d 148) (1981).

       See Hendricks v. Enterprise Financial Corp., 199 Ga. App. 577, 579-580 (2) (405 SE2d 566) (1991).


author: Johnson, Presiding Judge.

text:
    A00A2189.
    TURNER v. THE STATE.
    (544 SE2d 765)
   Johnson, Presiding Judge.

A jury found Jamie Turner guilty of possession of cocaine with intent to distribute. He challenges the conviction, contending that the trial court erred in denying his motion for a directed verdict of acquittal, denying his motion to reveal the identity of a confidential informant, denying his motion to suppress, denying his motion for a continuance so he could retain counsel of his own choosing, denying his motion for a mistrial after a police officer testified to what the informant told him, and overruling his objection to the prosecutor’s reference to him as a “drug dealer” in closing argument. Because each of these challenges is without merit, we affirm his conviction.

Viewing the evidence in a light most favorable to support the verdict, the evidence shows that a confidential informant advised a police officer that he could buy cocaine from Turner at Turner’s home. The officer arranged for the informant to conduct two controlled purchases of cocaine from Turner’s home. After the purchases took place, the officer filed an affidavit with the magistrate and obtained a warrant to search the premises.

On the day the warrant was executed, Turner’s girlfriend had dropped off the couple’s infant for him to watch, Turner’s father had left for work, and Turner’s father’s girlfriend had left the home and was visiting a neighbor. The police officers opened the front door and walked into the living room. They saw Turner and his girlfriend, who had just returned minutes earlier, standing in front of the living room sofa. The infant was sleeping on the sofa. No one else was in the house. The officer told Turner that he had a warrant to search the premises for cocaine. Turner told the officers, “[Y]ou all came too early, the Force Boys were going to deliver some, but they won’t now. There ain’t nothing here. I can help you all. I do know who has some right now.” According to the officer, the “Force Boys” is a group known for trafficking in cocaine. While searching the living room, one of the officers looked beneath the seat cushion upon which the infant had been sleeping and found a plastic bag containing 22 small bags of crack cocaine. The officer showed it to the other officers. Turner remarked, “[Y]ou’ve got me, but [my girlfriend] didn’t do it.” The state also introduced similar transaction evidence showing that in 1991 Turner pled guilty to a charge of possession of cocaine with intent to distribute.

1. Turner’s claim that he was entitled to a directed verdict of acquittal because other people had been in the house earlier that day and had equal access to the premises is without merit.

Under the equal access rule, the mere fact that contraband is found on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime. Whether evidence of equal access is sufficient to rebut the inference that the defendant possessed the contraband is a question for the jury. Generally, a directed verdict of acquittal should be granted only where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law.

In this case, the jury was thoroughly instructed on the law regarding equal access and also on the law concerning sole and joint possession. It was not required to believe Turner’s testimony that he did not place the cocaine under the seat cushion. The jury was entitled to conclude that Turner, at the very least, was in joint possession of the drugs found in his home, right next to where he was standing, and underneath the infant for whom he was caring. This is particularly true given his admission that the officers “got” him, his statement that his girlfriend did not do anything, and his prior conviction for possession with intent to distribute cocaine. The trial court did not err in denying his motion for a directed verdict of acquittal.

2. Turner contends the trial court erred in not revealing the identity of the confidential informant. There was no error.

At the outset, we point out that public policy in Georgia favors nondisclosure of an informant’s identity. Indeed, OCGA §§ 24-9-21 (4) and 24-9-27 (d) prohibit disclosure of the identity of a confidential informant who was not an eyewitness to the offense being prosecuted, although the informant may have seen the defendant in possession of the contraband at an earlier time, but did not participate in the offense.

In determining if the informant’s identity should be revealed by the state, the trial court must conduct a two-step hearing. Initially, the trial court should hear evidence to determine: (a) that the confidential informant is an alleged informer-witness or informer-participant whose testimony appears to be material to the defense on the issue of guilt or punishment; (b) that the testimony for the prosecution and the defense is or will be in conflict; and (c) that the confidential informant was the only available witness who could amplify or contradict the testimony of these witnesses. The defendant must establish the relevance and materiality of the testimony and the necessity of disclosing the identity of the informant. Once this threshold has been met, the trial court must conduct an in camera hearing of the informant’s testimony and balance the public interest in protecting the flow of information against the defendant’s right to prepare his defense.

Turner was indicted for possessing with intent to distribute the cocaine found in his living room. He was not charged with selling cocaine to the confidential informant. The informant was not present during the search and arrest and was neither a participant in nor a witness to the specific offense with which Turner was charged. His testimony would not have been material to the issue of Turner’s guilt or punishment. Thus, the threshold requirements of the first step of the inquiry were not met, and the trial court did not err in refusing to require the state to reveal the informant’s identity.

3. The trial court did not err in denying Turner’s motion for a mistrial based on the police officer’s testimony that the confidential informant bought cocaine from Turner inside his home twice before the search warrant was obtained. According to Turner, this testimony should not have been admitted because the officer did not go inside the home and knew what happened based only on hearsay. No mistrial was required.

At trial, the officer testified that on two occasions the confidential informant was searched to make sure he had no drugs or money, was given funds, and was watched as he walked to the front door of Turner’s home. The officer saw the informant meet Turner at the door and go inside. On both occasions, the informant stayed about five minutes, then returned directly to the car, and handed the officer cocaine which, according to the officer, the informant had purchased from Turner. Defense counsel objected, and the jury was removed from the courtroom. Turner moved for a mistrial, arguing that the testimony was hearsay, that he did not know the informant’s identity, and that he was not able to cross-examine the nontestifying informant. The trial court denied Turner’s motion for a mistrial, but told counsel that he would instruct the officer not to comment about what happened inside the residence, as he was not a witness to that.

When the jurors came back in, the trial court instructed them that hearsay is inadmissible, that they should strike from their recollection the officer’s statement that the informant bought cocaine from Turner inside the residence, and that Turner is being tried only for the charge contained in the indictment, namely, possession of cocaine with intent to distribute. Turner claims the curative instruction was insufficient and argues that a mistrial was required.

Under the circumstances, we fail to see any harm. The officer testified, without objection, that he checked the informant beforehand, watched him meet Turner at the door, go into and come out of Turner’s home, and met him when he returned with cocaine. Given that testimony and the trial court’s instruction to the jury to ignore the officer’s státement regarding what happened inside the house, it is not likely that the officer’s statement that the informant bought the drugs from Turner contributed to the verdict. Reversal is not required.

4. The trial court did not err in denying Turner’s motion to suppress an oral statement he allegedly made to police and all physical evidence seized from his residence. According to Turner, suppression was required because the search warrant was based solely on the word of a confidential informant and was therefore illegal.

In making a determination as to whether there is probable cause necessary to support the issuance of a warrant, the task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit, including the veracity and basis of knowledge of the person supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found at a particular place. The task of a reviewing court is to determine if there is substantial evidence in the record to support the magistrate’s issuance of the warrant.

In his affidavit in support of the search warrant, the police officer states that he has known the informant for about one year and that the informant has been responsible for the seizure of about ten grams of cocaine and the arrest of about three felony suspects. The officer further states that within the last 72 hours, he met with the informant, searched him, gave him money, watched him as he went into Turner’s residence, watched him leave a short while later, and was handed the cocaine by the informant when he left the residence. The officer adds that the informant told him that there was more cocaine in the residence and that it was for sale.

There was sufficient information in the affidavit to establish probable cause for the warrant. The affiant included facts showing the informant’s reliability. And, even if the informant had no known credibility, the controlled buy conducted under the observation of the officer, alone, would have been sufficient to establish probable cause. The trial court did not err in denying the motion to suppress.

5. The trial court did not improperly deny Turner’s request for a continuance so that he could hire an attorney to replace his court-appointed trial counsel.

The record shows that before July 10, 1995, Turner announced that he was ready to proceed with trial. On July 10, Turner requested a continuance because he needed more time to prepare for trial. The trial court denied the motion. When the case was called for trial on July 11, 1995, Turner again asked for a continuance, this time so that he could hire retained counsel. He added, “I ain’t saying [the court-appointed attorney] is no bad lawyer or anything, but I just want to get one to represent me now.” Turner told the court that the reason he had not retained a private attorney in the nearly 12 months since he was charged was that the investigating police officer had told him that the case would never go to trial. The trial court pointed out that Turner was arraigned two months earlier, that he knew at least by then that the case was going to trial, that the jury had been waiting two days to try the case, and that, until now, Turner had said nothing about wanting to hire another attorney. After noting the significant actions taken by and numerous motions made by appointed counsel on Turner’s behalf, the trial court denied the motion for a continuance.

Decided February 1, 2001.

Wayne L. Burnaine, for appellant.

Motions for continuance based on insufficient time to hire or substitute trial counsel are addressed to the sound discretion of the trial court, and the trial court’s ruling will not be reversed absent an abuse of discretion. The trial court may consider the conduct of a party in order to prevent a party from using the employment of counsel as a dilatory tactic. The party requesting the continuance must show that he exercised due diligence. We cannot say that the trial court abused its discretion in denying Turner’s motion for a continuance.

6. Turner complains that the trial court should have sustained his objection to the prosecutor’s reference to him in his closing argument as a “drug dealer.” He contends that no admissible evidence showed that he was selling drugs, and he was not charged here with selling drugs. This enumeration presents no grounds for reversal.

In closing argument, the prosecutor remarked that undercover operations are necessary “to catch drug dealers. This is a drug dealer.” Defense counsel objected, arguing that Turner was not charged with selling drugs. The trial court noted that wide latitude is given during closing, overruled the objection, then instructed the jury to recall the evidence and consider the indictment during deliberations.

While counsel should not be permitted in argument to state facts which are not in evidence, it is permissible to draw inferences from the evidence, and the fact that the deductions may be illogical, unreasonable, or even absurd is a matter which may be addressed by opposing counsel in his or her closing argument. Although he was not charged with selling drugs, given Turner’s prior conviction of possession of cocaine with intent to distribute and the amount and packaging of the cocaine found in this case, it clearly could have been inferred that Turner was dealing drugs. Even so, the trial court reminded the jury of the evidence and the indictment. This enumeration is without merit.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

Daniel J. Porter, District Attorney, David K. Keeton, Assistant District Attorney, for appellee.

        Tran v. State, 246 Ga. App. 153, 159 (6) (539 SE2d 862) (2000).

       Id.

        Murray v. State, 203 Ga. App. 858, 864 (7) (418 SE2d 624) (1992).

       See Tran, supra; Kahn v. State, 235 Ga. App. 229, 231 (1) (b) (509 SE2d 137) (1998).

        Roden v. State, 181 Ga. App. 287, 290 (1) (351 SE2d 713) (1986) (physical precedent only).

        Leonard v. State, 228 Ga. App. 792, 794 (2) (492 SE2d 747) (1997).

        Harvey v. State, 232 Ga. App. 21, 23 (500 SE2d 916) (1998).

       Id.

       Id.

       Id.; see Ivory v. State, 234 Ga. App. 858, 860 (2) (508 SE2d 421) (1998).

       See generally Brinson v. State, 268 Ga. 227, 228 (2) (486 SE2d 830) (1997); Jackson v. State, 217 Ga. App. 485, 489 (4) (c) (458 SE2d 153) (1995) (physical precedent only); Nelson v. State, 197 Ga. App. 898, 900 (2) (399 SE2d 748) (1990).

        Lewis v. State, 234 Ga. App. 873, 874-875 (1) (a) (508 SE2d 218) (1998).

       Id.

       Id. at 875; Brown v. State, 244 Ga. App. 440, 442 (1) (535 SE2d 785) (2000).

        Choat v. State, 246 Ga. App. 475, 476 (1) (540 SE2d 289) (2000).

       Id.

       Id.

       See Sanders v. State, 245 Ga. App. 701, 702 (1) (538 SE2d 772) (2000).

       See Ward v. State, 193 Ga. App. 137, 140 (5) (387 SE2d 150) (1989).

       Id.


text:
    A00A2190.
    BUSBY v. WEBB.
    (545 SE2d 132)
   Johnson, Presiding Judge.

Although Virginia Busby raises seven enumerations of error in this appeal, there is but one central issue: Whether the trial court erred in dismissing her personal injury action because she “did not exercise the greatest possible diligence” in serving defendant Jennifer Webb with process. Because the trial court applied an improper legal standard in reaching its decision, we reverse its judgment and remand the case with direction that it consider the motion to dismiss using the appropriate standard.

The record shows the following: Busby and Webb were involved in a car accident on July 17, 1997. Busby filed an action against Webb in Cobb County on July 8,1999. Busby indicated on the service documents that Webb could be served at the Cobb County address shown on the traffic citation. The sheriff’s department attempted to serve Webb at that address on July 11, 1999, but she had moved.

Busby then employed an independent process server. Although the process server made “a number of attempts to find and serve” Webb throughout August 1999, he was unable to do so.

Busby hired a new attorney, and, on September 15, 1999, her new attorney hired a private investigator to locate Webb. On October 6, 1999, the investigator told Busby’s attorney that he had a new address in Union County for Webb. The investigator was unable to verify the address, but counsel decided to try to serve Webb at that address. Busby’s attorney sent a letter to the Union County court clerk’s office requesting second original process documents. On November 10, 1999, after receiving the second original process documents from the clerk, counsel mailed them to the Union County Sheriff’s Department for service. Counsel called the sheriff’s office several times to check on service. The sheriff’s department returned the process by mail with a form dated December 1, 1999, indicating that service was attempted, but that Webb was not found in Union County.

On December 25, 1999, the investigator notified Busby’s attorney that he found a Fulton County address for Webb. On December 30,1999, counsel mailed the complaint to the Fulton County Sheriff’s Department for service. Busby’s attorney called the clerk several times to check on service. In early January 2000, counsel received a form from the sheriff’s department indicating that Webb had not been found. The investigator had continued searching for Webb while the sheriff’s department had the complaint.

On January 18, 2000, before she had been served, Webb filed an answer and special appearance contesting service. She moved to dismiss the suit, asserting that the statute of limitation had expired without her being properly served.

On January 19, 2000, the investigator notified counsel that he had a new Cobb County address for Webb. Counsel then mailed the complaint to the Cobb County court clerk’s office for service. Webb was served on January 31, 2000.

The trial court granted Webb’s motion to dismiss, finding that Busby “did not exercise the greatest possible diligence to ensure proper and timely service.” We agree with Busby that the trial court erred in basing its decision on whether she exercised “the greatest possible diligence,” rather than on whether she used “reasonable diligence” in attempting to serve Webb.

When a complaint is filed within the applicable statute of limitation, but service is not perfected within five days or within the period of limitation, the service relates back to the original filing only if the plaintiff shows that he acted in a reasonable and diligent manner in attempting to ensure that a proper service was made as quickly as possible. If a defendant’s answer raises the issue of defective service, however, a plaintiff is, from that point forward, obligated to exercise not due diligence, but the greatest possible diligence to ensure proper and timely service. Inasmuch as Webb filed no defensive pleading raising the service issue until January 18, 2000, the greatest possible diligence standard did not apply before Busby received the answer filed on that date. Thus, the trial court should have analyzed Busby’s actions before that date using the reasonable diligence standard, not the greatest possible diligence standard.

Ordinarily, a judgment right for any reason must be affirmed, but where it is apparent that the trial court rests its judgment on an erroneous legal theory, it commits reversible error. Accordingly, we must reverse the trial court’s judgment and remand the case for a determination of whether Busby acted in a reasonable and diligent manner in attempting to serve Webb. On remand, we point out that Busby had the responsibility to investigate and learn where Webb could be served and to serve her as quickly as possible. Busby also has the responsibility of showing that the failure to timely serve Webb was not her fault.

Decided February 1, 2001.

John E. Gilchrist, for appellant.

Allen & Associates, Arthur L. Myers, Jr., for appellee.

Judgment reversed and case remanded with direction.

Smith, P. J., and Phipps, J., concur.

        Patterson v. Johnson, 226 Ga. App. 396, 397-398 (486 SE2d 660) (1997); Parker v. Shreve, 244 Ga. App. 350, 351 (535 SE2d 332) (2000) (physical precedent only).

        Ingraham v. Marr, 246 Ga. App. 445, 447 (2) (540 SE2d 652) (2000); see Patterson, supra; Exum v. Melton, 244 Ga. App. 775, 776 (2) (a) (536 SE2d 786) (2000); White v. Jones, 244 Ga. App. 485, 487 (2) (536 SE2d 167) (2000). See also Presiding Judge Pope’s discussion of the distinctions between the two standards in his special concurrence in Wade v. Whalen, 232 Ga. App. 765, 770-773 (504 SE2d 456) (1998) (physical precedent only); Judge Pope’s position is expressly approved in Davis v. Bushnell, 245 Ga. App. 221, 222 (537 SE2d 477) (2000).

       See generally U. S. Fidelity &c. Co. v. Reid, 268 Ga. 432, 434 (491 SE2d 50) (1997).

       See McKoon v. Jones, 214 Ga. App. 40, 42 (447 SE2d 50) (1994); Sumner v. Dept. of Human Resources, 225 Ga. App. 91, 93-94 (2) (483 SE2d 602) (1997).

       See Patterson, supra.

       See White, supra.


author: Barnes, Judge.

text:
    A00A2219.
    WILLIAMS v. THE STATE.
    (545 SE2d 343)
   Barnes, Judge.

Artravious Williams pled guilty to aggravated assault. The trial court sentenced him to thirteen years, to serve six in prison. The trial court also ordered him to pay restitution. Williams appeals the restitution order, arguing that the amount exceeds the victim’s damages and that the trial court failed to consider certain factors and to make written findings of fact. We reverse that portion of the restitution order without sufficient evidence to support the amount of restitution ordered and remand the case to the trial court with direction.

At the restitution hearing, the victim stated that Williams shot him in the shoulder and neck area on July 24,1998. He was hospitalized for 21 days and continued hand therapy thereafter. The victim testified that he incurred medical expenses of $94,595.56 from Grady Hospital and $7,785 at Emory Medical Care Foundation. He further testified as to lost wages, stating that he had worked three or four days each week cutting grass and earned $50 to $75 per day. After he was shot, he did not work for nine months.

Williams, 24 years old at the time of the restitution hearing, testified that before his incarceration, he was earning $8.50 per hour, catering at Phillips Arena. He stated that he had a tenth grade education and planned to work after being paroled, testifying that he had no disabilities that would prevent him from doing so. He planned on living with his mother upon his release.

The trial court totaled the victim’s lost wages at $8,100, calculating the lost wages as $75 per day, for twelve days during each of the nine months. To that amount, the trial court added medical expenses of $94,595 and $7,785, ordering Williams to pay $110,480 in restitution. Williams appeals.

1. Williams contends that the trial court erred by not considering all statutory factors outlined in OCGA § 17-14-10 and by not making specific written findings of fact as required by OCGA § 17-14-8.

Code sections 17-14-8 through 17-14-10 contemplate a hearing and specific written findings by the court in determining whether it will order restitution and, if so, the amount thereof. OCGA § 17-14-10 lists several specific factors which must be considered by the court before ordering restitution.

(Citations, punctuation and emphasis omitted.) Britt v. State, 232 Ga. App. 780, 781 (2) (503 SE2d 653) (1998). Here, although the trial court held a restitution hearing, the transcript does not disclose that it considered each of those factors, and the trial court did not enter specific written findings. Consequently, the restitution order is vacated and the case remanded so that the trial court can conduct a hearing in compliance with OCGA § 17-14-10 and enter written findings of fact relating to the factors set forth therein. See Slater v. State, 209 Ga. App. 723, 725-726 (4) (434 SE2d 547) (1993).

2. Williams also contends that the evidence was insufficient to support the amount of restitution. “The amount of restitution ordered may be equal to or less than, but not more than, the victim’s damages.” OCGA § 17-14-9. The maximum amount of restitution recoverable in a criminal case is that which would be recoverable in a civil action. Lawrenz v. State, 194 Ga. App. 724 (1) (391 SE2d 703) (1990). The sufficiency of evidence to support an order of restitution should be measured by the civil standard of preponderance of the evidence. Id. at 725.

(a) Williams argues that the amount of restitution for medical expenses exceeded the victim’s damages. He complains that the only evidence of the amount of the Grady Hospital medical expenses was the victim’s testimony and argues that the evidence of the amount of the Emory medical expenses was improperly based upon inadmissible hearsay.

At the hearing, when the State questioned the victim as to the amount of medical expenses he had incurred, the victim responded, “In total, I had two bills that I was given, and I have one on me today for seven thousand, seven hundred and some odd dollars.” The record reveals, however, that the “bill” admitted into evidence was actually a notice that Emory Medical Care Foundation had placed his account with a collection agency. It listed an amount due of $7,785 and an incurred date of December 15, 1998. Although the victim also testified that he had received the second bill from Grady Hospital in an amount of $94,595.56, no medical bill from Grady was introduced. Further, the victim stated that he was unsure whether the charges that Grady billed duplicated the Emory charges.

Decided February 1, 2001.

Gayle D. Bacon, for appellant.

J. Tom Morgan, District Attorney, Kristin L. Wood, Assistant District Attorney, for appellee.

Absent a foundation for admission as a hearsay exception, the collection notice and the testimony regarding the contents of medical bills were inadmissible and should not have been considered by the trial court. OCGA § 24-3-1 et seq.; Britt v. State, 232 Ga. App. 780 (1) (503 SE2d 653) (1998); contrast Barnes v. State, 239 Ga. App. 495, 498 (1) (521 SE2d 425) (1999) (recognizing that determining market value is a matter of opinion and ruling that market value may rest wholly or in part upon hearsay). Exclusion of such testimony and the collection notice leaves the record without sufficient evidence regarding the amount of medical expenses. Thus, on remand, the trial court is instructed to determine such damages after a hearing upon competent evidence. See Cardwell v. State, 225 Ga. App. 337, 338 (484 SE2d 38) (1997).

(b) Williams argues that the amount of restitution for lost wages exceeded the victim’s damages. But the fact that Williams points to other evidence that could have permitted the factfinder to arrive at a different amount of damages goes only to the weight of the evidence before the trial court, not to its sufficiency. Anderson v. State, 226 Ga. App. 286, 288 (486 SE2d 410) (1997). This Court’s review of evidence is limited to questions of sufficiency, id., and after reviewing the record, we conclude that the evidence of lost wages was sufficient and the amount of restitution for lost wages did not exceed the victim’s damages. See generally Fewox v. State, 243 Ga. App. 651, 652 (534 SE2d 121) (2000) (value of collection of compact discs calculated using an average price per disc).

Restitution order vacated and case remanded with direction.

Blackburn, C. J., and Eldridge, J., concur.