text:
    A94A1279.
    LAWSON v. THE STATE.
    (448 SE2d 14)
   Blackburn, Judge.

Following a trial by jury, the appellant, Larry Eugene Lawson, was convicted of three counts of possession of a firearm during the commission of a crime, two counts of armed robbery, and one count each of kidnapping and burglary. Lawson was acquitted of theft by taking a motor vehicle and possession of a firearm during the commission of this theft. His motion for new trial was subsequently denied by the trial court and this appeal followed. On appeal, Lawson challenges the sufficiency of the evidence to support his convictions and the trial court’s failure to charge the jury as specifically requested.

The evidence viewed in the light most favorable to the jury’s verdict shows that at approximately 6:30 on the evening of May 31,1992, the two victims, Malachi Cannon and Steven Carter, were on a street adjacent to Cannon’s home washing Cannon’s automobile when they were approached by three men, one of whom was armed with a sawed-off shotgun. Lawson, who was identified at trial and in a prior photographic array as the individual wielding the shotgun, demanded that the men provide him with money and jewelry and subsequently directed the men into Cannon’s garage. Thereafter, the men again demanded the victims’ money and jewelry. Cannon gave the men two rings and a watch while Carter placed four dollar bills and eighteen cents on the floor. One of the assailants proceeded inside the house in search of the requested items and Lawson threatened to kill the victims if any money or jewelry was found inside the residence. As Lawson pointed the shotgun at Carter’s head, he threatened to kill Carter and further stated that he knew Carter’s mother and that he would kill her also. Following the unsuccessful search of the home, one of the assailants hit the victims on the head with a clipboard. The men later fled after they instructed the victims to lie down on the floor.

Cannon, determined to locate the perpetrators, searched several neighborhoods for the assailants. He later saw Lawson walking down the street wearing his stolen watch after he and Carter had seen Lawson previously in this neighborhood. Cannon informed Detective Mitchell with the Savannah Police Department of Lawson’s whereabouts and Cannon and a friend accompanied the detective to the location where Cannon later identified Lawson as his assailant. Lawson was subsequently detained by Detective Mitchell, informed that he was a suspect in a robbery and had been identified by one of the victims, and was taken to the police precinct for questioning. Lawson provided the detective with a fictitious name and he was wearing Cannon’s watch which he tried to conceal from the police. Lawson and his mother contacted the victims, apologizing for Lawson’s actions, and offering to repay them for the jewelry and money that had been taken.

Lawson and several witnesses testified at trial in support of his defense. His mother and Edith Smith, the mother of two of Lawson’s friends, both testified that Cannon had expressed some uncertainty as to whether Lawson was one of the perpetrators. During his testimony, Lawson denied committing the offenses and denied informing Cannon that he had committed the offenses. He further averred that he had purchased the watch from someone on the street and had been at the home of Ms. Smith’s mother at the time of the robbery. Lawson initially testified on direct examination that this was the first time he had been arrested, but on cross-examination he admitted that he had been previously arrested for burglary and disorderly conduct. Lawson does not challenge the trial court’s admission of his prior offenses.

1. Lawson’s contention that the evidence is insufficient to support his conviction is without merit because a rational trier of fact could have found him guilty of the offenses for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Ellis v. State, 211 Ga. App. 605 (2) (440 SE2d 235) (1994); Autry v. State, 210 Ga. App. 150 (1) (435 SE2d 512) (1993); Brooks v. State, 208 Ga. App. 869 (432 SE2d 612) (1993). “While [Lawson] presented an alibi defense and questioned whether the [victims’] identification testimony was reliable, it is the task of the jury to weigh the evidence, determine credibility, and resolve conflicts in the testimony. This Court does not reweigh the evidence, but only determines whether it is legally sufficient.” Seats v. State, 210 Ga. App. 74, 75 (435 SE2d 286) (1993).

2. Lawson further asserts that the trial court erred in failing to give his requested charges on the presumption of innocence and the sufficiency of the evidence to warrant a conviction. However, the charges given by the trial court on those issues substantially covered the same principles of law. As we stated in Pierce v. State, 209 Ga. App. 366, 368 (3) (433 SE2d 641) (1993), “[i]t is well settled that the trial court is not obligated to instruct the jury in the exact language requested and that, where the same principle of law is covered in another instruction, failure to give the requested charge is not error.” (Citations and punctuation omitted.)

While Lawson also maintains that the trial court erred in failing to charge the jury “[t]hat mere presence of a weapon is insufficient to sustain a conviction of armed robbery,” relying on Hicks v. State, 232 Ga. 393 (207 SE2d 30) (1974), the evidence produced at trial did not authorize such a charge. In the case sub judice, unlike in Hicks, the shotgun was used as a concomitant to the taking of the victims’ property. “Thus, the requested charge was not properly adjusted to the facts in this case[,] [and] [i]f any portion of the request is inapt, incorrect, or not authorized by the evidence, denial of the request is proper.” (Citations and punctuation omitted.) Sparkman v. State, 209 Ga. App. 763, 765 (2) (434 SE2d 564) (1993). Consequently, we find no error in the trial court’s failure to instruct the jury as requested, and Lawson’s convictions must be affirmed.

Decided July 28, 1994

Reconsideration denied August 18, 1994

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, June E. Fogle, Assistant District Attorney, for appellee.

Judgment affirmed.

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


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A94A1315.
    LONG v. WALLACE.
    (448 SE2d 229)
   McMurray, Presiding Judge.

Original plaintiff Ernest F. Long, Jr., brought this legal malpractice action against Howard P. Wallace (defendant) alleging that defendant “provided ineffective legal assistance to Mr. Long in Mr. Long’s trial, appeal and in the post-appeal process [and due] to Defendant’s ineffective legal assistance, Mr. Long was found guilty of statutory rape.” Defendant denied the material allegations of the complaint and moved for summary judgment on the basis of the statute of limitation. The following material facts are undisputed: Defendant was retained on February 18, 1986 to represent Ernest F. Long, Jr., during a felony prosecution and beyond, if necessary. Trial commenced on November 18, 1986. On November 20, 1986, the jury returned a guilty verdict and Ernest F. Long, Jr., was sentenced immediately. Although defendant pursued a direct appeal, Ernest F. Long, Jr.’s, conviction was affirmed on November 2, 1988. See Long v. State, 189 Ga. App. 131 (375 SE2d 274). No contention was raised on that direct appeal that defendant’s legal representation of Ernest F. Long, Jr., had been ineffective. Nevertheless, proceeding pro se, Ernest F. Long, Jr., obtained relief via habeas corpus on February 9, 1991, predicated upon ineffective assistance of trial counsel. The habeas court found that defendant failed to interview key witnesses and failed to object or seek corrective action to prevent “coaching of the alleged victim’s testimony by the employee of the Department of Family and Children’s Services” by giving the victim signals in the courtroom on how to testify. This malpractice action was commenced on March 18,1992. On March 10, 1993, the trial court “granted Plaintiff’s Motion to Substitute Mildred M. Long, as the executrix of Ernest F. Long, Jr.’s estate, as the Plaintiff,” as the original plaintiff Ernest F. Long, Jr., had died in September 1992.

Plaintiff Mildred M. Long, as executrix, appeals from the order of the trial court granting defendant’s motion for summary judgment. Held:

1. Defendant’s motion to dismiss this appeal as untimely is denied.

2. In related enumerations of error, plaintiff contends the trial court erred in granting defendant’s motion for summary judgment. Ms. Long argues Ernest F. Long, Jr.’s suit is timely since his contract with defendant included legal representation through the appeal and post-appeal process, and defendant committed malpractice during that phase of his representation by failing to urge his own ineffective assistance as a basis for vacating Mr. Long’s conviction.

“In Georgia legal malpractice is based upon the breach of a duty imposed by the attorney-client contract of employment, and as such, the applicable statute of limitation is four years. Code Ann. § 3-706 [now OCGA § 9-3-25]; Gould v. Palmer [& Read], 96 Ga. 798 (22 SE 583); Riser v. Livsey, 138 Ga. App. 615 (227 SE2d 88). It is clear that an action for attorney malpractice accrues and the period of limitations begins to run, from the date of the attorney’s breach of duty, that is, from the date of the alleged negligent or unskillful act. Hoffman v. Ins. Co. of N. America, 144 Ga. App. 420 (241 SE2d 303); Master Mortgage Corp. v. Byers, 130 Ga. App. 97 (202 SE2d 566).” Riddle v. Driebe, 153 Ga. App. 276, 279 (265 SE2d 92). Accord Hyman v. Jordan, 201 Ga. App. 852, 853 (1) (412 SE2d 615). In the case sub judice, Mr. Long’s cause of action accrued and the period of limitation began to run when defendant committed unskillful acts during Mr. Long’s trial for statutory rape in November 1986. This was more than five years before the complaint was filed. Consequently, any claim Mr. Long might have had against defendant in contract for acts or omissions committed during the trial is “subject to a four-year statute of limitation [and] ... is time barred. Ballard v. Frey, 179 Ga. App. 455, 459 (3) (346 SE2d 893) (1986); Hamilton v. Powell, Goldstein, Frazer & Murphy, 167 Ga. App. 411, 412-413 (306 SE2d 340) (1983), aff’d 252 Ga. 149 (311 SE2d 818) (1984); OCGA [§] 9-3-25. . . .” Hyman v. Jordan, 201 Ga. App. 852, 853 (1), supra.

Nevertheless, plaintiff Ms. Long contends that defendant committed separate subsequent acts of malpractice during his representation of Mr. Long by failing to urge his own ineffective assistance as a basis for new trial on direct appeal or in a petition for habeas corpus. However, these allegations of malpractice are based upon the same errors and omissions arising out of the conduct of Mr. Long’s trial. In essence, plaintiff Ms. Long contends that defendant’s failure to correct earlier actions which damaged his client constitutes a separate breach for which the client has a cause of action. This contention is determined adversely to plaintiff by Jankowski v. Taylor, Bishop &c., 246 Ga. 804, 806 (2) (273 SE2d 16). In Jankowski, the Georgia Supreme Court held that such an “omission on the part of [the attorney] was a failure to avoid the ultimate effect of the earlier breach and a failure to mitigate . . . damages [but] was not an act inflicting new harm.” Jankowski v. Taylor, Bishop &c., 246 Ga. 804, 806 (2), 807, supra. In the case sub judice, the failure of the defendant attorney to argue on appeal his own possible ineffective assistance rendered during trial was not a separate act of malpractice for purposes of the statute of limitation. Consequently, the trial court’s grant of summary judgment was correct.

Decided August 2, 1994

Reconsideration denied August 18, 1994

Gary P. Bunch, for appellant.

Albert B. Wallace, Stephen B. Wallace II, for appellee.

3. Defendant’s motion for sanctions pursuant to Court of Appeals Rule 26 (b) is denied.

Judgment affirmed.

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


text:
    A94A1389.
    MINICUCCI v. THE STATE.
    (448 SE2d 34)
   McMurray, Presiding Judge.

Defendant was charged via uniform traffic citation with the offense of driving under the influence. A jury found him guilty and he appeals. Held:

1. In his first enumeration, defendant contends the trial court erred in failing to grant his oral motion to quash and dismiss the traffic citation. He argues that the traffic citation was defective under OCGA § 17-4-23 (a) because it did not list the names of Coweta County Sheriff’s Deputies Jai Robertson and Errol Johnson, the off-duty law enforcement officers who had personal knowledge of the facts leading to his arrest.

OCGA § 17-4-23 (a) provides in pertinent part: “Whenever an arresting officer makes an arrest concerning the operation of a motor vehicle based on information received from another law enforcement officer who observed the offense being committed, the citation shall list the name of each officer and each must be present when the charges against the accused person are heard.” The provisions of this Code section are unrelated to the substantive elements of any traffic misdemeanor charged in a uniform traffic citation. Rather, the interest protected by the requirement that certain law enforcement witnesses be identified on the traffic citation is a criminal defendant’s “reasonable pretrial ‘access to evidence,’ (see California v. Trombetta, 467 U. S. 479, 485 (II) (104 SC 2528, 81 LE2d 413) (1984)) [.]” Bentley v. State, 210 Ga. App. 862, 863 (2) (a) (438 SE2d 110) (interpreting OCGA § 17-7-110). “ ‘Noncompliance with [the] provisions of this statute by the state does not entitle a defendant to a directed verdict of acquittal (or dismissal of the accusation). His available remedies are for a continuance or a mistrial.’ Hunnicutt v. State, 135 Ga. App. 774, 775 (219 SE2d 22).” Maddox v. State, 145 Ga. App. 212 (2) (243 SE2d 636). In the case sub judice, defendant did not claim unfair surprise from the testimony of the unlisted law enforcement officers nor did he seek a continuance or a mistrial. Assuming that Deputies Robertson and Johnson should have been identified on the traffic citation, nevertheless the failure of the issuing officer to do so did not render the traffic citation void. Accordingly, the trial court did not err in overruling defendant’s oral motion to quash. Maddox v. State, 145 Ga. App. 212 (2), supra.

2. In his second enumeration, defendant contends the trial court erred in granting the prosecution’s motion for a continuance and in denying his motion to dismiss for want of prosecution, arguing that a continuance was unwarranted because the absent prosecution witnesses had not been subpoenaed.

“All applications for continuances are addressed to the sound legal discretion of the court and, if not expressly provided for, shall be granted or refused as the ends of justice may require.” OCGA § 17-8-22. Where the time has expired for a defendant to demand his statutory right to a speedy trial, OCGA § 17-8-21 provides in pertinent part, “a continuance shall not be granted to the state, except upon a reasonable showing therefor.” See Blevins v. State, 113 Ga. App. 702 (149 SE2d 423). “The grant of a continuance . . . rests within the sound discretion of the trial court and will not be reversed on appeal absent a showing of abuse. [Cits.]” Stephens v. State, 196 Ga. App. 29 (1) (395 SE2d 353). The absence of a material witness for the state is a reasonable showing within the meaning of OCGA § 17-8-21. Griggs v. State, 35 Ga. App. 663 (2) (134 SE 333). In the case sub judice, the record shows that at least one of the two absent law enforcement witnesses for the state had been issued a subpoena. Consequently, the trial court did not abuse its discretion in granting the state a one-hour postponement due to the absence of this material witness. The denial of defendant’s motion to dismiss for want of prosecution is not supported by citation of authority or argument and so this portion of defendant’s enumeration is deemed to be abandoned pursuant to Court of Appeals Rule 15 (c) (2). Gaston v. State, 211 Ga. App. 116, 117 (4) (438 SE2d 107).

Decided August 3, 1994

Reconsideration denied August 18, 1994

Saia, Richardson & Meinken, Joseph J. Saia, for appellant.

John H. Cranford, Solicitor, for appellee.

Judgment affirmed.

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


author: Blackburn, Judge.

text:
    A94A1798.
    PUGH v. THE STATE.
    (448 SE2d 16)
   Blackburn, Judge.

Following a trial by jury, the appellant, Anthony Pugh, was convicted of one count each of armed robbery, aggravated assault, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon, each offense stemming from the April 19, 1992, robbery of a motel patron. The trial court denied Pugh’s motion for new trial, and this appeal followed.

The evidence viewed in the light most favorable to the jury’s verdict shows that at approximately 11:30 p.m. on April 19, 1992, a man entered Peter Michael Bowen’s motel room at the Villager Lodge in Savannah, aimed a silver revolver at his head, and demanded money and jewelry. The man hit Bowen on the head with the handle of the revolver and Bowen gave the man $40 and his wallet as demanded. Thereafter, the assailant pulled the telephone’s wires from the wall, instructed Bowen to lie down on the floor, and fled the scene.

The police were summoned, and during the ensuing investigation, Bowen was shown a photographic array from which he identified Pugh as his assailant. Bowen also identified Pugh as his assailant at the preliminary hearing and during trial. In addition, a 17-year-old accomplice testified at trial that he remained in an automobile outside the motel room and saw Pugh rob the motel patron. Another accomplice gave an investigating officer a custodial statement implicating Pugh in the robbery. After the jury returned its verdict in the initial stage of the trial, the State, without objection, produced certified copies of Pugh’s prior convictions for two counts of possession of a controlled substance, one count of possession of less than one ounce of marijuana, and one count of entering an automobile with the intent to commit a theft.

1. Initially, Pugh asserts that the jury’s verdict was strongly against the weight of the evidence and the State did not meet the liberal burden of proof established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). We disagree. Viewing the evidence based upon the standard enunciated in Jackson, there was ample evidence from which a rational trier of fact could determine Pugh’s guilt of the offenses charged beyond a reasonable doubt. Id.; Hesterlee v. State, 210 Ga. App. 330 (1) (436 SE2d 32) (1993).

Although Pugh testified that he did not rob the motel patron, the jury was authorized to and did reject Pugh’s testimony in light of the testimony provided by the victim, an investigating officer and two accomplices. While Pugh further challenges the reliability of the victim’s eyewitness identification testimony, this court does not weigh the evidence, resolve conflicts in the evidence, or determine witness credibility. Id. Such tasks, including the determination of the reliability of identification testimony, is within the province of the jury. Id.; Davis v. State, 158 Ga. App. 549 (8) (281 SE2d 305) (1981).

We likewise reject Pugh’s assertion in his sixth enumeration of error that the verdict was based upon a sense of urgency created by the conditions in the jury room since the verdict was overwhelmingly supported by the evidence produced at trial.

2. Next, Pugh, an African-American, challenges the racial composition of the jury panel. Pugh did not question the make-up of the jury until after general voir dire was conducted by the State. However, Pugh “should have challenged the array when it was first put upon him. [Cits.]” Smith v. State, 199 Ga. App. 894 (1) (406 SE2d 532) (1991). “ ‘Georgia statutes and case law indicate . . . that a jury is “put upon” a defendant at the time that the jury array is seated and voir dire commences.’ ” Guest v. State, 186 Ga. App. 318 (1) (367 SE2d 105) (1988). Instead, Pugh waited until after the State conducted a portion of its voir dire before he challenged the array. The record before us does not show that Pugh did not have an opportunity to present his challenge in a timely manner. Id. Consequently, Pugh’s challenge to the jury was untimely.

3. Pugh further argues that the trial court erred in sentencing him as a recidivist because the three prior convictions were based upon guilty pleas and the three convictions should have been counted as only one conviction. While Pugh challenged below the trial court’s authority to sentence him to life in prison under the recidivist statute, Pugh did not raise those issues until he amended his motion for new trial. However, “[w]e do not reach the merits, for ‘errors which raise issues for the first time in a motion for new trial or on appeal present nothing for review. (Cit.)’ [Cits.]” Alonso v. State, 190 Ga. App. 26, 30 (7) (378 SE2d 354) (1989).

4. Next, Pugh asserts that the trial court erred in denying his motion for mistrial when two of the jurors knew co-defendant Joey Horton, who was a witness for the State. Horton participated in the other robberies for which Pugh was not convicted and pled guilty to those offenses. Although both jurors were excused for cause, Pugh maintains that he was prejudiced by the comments made by them. One juror stated that she was Horton’s high school teacher and she thought that Horton was a nice person and that Horton had performed well in her class. She further stated that she was shocked that he would be in trouble. The other potential juror grew up with Horton and had known him for a long time. In response to a question posed by defense counsel, the juror further stated that he and Horton were good friends. Contrary to Pugh’s assertion, those statements were not inherently prejudicial and did not link Pugh to any other criminal violation. See Frady v. State, 203 Ga. App. 833 (418 SE2d 114) (1992). Moreover, Pugh has not shown that the statements influenced the minds of any member of the jury panel prejudicially to him. Id. Accordingly, the trial court did not abuse its discretion in denying his motion for mistrial.

5. In his fifth enumeration of error, Pugh argues that his trial counsel’s performance was so ineffective that he was denied a fair trial. “When inadequate representation is alleged, the critical factual inquiry ordinarily relates to whether the defendant had a defense which was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choices of trial tactics and strategy.” (Citation and punctuation omitted.) Veit v. State, 182 Ga. App. 753, 757 (2) (357 SE2d 113) (1987). See Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

Our review of the record reveals that the errors asserted by Pugh were a matter of trial tactics which do not equate to ineffectiveness of counsel. Sutton v. State, 210 Ga. App. 247 (2) (435 SE2d 748) (1993). The record shows that trial counsel consulted with Pugh, presented available defenses, thoroughly cross-examined the State’s witnesses, and adequately prepared for the trial. The record further reflects that Pugh was effectively defended at trial with trial counsel securing acquittals on two offenses and deadlocking the jury on five other offenses. See Veit, supra. Moreover, Pugh has failed to show that any alleged deficiencies prejudiced his defense. Sutton, supra. See also Strickland v. Washington, supra. Accordingly, we must agree with the trial court that Pugh was not denied effective assistance.

6. Lastly, Pugh asserts that the victim’s identification testimony based on a pre-trial photographic array should have been suppressed because the individuals included in the array did not have similar physical features, and consequently, a new trial is warranted. However, Pugh failed to object to the admission of these photographs or to the identification testimony based on the photographic array provided . by the victim and the investigating officer on this ground. Therefore, this issue is not proper for appellate review. “It is well established that appellate courts may not consider objections to evidence not raised at trial.” (Citation and punctuation omitted.) Nelson v. State, 210 Ga. App. 249, 250 (2) (435 SE2d 750) (1993). Accordingly, Pugh’s conviction is affirmed.

Decided July 28, 1994

Reconsideration denied August 18, 1994

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, Ann M. Elmore, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Johnson, Judge.

text:
    A94A1184.
    McGAHEE v. YAMAHA MOTOR MANUFACTURING CORPORATION OF AMERICA.
    (448 SE2d 249)
   Johnson, Judge.

Keith McGahee was terminated from his employment with Yamaha Motor Manufacturing Corporation of America for alleged sexual harassment and failure to report incidents of sexual harassment allegedly committed by others. He applied for and was awarded unemployment compensation benefits. Yamaha appealed, but at the administrative hearing failed to call as witnesses the employees who claimed to have been sexually harassed. McGahee denied the charges. The administrative hearing officer found Yamaha failed to meet its burden of proving McGahee harassed or witnessed the harassment of employees and affirmed the award. The board of review adopted the hearing officer’s findings and affirmed the decision. Yamaha sought judicial review of the decision, claiming it was against the weight of the evidence and the hearing officer should have considered the hearsay statements of Yamaha’s witnesses. The superior court reversed the board’s decision, though it gave no reasons for doing so. We granted McGahee’s application for discretionary review.

In his sole enumeration of error, McGahee contends the superior court erred in reversing the board’s decision because there was evidence to support the board’s findings of fact and the hearing officer properly gave more weight to the sworn testimony than to the hearsay statements. We agree and reverse. Although it is impossible to determine from the court’s order the basis for the reversal, it is clear the issues raised by Yamaha in its petition for judicial review did not constitute grounds for reversal by the superior court in this case.

Decided August 19, 1994.

Gerald Cunningham, for appellant.

King & Spalding, Michael E. Ross, Suzanne C. Auclair, for ap-pellee.

“In any judicial proceeding under this Code section, the findings of the board of review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.” OCGA § 34-8-223 (b). The superior court is not authorized to weigh the evidence and substitute its factfindings for those of the administrative trier of fact. Green v. Tanner, 186 Ga. App. 715, 716 (1) (368 SE2d 162) (1988). The administrative determination that there was insufficient probative evidence to support Yamaha’s allegation that McGahee was at fault in his termination was supported by McGahee’s testimony he did not sexually harass or witness others engaged in what he perceived as sexually harassing conduct. Thus, the superior court erred if its reversal was based on findings of fact made by the administrative agency.

Similarly, Yamaha’s argument that the statements of McGahee’s accusers who failed to appear at the hearing should have been considered, lacks merit. “In this state even in the absence of objection, hearsay is without probative value to establish any fact.” (Citations and punctuation omitted.) Williams v. Piggly Wiggly Southern, 209 Ga. App. 490 (433 SE2d 676) (1993). We have held this to be the rule even in administrative hearings. Finch v. Caldwell, 155 Ga. App. 813, 815 (273 SE2d 216) (1980). Despite the absence of an objection by McGahee, the hearsay testimony offered by Yamaha was insufficient to establish whether McGahee witnessed or engaged in prohibited conduct. Williams, supra at 490-491. We do not agree with Yamaha’s argument that the testimony should be allowed because it is “necessary to ascertain facts not reasonably susceptible of proof under [the rules of evidence].” OCGA § 50-13-15 (1). Yamaha’s failure to call apparently readily available witnesses does not render the absent witnesses’ testimony “not reasonably susceptible of proof.” Finch, supra at 815-816.

Judgment reversed.

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


text:
    A94A1397.
    COLEMAN ROAD ASSOCIATES, LTD. et al. v. CULPEPPER.
    (448 SE2d 83)
   Johnson, Judge.

Coleman Road Associates, Ltd., purchased real property from Dorothy Tanner Culpepper. Coleman, through its general partner Carl Callum, executed a promissory note and deed to secure debt in favor of Culpepper, who financed the purchase. Coleman defaulted on the note by failing to make the required monthly payments. Pursuant to the power of sale contained in the deed to secure debt, Culpepper foreclosed on the property, purchasing it herself at the foreclosure sale. Culpepper did not seek judicial confirmation of the foreclosure sale, but instead filed the instant lawsuit against Coleman and Cal-lum, alleging that they are liable for breaching the security deed provisions requiring them to maintain the property in good condition, pay taxes on the property and keep the property insured. Coleman and Callum moved for summary judgment. The trial court denied the motion and we granted the interlocutory appeal application of Coleman and Callum.

1. Coleman and Callum correctly contend that Culpepper’s purchase of the property at the foreclosure sale, for an amount which she concedes satisfied the debt, extinguished the security deed. “A security deed, although conveying the legal title, does so for the purpose of security only, and, upon the satisfaction of the obligation which it is given to secure, is automatically extinguished in effect and can be canceled of record without any reconveyance by the grantee in accordance with the provisions of [OCGÁ § 44-14-67].” (Citation and punctuation omitted; emphasis supplied.) Sapp v. ABC Credit &c. Co., 243 Ga. 151, 154 (2) (253 SE2d 82) (1979). Although the rule emphasized above is set forth in the context of the statute governing the cancellation of a security deed as reconveying title to the grantor of the deed, it is nonetheless instructive under the circumstances of the instant case to the extent that it expresses the principle that a security deed conveys legal title solely for the purpose of securing a debt and is extinguished once that debt is satisfied. “[W]hen the grantor of a security deed grants a power of sale he does so not for his ultimate benefit but, rather, for the benefit of the grantee. The power of sale in a [security deed] simply gives to the [grantee] a remedy for the collection of his debt in a summary way. The power is conferred for the purpose of enabling the [grantee] to collect his debt.” (Citations and punctuation omitted.) Druid Assoc., Ltd. v. Nat. Income Realty Trust, 210 Ga. App. 684, 685-686 (436 SE2d 721) (1993). Here, Culpepper elected to exercise the power of sale in the security deed and collect her debt in this summary way. She concedes that she did not need to seek confirmation of the foreclosure sale because her bid at the sale fully satisfied Coleman’s debt under the note plus all related expenses. Since that debt was completely satisfied, the effect of the security deed was extinguished. Cul-pepper’s current action under the terms of that extinguished deed is therefore void and the trial court erred in denying the motion for summary judgment of Coleman and Callum.

Decided August 19, 1994.

Bach & Hulsey, Robert J. Hulsey, for appellants.

J. Russell Jackson, for appellee.

2. Due to our decision in Division 1, we need not address the issue of whether Culpepper’s lawsuit is an attempt to obtain a deficiency judgment that is barred by her failure to have the foreclosure sale confirmed pursuant to OCGA § 44-14-161.

Judgment reversed.

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


author: Judge Harold R. Banke.

text:
    A94A0973.
    HINES v. THE STATE.
    (448 SE2d 226)
   Judge Harold R. Banke.

The appellant entered a guilty plea to possession of cocaine in violation of the Georgia Controlled Substances Act and obstruction of a police officer, expressly reserving his right to appeal the denial of his motion to suppress pursuant to Mims v. State, 201 Ga. App. 277 (410 SE2d 824) (1991). Consideration of the appellant’s appeal is not foreclosed by Hooten v. State, 212 Ga. App. 770 (442 SE2d 836) (1994) since the conditional plea was not entered within 30 days of the effective date of Hooten. See id. at 775.

The following evidence was adduced at the suppression hearing: While on routine patrol after midnight in south Cobb County, Officer William Stephens observed Daniel Hammontree sitting in his car adjacent to a set of pay telephones outside a grocery store. Hammon-tree’s presence raised Officer Stephens’ suspicions because the store was closed, no one was using the pay phones, and the area was known for drug activity. Officer Stephens drove past the store and planned to turn his vehicle around to watch Hammontree, thinking that a drug transaction was about to occur. However, upon his return, Officer Stephens discovered that Hammontree had gone. Approximately five minutes later, Officer Stephens observed Hammontree driving on a nearby street. He initiated a traffic stop because the vehicle had an inoperative headlight and a plastic bag was positioned in place of its passenger-side window. Officer Stephens asked Hammontree to step to the rear of the car for questioning. After several minutes, the appellant, a passenger in Hammontree’s vehicle, got out of the car and began to walk toward the officer and Hammontree. Officer Stephens asked the appellant to get back into the car because they were on a dimly lit street in an area known for drug activity and he did not want both men “back on [him] at the same time.” Officer Stephens then noticed a rolled clear plastic sandwich bag partially sticking out of the appellant’s pocket which contained a dark leafy-type substance the officer immediately suspected was marijuana based on numerous previous marijuana arrests. Officer Stephens testified that he considered the substance to be contraband in plain view and that he removed the bag from the appellant’s pocket to confirm his belief. As the officer removed the bag, the appellant attempted to flee, but Officer Stephens apprehended the appellant approximately 50 feet away and placed him under arrest. Officer Stephens then obtained Ham-montree’s permission to search the vehicle. No contraband was found inside the vehicle; however, Officer Stephens discovered five small plastic bags, each containing a rock-like substance resembling crack cocaine, adjacent to the passenger door where the appellant previously stood. The appellant admitted that the marijuana belonged to him, but he denied any knowledge of the crack cocaine. Hammontree was neither arrested nor cited for traffic violations.

The appellant contends the trial court erred in denying his motion to suppress evidence regarding the crack cocaine in two respects. First, the appellant contends that since Officer Stephens declined to criminally charge Hammontree on traffic violations, evidence of their presence in an area known for drug activity was insufficient to establish reasonable articulable suspicion to authorize a warrantless arrest. The appellant also contends the search of his pockets exceeded the scope of the traffic stop or any proper frisk for weapons.

“ ‘When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them. (Cits.)’ [Cit.]” Barrett v. State, 212 Ga. App. 745, 746 (443 SE2d 285) (1994). “ ‘ “In determining when an investigatory stop is unreasonably pretextual, the proper inquiry ... is not whether the officer could validly have made the stop but whether under the same circumstances a reasonable officer would have made the stop in the absence of the invalid purpose.” [Cit.]’ ” Caster v. State, 210 Ga. App. 809, 810 (1) (437 SE2d 608) (1993). It is evident that the stop of a vehicle is authorized if an officer observes the commission of a traffic offense. O’Keefe v. State, 189 Ga. App. 519, 522 (1) (376 SE2d 406) (1988). Notwithstanding the evidence which showed that the vehicle was stopped in an area known for drug activity, the evidence demonstrates, without dispute, that Officer Stephens observed Hammontree driving a vehicle with apparent equipment violations. See OCGA §§ 40-8-22 (a); 40-8-73 (a). Therefore, Officer Stephens acted reasonably in stopping the vehicle. It is of no cpnsequence to this inquiry whether Hammontree was ultimately cited for these violations. See Caster, supra; Minor v. State, 180 Ga. App. 869, 870 (1) (350 SE2d 783) (1986). Accordingly, the trial court correctly determined that the reason given for the stop was not pretextual and that the stop was lawful.

Decided August 1, 1994

Reconsideration denied August 22, 1994.

Alice C. Stewart, for appellant.

Moreover, the contraband which was recovered at the scene was in plain view due to appellant’s own actions. He voluntarily got out of the car, thereby exposing the bag of marijuana. See Samuel v. State, 198 Ga. App. 558 (402 SE2d 325) (1991). With regard to both the bag containing marijuana and the crack cocaine, Officer Stephens was “lawfully in position to obtain the view, the discovery [was] inadvertent, and the object viewed [was] immediately seen to be incriminating. [Cits.] Contraband lawfully found in plain view need not be ignored and can be seized. [Cit.]” Id. at 560.

We also reject the notion that Officer Stephens’ questioning of Hammontree outside the vehicle went beyond the purpose for the stop thereby exceeding the scope of a brief Terry stop. See Terry v. Ohio, 392 U. S. 1, 27 (88 SC 1868, 20 LE2d 889) (1968). The appellant contends that by the time he got out of the vehicle the traffic stop should have been completed. Instead, Officer Stephens had begun questioning Hammontree about their activities prior to the stop. However, to the contrary, Officer Stephens testified on redirect examination that at the time the appellant got out of the car, he had not completed the traffic stop and his discussion with Hammontree outside the vehicle up to that time pertained to the purpose for the stop. “ ‘ “[T]he credibility of the witnesses is for the judge’s determination, where the trial judge hears the case without intervention of a jury.” (Cit.)’ [Cits.]” In the Interest of S. R. B., 211 Ga. App. 336 (439 SE2d 105) (1993). Furthermore, brief questioning regarding Ham-montree’s presence in the area, under the circumstances of this case, would have been permissible under Terry. See Bozeman v. State, 196 Ga. App. 743 (1) (397 SE2d 30) (1990).

Based on the foregoing, we conclude that the trial court correctly denied the appellant’s motion to suppress.

Judgment affirmed.

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

Thomas J. Charron, District Attorney, Christina A. Craddock, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.


author: Birdsong, Presiding Judge.

text:
    A94A1463.
    WILLIS v. THE STATE.
    (448 SE2d 223)
   Birdsong, Presiding Judge.

Willie James Willis appeals his conviction for three counts of aggravated assault and violation of OCGA § 16-11-131. The evidence showed that appellant went to the home of Mr. and Mrs. Fletcher Kendricks to look for his wife, Joyce Hudson, who is Mrs. Kendricks’ sister. During an altercation he bit Mr. Kendricks on the arm. Mrs. Kendricks called her stepsister Glenda Bearden, whose husband is a police officer; Mr. and Mrs. Bearden went to the Kendrickses’ home. When the bite wound on Mr. Kendricks’ arm started swelling, his wife and Mrs. Bearden took him to the hospital. After they returned, appellant’s teenaged brother knocked on the Kendrickses’ door and asked for appellant’s wife, Joyce Hudson. The boy was told that Joyce Hudson was not present. Soon after, appellant reappeared at the Kendrickses’ door, knocked and asked for Joyce Hudson. At this time, Mr. Bearden, and appellant engaged in a verbal confrontation. Bearden announced that he was a police officer and more harsh words were exchanged. Bearden asked appellant to leave and appellant cursed at him. Feeling threatened, Bearden reached toward his bag on the sofa next to the door and got his .45 caliber handgun. At that point appellant raised his revolver and fired into the apartment. Bearden pushed the door forward, aimed his gun around the door and fired two shots. Appellant continued to shoot and Bearden emptied his gun at him. Mrs. Kendricks saw appellant’s gun; other witnesses heard it. Mrs. Bearden called 911 and police arrived in two minutes. Appellant, who had been shot three times, was found lying in some grass nearby. Neighbors had seen a teenager helping appellant down a path, and one neighbor saw appellant hand a gun to the teenager; the teenager ran away.

Appellant enumerates nine errors. Held:

1. Appellant contends the evidence was insufficient to support the verdict, as there was no evidence he had a gun or fired a gun, or at whom he fired a gun. Appellant was charged with shooting at, toward, or in the direction of Bearden, Mrs. Kendricks, and Mrs. Bearden. A gun was seen and heard in appellant’s possession. The credibility of witnesses and the weight of the evidence are the province of the jury; we do not weigh evidence but only determine whether there is sufficient evidence to support the jury’s verdict, and we construe the evidence in favor of the jury’s verdict because there is no presumption of innocence once the jury has found the appellant guilty. Alexander v. State, 199 Ga. App. 228 (404 SE2d 616); Feagin v. State, 198 Ga. App. 460 (1) (402 SE2d 80). We have examined the evidence, viewing it in favor of the jury’s verdict, and find it sufficient to convince a rational trier of fact of appellant’s guilt of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. There was no fatal variance between the evidence and the specific averments in the indictment that appellant shot “at, toward, or and in [each victim’s] direction,” and he was not entitled to a directed verdict under OCGA § 17-9-1. There was evidence from which the jury could find that appellant shot at, towards, or in the direction of all three victims.

3. Appellant makes several complaints as to the similar transaction evidence. The State offered two instances of aggravated assault as similar transactions but the trial court admitted only one. This evidence involved a fight between appellant and Curtis Hodges over some potato chips. Hodges and appellant had been drinking and indulging in other activities which they deemed pleasant; Hodges recalled that the fight included a gun but he was vague as to whether it also involved a steak sauce bottle or a liquor bottle. However, a police officer testified that while on patrol he heard two shots and looked through a window to see appellant with a knife in one hand and a gun in the other. The door opened and Hodges collapsed before the officer but there was no evidence he was shot.

(a) The evidence was not so dissimilar as to preclude its admission. Hodges remembered that for no reason appellant fired a gun and hit him in the head with a bottle. This incident tends to show appellant’s temper and his propensity to settle disagreements with a gun, and particularly to act violently and impulsively to disappointment, jealousy or misunderstanding and to resort to the threat or use of firearms with little or no provocation. See Jordan v. State, 192 Ga. App. 69, 70 (383 SE2d 631); see also Harris v. State, 210 Ga. App. 366 (436 SE2d 231); Norton v. State, 199 Ga. App. 27 (403 SE2d 884). When sufficient basis exists to admit the evidence, dissimilarities such as the type of weapon used or the precise igniting act do not destroy the basis for admitting evidence as a similar transaction. See Moore v. State, 207 Ga. App. 897 (1) (429 SE2d 340).

(b) The fact that the evidence might incidentally place appellant’s character in evidence does not destroy its admissibility as a similar transaction; the trial court did not err in determining that the relevance of this evidence outweighed any possible prejudicial effect. Williams v. State, 261 Ga. 640, 641-642 (409 SE2d 649); see Robinson v. State, 192 Ga. App. 32 (383 SE2d 593).

Decided July 28, 1994

Reconsideration denied August 22, 1994

Ronald J. Scholar, for appellant.

Lewis R. Slaton, District Attorney, Vivian D. Hoard, Assistant District Attorney, for appellee.

(c) Appellant contends that after the Williams hearing to determine admissibility of this evidence, the trial court failed to make the findings required by Williams. This issue is waived by appellant’s failure to object at trial. Cantrell v. State, 210 Ga. App. 218, 221 (435 SE2d 737); Hansen v. State, 205 Ga. App. 604, 607 (1) (423 SE2d 273).

(d) The trial court’s instructions to the jury as to the purpose for which the similar transaction evidence was admitted was not so conflicting or confusing as to be error.

4. The trial court did not err in failing to instruct the jury, on request, as to the lesser included offense of reckless conduct. The evidence shows either that appellant committed aggravated assault or he had no gun and did nothing, so the evidence did not support a finding of reckless conduct. Scott v. State, 208 Ga. App. 561 (430 SE2d 879).

5. Appellant contends the trial court impermissibly commented on the evidence by instructing that it is not essential for the State to locate physical evidence of gunfire to establish the crime of aggravated assault. The trial court charged: “[I]t is not essential for . . . the State to locate bullets or bullet holes or expended shells to establish the crime of aggravated assault.” This is not an impermissible comment on the evidence under § 17-8-57. It does not assume or imply that there are no bullet holes, bullets or expended shells. It simply charges a point of law. The proscription against impermissible court commentary is violated only when the court’s charge assumes certain things as facts and intimates to the jury what the judge believes the evidence to be. Turner v. State, 259 Ga. 873 (388 SE2d 857); Bussey v. State, 202 Ga. App. 483 (414 SE2d 710).

Judgment affirmed.

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


text:
    A94A1033.
    BROWN v. THE STATE.
    (448 SE2d 259)
   Judge Harold R. Banke.

The appellant, Lloyd Brown, was convicted of three counts of child molestation. On appeal, he contends that the evidence was insufficient to support his conviction, and that the trial court erred in failing to give a comprehensive charge on circumstantial evidence.

1. The State alleged that between August 29, 1987, and November 1, 1989, the appellant committed three specified acts of child molestation upon his stepdaughter, who was four years old at the time of the first offense. The trial testimony and out-of-court statements of the victim graphically described the acts performed by the appellant, including touching her genital area with his hand and penis and sticking his finger up her anus. The State further adduced corroborating testimony from close relatives of the victim, as well as expert testimony of her pediatrician, an investigator with the Department of Family & Children Services who interviewed her, a clinical psychologist and the director of a clinic for sexually abused children where the victim was evaluated and treated.

Viewed in the light most favorable to the verdict, the evidence authorized a rational trier of fact to find the appellant guilty beyond a reasonable doubt of the offenses as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The appellant contends that the trial court erred in failing to charge the jury on the quantum of proof necessary for conviction by circumstantial evidence, even without a written request for such a charge. In Robinson v. State, 261 Ga. 698, 699-700 (410 SE2d 116) (1991), the Supreme Court held that where the State’s case depends in whole or in part on circumstantial evidence, a charge on the law of circumstantial evidence as set forth in OCGA § 24-4-6 must be given, whether or not the direct evidence presented by witness testimony has been impeached, if such a charge is requested. See also Mims v. State, 264 Ga. 271 (443 SE2d 845) (1994).

In the instant case, the trial court defined circumstantial evidence in its jury instructions, but omitted a charge on the quantum of proof necessary to convict with circumstantial evidence after defense counsel withdrew a request for such an instruction. The appellant now contends that inasmuch as only circumstantial evidence was I presented in regard to the essential element of his “intent to arouse or satisfy the sexual desires of either the child or the person,” the trial court was obligated to charge the jury fully on circumstantial evidence even without a request.

However, the testimony and out-of-court statements of the victim provided some direct evidence of the appellant’s intent to arouse or satisfy his own sexual desires. It follows that it was not error to fail to charge fully on circumstantial evidence, absent a proper request for such. Jenkins v. State, 209 Ga. App. 19 (432 SE2d 270) (1993).

Judgment affirmed. Birdsong, P. J., concurs. Blackburn, J., concurs in the judgment only.

Decided August 22, 1994.

Albert A. Myers III, for appellant.

Cheryl F. Custer, District Attorney, Richard R. Read, Assistant District Attorney, for appellee.


text:
    A94A1618.
    BROWN et al. v. CARLISLE et al.
    (448 SE2d 256)
   Birdsong, Presiding Judge.

Thomas J. Brown, Jr. and Elizabeth D. Brown appeal the grant of directed verdict at the trial of their suit against Leonard Carlisle d/b/a Carlisle Construction, Inc. and Carlisle Construction, for injuries sustained by Brown while defendants were building their house. The evidence, viewed in favor of respondent Brown on defendants’ motion for directed verdict, shows that Brown went to the premises to install wiring, at night after Carlisle’s workmen had left the site. He opened a door that was intended to lead to a back porch, but there was no porch and he fell about ten feet. The house was not fully Sheetrocked; the door he opened did not have a knob. Brown contends he had warned Carlisle many times to put a barrier across such doors because of the obvious danger. He contended that if a bar had been placed across the door he would not have tried to go through the door opening. Held:

A directed verdict is proper when all the evidence introduced and all reasonable inferences therefrom, construed in favor of the non-moving party, demand a particular verdict. OCGA § 9-11-50 (a); Gary v. E. Frank Miller Constr. Co., 208 Ga. App. 73, 75 (430 SE2d 182). The directed verdict in this case was correct. The evidence demands a conclusion that Brown knew there was no back porch. He went to the house site on a daily basis and even made a joke of seeing how many boards had been put up each day. He had spent time admiring the other porches on the house, he had spent this day cleaning up debris around the house and he had examined the progress. He returned to the house site after supper to do electrical work and he erected temporary lights inside using extension cords. It was light inside the house, but when he opened the back porch door, it was dark outside. However, he cannot suggest he thought he saw a porch because it was pitch dark outside and there was no porch. Brown had equal knowledge that no bar had been nailed across the door and of the danger inherent in walking through a door where there is no porch and there is no restraint across the door. He did not check to see if this door was barred on this day because it “wasn’t prevalent in my mind.” In fact, it was obvious that there was no bar across the door, but he was not paying attention to that fact. He was thinking he needed to go onto the back porch to install an electrical apparatus; he walked through the door opening thinking, “porch, porch,” but he knew there was no porch. We assume, in Brown’s favor, that he had repeatedly warned Carlisle to bar such doors, and doubtless this injury would not have occurred if Carlisle had put a bar on the door. However, Carlisle did not have an absolute duty to ensure Brown’s safety from dangers equally apparent to Brown and to protect him from failure to exercise ordinary care for his own safety.

Decided August 22, 1994.

Smith & Wallis, Kenneth A. Smith, Christopher B. Scott, for appellants.

Key & Kirby, L. Jack Kirby, for appellees.

Even where premises are dangerous and a proprietor is negligent, he is not liable for an injury where the plaintiff had equal or superior knowledge of a dangerous condition and fails to exercise ordinary care for his own safety. If he knows of a defect, or in the exercise of reasonable care would have known of it, he must use all his senses in a reasonable measure amounting to ordinary care to discover and avoid those things that might cause him harm. Hall v. Thompson, 193 Ga. App. 574 (388 SE2d 381). Although the issue of a plaintiff’s exercise of due diligence for his own safety is ordinarily a question for the jury, it may be summarily adjudicated where the plaintiff’s knowledge of the risk is clear and palpable. Wells v. C & S Trust Co., 199 Ga. App. 31, 32 (403 SE2d 826). Plaintiff is charged with knowledge of those defects which he had actually observed or which were so transparently obvious that his failure to observe them cannot reasonably be excused. Id., citing Oliver v. Complements, Ltd., 190 Ga. App. 30, 32 (378 SE2d 154). Plaintiff not only knew there was no bar on the back porch door, he also knew there was no back porch. In these circumstances, the evidence and all reasonable deductions therefrom demand a verdict for defendants.

Judgment affirmed.

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


author: Blackburn, Judge. Birdsong, Presiding Judge,

text:
    A94A1711.
    HARDEMAN et al. v. ROBERTS.
    (448 SE2d 254)
   Blackburn, Judge.

Plaintiffs appeal the trial court’s order which granted the defendant’s motion to set aside the judgment. The underlying personal injury action arose out of a motor vehicle collision between the parties on December 15, 1990. On June 30, 1992, plaintiffs filed the present action. The defendant was personally served on July 2, 1992, and the defendant’s insurance carrier, Safeway Insurance Company, was given notice of the action by certified mail, return receipt requested as provided by OCGA § 40-9-103 (c). The defendant failed to file any responsive pleadings. On December 15, 1992, a jury trial was conducted and a verdict was rendered in favor of the plaintiffs in the amount of $75,000.

On May 21, 1993, defendant filed a motion to set aside the judgment pursuant to OCGA § 9-11-60 (d) (3) predicated on a contention that the judgment should be set aside because the defendant did not receive notice of trial. The defendant’s counsel attached an affidavit to the motion to set aside in which he averred that he had represented the defendant in a prior civil action between the same parties that had been voluntarily dismissed by plaintiffs. The trial court granted defendant’s motion to set aside the judgment based upon its factual finding that plaintiffs had failed to comply with Uniform State Court Rule 4.8 requiring notice to the court that the present action was the renewal of a previously filed action.

On appeal, plaintiffs assert that any failure to notify the trial court of the renewal status of their action was not a nonamendable defect appearing on the face of the record as required by OCGA § 9-11-60 (d) (3). We agree and reverse.

OCGA § 9-11-60 (d) (3) provides that a judgment may be set aside based upon “[a] non-amendable defect which appears upon the face of the record or pleadings.” The alleged nonamendable defect must be apparent from the face of the record in the absence of the additional evidence. Capital Assoc. v. Keoho, 173 Ga. App. 627, 628 (327 SE2d 586) (1985). “[A] motion to set aside ‘will not be granted where matters upon which it is predicated must be developed by evidence.’ [Cits.]” Glenn v. Maddux, 149 Ga. App. 158, 159 (253 SE2d 835) (1979). In the present case, no error appeared on the face of the record prior to the defendant’s exhibits attached to his motion to set aside the judgment. Therefore, the trial court erred in granting defendant’s motion to set aside the judgment.

Judgment reversed.

Senior Appellate Judge Harold R. Banke concurs. Birdsong, P. J., concurs specially.

Birdsong, Presiding Judge,

concurring specially.

I concur with the majority that the judgment of the trial court must be reversed; however, I cannot join in the analysis employed by my colleagues in arriving at this disposition.

Uniform Superior Court Rule 4.8 (to notify of related cases) must be read in pari materia with Uniform Superior Court Rule 4.1 (prohibition on ex parte communications). We so read it is readily apparent that notice to judges under Rule 4.8 must be communicated in writing with a copy to opposing counsel so as to avoid the prohibition against ex parte communications. Such notice would become a part of the record in the case; lack of written notice therefore would be apparent from the face of the record.

Decided August 22, 1994.

Manchel, Johnson & Wiggins, Howard J. Manchel, Allan L. Galbraith, for appellants.

Crim & Bassler, Nikolai Makarenko, Jr., for appellee.

However, Rule 4.8 is merely an administrative rule designed to promote judicial economy and to facilitate timely case disposition; it does not on its face create any procedural or substantive due process rights in behalf of an opposing party. In this case, written notice was not given in accordance with Rule 4.8 but the case proceeded to a jury verdict in favor of appellants/plaintiffs; thereafter, judgment was entered to conform to the verdict (see generally OCGA § 9-12-9). Any procedural deficiency arising from lack of notice under Rule 4.8 would not result per se in any form of error prejudicial to the fundamental rights of the parties. Lack of notice under Rule 4.8 could be cured by timely amendment prior to trial and, in the absence of actual prejudice shown, until the verdict itself. A defect which would be amendable before the verdict would be cured by the judgment in the case. Mercer v. Nowell, 179 Ga. 37, 40 (175 SE 12). Moreover, “[a] judgment may not be set aside for any defect in the pleadings or the record that is aided by verdict or amendable as a matter of form.” OCGA § 9-12-15; Auld v. Schmelz, 199 Ga. 633 (1) (34 SE2d 860). The judgment in this case was perforce aided by the verdict to which it conformed.

Additionally, any error caused by failure to give written notice as required by Rule 4.8 was not, under the circumstances here attendant, inconsistent with substantial justice and did not affect adversely the substantial rights of the parties. Accordingly, any such error would be harmless and, pursuant to OCGA § 9-11-61, would provide no grounds for setting aside the verdict or for vacating the judgment. See also OCGA § 9-12-4 (verdicts shall not be avoided unless from necessity).


text:
    A94A1785.
    CARDEN v. BURCKHALTER et al.
    (448 SE2d 251)
   Birdsong, Presiding Judge.

Windel Carden filed this action seeking contribution against alleged joint tortfeasors Georgia Power Company (“Georgia Power”) and its driver Lenwood Burckhalter, for injuries to Ricky Barnes. In January 1990, Carden’s vehicle collided with Burckhalter’s Georgia Power truck and Burckhalter’s truck then collided with Ricky Barnes. In February 1990, Carden’s insurer, Georgia Farm Bureau Insurance Company (“Farm Bureau”), issued checks for $2,303.28 and $399 in property damage to Georgia Power and Al Body & Frame Shop; Carden did not give written consent to the settlement agreement between his insurer Farm Bureau and Georgia Power. Ricky Barnes then sued Carden, Burckhalter and Georgia Power. In November 1992, Carden’s insurer, Farm Bureau, paid Ricky Barnes $25,000 for bodily injury. However, Carden says Farm Bureau never consulted him about this settlement or notified Georgia Power of his lack of consent to it.

In this suit, Carden asserts that Burckhalter’s negligence caused their collision and also caused Burckhalter’s collision with Ricky Barnes. Carden contends Georgia Power and Burckhalter are jointly and severally liable for a contribution of one-half of the $25,000 paid by Farm Bureau to Ricky Barnes. Carden filed a motion in limine to exclude evidence of Farm Bureau’s property settlement to Georgia Power; he conceded that this suit is filed under Farm Bureau’s rights of subrogation in his policy to recover amounts paid on his behalf, because he “has a responsibility to cooperate in collecting the money paid” and “to seek recovery from the joint tortfeasors under the policy contract.” He asserted that by paying the property settlement to Georgia Power, his insurer Farm Bureau acted as an independent contractor (see OCGA § 33-7-12); thus, its property damage settlement with Georgia Power without his written consent does not preclude his claim for contribution from Georgia Power of money paid by Farm Bureau to Ricky Barnes and should not be admitted in evidence in this suit. The trial court denied Carden’s motion in limine.

At trial, Georgia Power and Burckhalter moved to dismiss this suit on grounds of accord and satisfaction, contending that Farm Bureau’s payment of Georgia Power’s property damage amounts to an admission that Carden was at fault. After presentation of evidence, the trial court ruled: “This is not a case for contribution. ... By acknowledging [Georgia Power’s property] claim, [Farm Bureau] acknowledged its liability to [Georgia Power] and to its driver Burckhalter and that the payments made by [Farm Bureau] to [Georgia Power] . . . were a settlement of [an unquestioned] claim on certain terms. . . . Georgia Farm Bureau’s payment to [Georgia Power] acted as an admission of liability and accord and satisfaction of all claims between these parties.”

Carden contends he can assert this claim for contribution because OCGA § 33-7-12 allows an insured to assert claims when the insurer’s settlement of claims was without his consent. Appellees contend the trial court’s finding of an accord and satisfaction is supported by sufficient evidence. Held:

1. (a) Appellees contend the standard for review of a grant of motion to dismiss is whether the ruling is supported by “any evidence,” because in Vaughan v. Vaughan, 253 Ga. 76, 77 (317 SE2d 201) the court held that if the grant “ ‘is authorized for any reason’ ” it must be affirmed. However, the rule that a judgment right for any reason must be affirmed is not the same thing as the “any evidence” rule. It is not realistic to suggest that “any evidence” will uphold a finding that a plaintiff is “ ‘ “entitled to no relief under any state of facts which could be proved in support of his claim.” ’ ” Id. See OCGA § 9-11-14 (a) and (b).

(b) In the same vein, appellees contend this dismissal is really a grant of directed verdict at trial, which must be affirmed because the trial court was “authorized” to find Carden admitted liability and because there is “sufficient evidence” of accord and satisfaction. Appel-lees contend the appellate court “should apply the directed verdict/ motion to dismiss [non-jury trial] standard which this court described in Southern Gen. Ins. Co. v. Holt, 200 Ga. App. 759 (409 SE2d 852): ‘ “ ‘The standard of appellate review of the trial court’s denial [or grant] of a motion for directed verdict is the “any evidence” standard.’ ” [Cit.]’ Foreman v. Eastern Foods, 195 Ga. App. 332, 333 (393 SE2d 695).” (Emphasis supplied). This misquotes both Southern Gen. Ins. Co. and Foreman, supra. It is misleading to use brackets to add substantive legal language which does not appear in the case quoted.

A directed verdict is authorized only when “there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.” OCGA § 9-11-50 (a). A grant of directed verdict is a ruling that the evidence and all reasonable deductions therefrom demand a particular verdict. OCGA § 9-11-50 (a). It is illogical to say such a finding will be upheld if there is “any evidence” to support it. A grant of directed verdict can be upheld only where we determine that all the evidence demands that verdict. This requires a de novo review. It was said in Ga. Dept. of Human Resources v. Montgomery, 248 Ga. 465, 466 (284 SE2d 263) that “[i]n Georgia, the standard used to review the grant or denial of a directed verdict is the ‘any evidence’ test”; however, this was used to explain “substantial evidence” and it was dictum. Also, the case cited for the proposition, Speir v. Wil- Hams, 146 Ga. App. 880 (247 SE2d 549), never made it. A “rule” that the standard for review of the grant of directed verdict is the “any evidence” test is often either quoted in dictum (e.g., where the review is of a denial of directed verdict) or is not used in the sense advocated by appellees. See Norfolk Southern Corp. v. Smith, 262 Ga. 80, 84 (414 SE2d 485); Emory Univ. v. Levitas, 260 Ga. 894, 897 (401 SE2d 691); Southern R. Co. v. Lawson, 256 Ga. 798-799, 800 (1) (a) (353 SE2d 491); Moore v. Allen, 255 Ga. 430 (339 SE2d 243); Skelton v. Skelton, 251 Ga. 631 (308 SE2d 838); Hixson-Hopkins Autoplex v. Custom Coaches, 208 Ga. App. 820 (432 SE2d 224). See also Atkinson v. Allstate Ins. Co., 182 Ga. App. 50 (354 SE2d 866), which involved a denial of directed verdict. It is correct to say that a directed verdict cannot be granted if there is “any evidence” to support a contrary verdict, but there cannot be “some evidence” that all the evidence demands a particular verdict.

2. The trial court heard evidence and concluded “there is no merit in an action for contribution in this case and the same [is] dismissed in its entirety.” The trial court’s ruling that the claim cannot be maintained is correct as a directed verdict, though not for the reasons given.

(a) All the evidence introduced demands a verdict in appellees Georgia Power’s and Burckhalter’s favor on a claim for “contribution” by Carden. Carden has made no payment to Barnes. This is a subrogation claim made for Farm Bureau. Under OCGA § 33-7-12, Farm Bureau cannot preclude Carden from asserting “a claim” or defense against Barnes, Georgia Power, or Burckhalter; but “a claim” refers to a claim of the insured, not to a subrogation right of the insurer. This subrogation claim is not a claim of the insured, but is a claim of the insurer.

(b) Furthermore, Farm Bureau has no right of subrogation because it did not make a payment to Barnes as insurer or agent of the insured under Carden’s policy. Even if that payment operated to discharge (or to assume) Farm Bureau’s duty under the policy, Farm Bureau acted only as an independent contractor, according to § 33-7-12 (a). The policy permits Farm Bureau to settle claims without Carden’s consent, but the effect of such settlement is governed by statute. Under OCGA § 33-7-12 (a), a provision which permits the insurer to compromise claims or defenses of the insured without his consent “shall be deemed to create . . . the relationship of an independent contractor.” (Emphasis supplied.) The designation in OCGA § 33-7-12 of Farm Bureau as “independent contractor” establishes as a matter of law that its payment made without Carden’s written consent was not made as his insurer under the policy of insurance.

Indeed, Farm Bureau is in no position to contend it paid Barnes under Carden’s insurance policy, for the release it took from Barnes states: “In taking this release, [Farm Bureau] is acting as an independent contractor and not as an agent of any party released hereby other than itself.”

Decided August 22, 1994.

Fain, Major & Wiley, Charles A. Wiley, Jr., David W. Williams, for appellant.

Foster & Foster, Larry A. Foster, John A. Kimbell, for appellees.

(c) Further, OCGA § 33-7-12 was enacted to protect the insured {Jefferson Mills v. Gregson, 124 Ga. App. 96 (183 SE2d 529)) and is in derogation of common law and must be strictly construed. Construing the statute strictly, a payment made by an “independent contractor” is not made “under the policy.” Carden concedes that Farm Bureau’s subrogation rights arise only as to payment made “under this policy,” and OCGA § 33-7-12 establishes that the payments to Georgia Power for property damage and to Carden were made by an independent contractor, not “under this policy.”

(d) Finally, although appellant does not cite to us the language of the property damage checks issued to Georgia Power by Farm Bureau (see Court of Appeals Rule 15), an admission of Carden’s liability for damage to Georgia Power’s vehicle is not necessarily an admission of Carden’s liability, or accord and satisfaction, for the third party’s (Barnes’) personal injury. In any case, it could not bind Carden individually, for it was made without his consent. OCGA § 33-7-12.

Judgment affirmed.

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


text:
    A92A2178.
    DICKENS et al. v. CALHOUN FIRST NATIONAL BANK.
    (448 SE2d 237)
   Judge Harold R. Banke.

This case has been before this court several times. See Dickens v. Calhoun First Nat. Bank, 208 Ga. App. 489 (431 SE2d 121) (1993); Dickens v. Calhoun First Nat. Bank, 197 Ga. App. 517 (398 SE2d 814) (1990); and Dickens v. Calhoun First Nat. Bank, 189 Ga. App. 798 (377 SE2d 715) (1989). The operative facts are set forth in those previous opinions and need not be reiterated here.

In the most recent appearance of the case, we held that the plaintiff-appellants were entitled to directed verdict on their claims to set aside a foreclosure sale, and that the appellants were entitled to recover the difference between the fair market value of the property at the time of the sale and the indebtedness, if the fair market value exceeded the indebtedness. Dickens, 208 Ga. App. at 490-491. However, in Calhoun First Nat. Bank v. Dickens, 264 Ga. 285 (443 SE2d 837) (1994), the Supreme Court reversed, holding that the appellants may not both set aside a foreclosure sale and also recover damages and that the appellants are thus limited to seeking damages. Accordingly, our earlier judgment in this case is vacated and the judgment of the Supreme Court is hereby made the judgment of this court.

The Supreme Court then remanded the matter to this court for consideration of issues previously considered moot. Those remaining issues primarily involve the appellants’ proof of damages.

1. At trial, one of the appellants testified that the subject property was worth $420,000 at the time of the foreclosure sale, and an expert witness for the appellants opined that the property’s value was $428,000. Two expert witnesses for the appellee, however, testified that the property was worth $251,700 and $227,400, respectively. The appellants also sought to admit into evidence two appraisals of the property made in 1984 and 1985 by a now-deceased appraiser, which indicated values of $296,807 and $385,220, respectively, but the trial court excluded the appraisals as inadmissible hearsay.

The trial court properly did so. Contrary to the appellants’ contention, the appraisals were not admissible as business records under OCGA § 24-3-14. “Business records are admissible if the evidence shows the ordinary course of business required the entries to be made (a matter that can be waived) and the records are reflective of an act, occurrence or event, and not an opinion, and were properly identified by the person who made them or is conversant with the necessity for their preparation and custody. [Cit.]” (Emphasis in original.) Finch v. Caldwell, 155 Ga. App. 813, 815 (273 SE2d 216) (1980).

The appraisals in question represented the opinion of the appraiser and as such constituted hearsay. We also reject the appellants’ contention that the appraisals were admissible under OCGA § 24-3-2 to explain the conduct or motive of the appellee’s vice-president.

2. The appellants contend that the trial court erred in disallowing the appellants’ neighbor from testifying as to the value of her property. A property owner need not be an expert to state an opinion as to the value of his own property. Iffland v. Lancaster, 176 Ga. App. 449 (336 SE2d 350) (1985). “However, ‘mere ownership of property does not authorize the owner to testify as to its value without giving facts on which he bases his opinion. ... [A] showing that the witness had some knowledge, experience, or familiarity as to the value of the item is the requisite foundation.’ [Cit.]” White v. Miller, 194 Ga. App. 816, 817 (392 SE2d 30) (1990). In the instant case, the appellants failed to establish any basis for the neighbor’s forming an opinion as to the value of her property, and the trial court thus properly excluded the testimony.

Decided August 9, 1994

Reconsideration denied August 23, 1994 —

Lamb & Associates, T. Gordon Lamb, S. Robert Hahn, Jr., for appellants.

Kinney, Kemp, Pickett, Sponcler & Joiner, Henry C. Tharpe, Jr., Mark D. Newberry, for appellee.

3. We have considered and found without merit the appellants’ remaining enumerations of error concerning (1) the trial court’s jury instructions on wrongful foreclosure, and (2) the trial court’s failure to charge the jury on an alleged violation of a disciplinary rule by one of the appellee’s directors who, as an attorney, had assisted the appellants in obtaining a loan on the property.

With regard to the charge on wrongful foreclosure, the trial court properly instructed the jury that in order to recover for such, the appellants had to show an inadequate sale price attributable to the circumstances of the sale. Concerning the actions of the attorney who performed legal services for the appellants and who also served as director and attorney for the appellee, an alleged violation of a disciplinary rule provides no basis for penalizing the appellee. See Stevens v. Thomas, 257 Ga. 645 (1) (361 SE2d 800) (1987).

Judgment affirmed.

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


author: Beasley, Presiding Judge.

text:
    A94A1396.
    KANNADY et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.
    (448 SE2d 374)
   Beasley, Presiding Judge.

Janet Kannady and her husband sued as a result of injuries sustained by her in a vehicular collision in Fulton County. They served two insurance companies, State Farm and Fireman’s Fund, as uninsured motorist carriers. The Kannadys enumerate as error the trial court’s dismissal of their complaint because of their failure to perfect service on the owner or operator of the other vehicle in a timely manner under the applicable two-year statute of limitation. OCGA § 9-3-33.

The complaint, filed on January 10, 1992, alleges that on April 27, 1990, Janet Kannady was operating a motor vehicle when the driver of a truck owned by Atlanta Building Systems, Inc. changed lanes without signaling, thereby striking Kannady’s vehicle; that this caused her to leave the roadway, overturn, and suffer multiple injuries; and that the truck driver then pulled to the side of the road but left without rendering aid or assistance.

In her deposition, Kannady testified that she is unable to identify the truck’s driver. However, in December 1990, she and her attorney attended a court hearing concerning this collision. She testified that at the hearing a man named “Pennell” or “Pannell” was found guilty of failing to render assistance.

When Kannady later obtained representation by her present counsel, she informed him of this. She is a Tennessee resident and could not recall the name of the court or of her prior attorney. From a record check in the Fulton State and Superior Courts, counsel ascertained that one Scott Thomas Pannell had been sentenced under the First Offender Act for failure to stop and return to the scene of the accident several months after the hearing. Counsel obtained the name of the attorney who represented Pannell, and this attorney provided counsel with an address for Pannell which was no longer current.

The Kannadys originally named Atlanta Building Systems as the owner of the truck and “John Doe” as the operator. Within several days after filing the complaint, they attempted to serve Atlanta Building Systems at its last known address, in Cherokee County. The sheriff’s office was unable to perfect service on this defendant because the business was closed. On June 16, 1992, almost two months after the statute of limitation had run, appellants obtained permission to serve Atlanta Building Systems by publication. Service was completed on July 15.

The Kannadys amended their complaint on February 25, 1993, to voluntarily dismiss “John Doe” without prejudice and to substitute “Scott Pannell,” on the ground that they had identified him as the hit and run driver, although his residence or location was unknown despite diligent efforts to locate him. They stated in the amendment that Atlanta Building Systems filed for bankruptcy in August 1990 and that the company which insured its vehicles had been declared insolvent.

On May 25, State Farm moved for summary judgment and requested a dismissal of the complaint with prejudice, on the ground that plaintiffs were guilty of laches in failing to serve Pannell or Atlanta Building Systems, so that any future service would not relate back to toll the statute of limitation.

A month later, the Kannadys filed a second amendment to their complaint to reinsert “John Doe” as a defendant, based on the allegation that Scott Pannell denied striking plaintiff’s vehicle. They filed another lawsuit against “John Doe” as a result of this collision. State Farm moved to dismiss the first action and objected to plaintiffs’ attempt to add “John Doe” without requesting leave of court more than a year after the statute of limitation had run. Fireman’s Fund moved to dismiss the complaint for failure to diligently pursue proper service on Atlanta Building Systems before the statute of limitation ran, and for adding “John Doe” back without leave of court. The Kannadys thereafter moved to add or join “John Doe” as a party.

At the subsequent motions hearing the court orally announced that it was granting the insurance companies’ motions. Before entry of a court order, the Kannadys filed a notice of voluntary dismissal without prejudice and an acknowledgment of service by the bankruptcy trustee of Atlanta Building Systems pursuant to an order of the bankruptcy court lifting a stay in this proceeding. The court thereafter entered its order dismissing the complaint.

1. Citing certain pages of the hearing transcript, appellants first contend that the court erred in ruling at the motions hearing that their complaint is subject to dismissal because the “John Doe” defendant was not served in order to hold the insurance companies. We find no such ruling.

2. Appellants next contend that service by publication on Atlanta Building Systems precluded dismissal of this action.

If service cannot be had on the president or other officer or agent in an action against a corporation, OCGA § 9-11-4 (d) (1) provides that the Secretary of State shall be an agent of such corporation upon whom any process may be served. See also OCGA § 14-2-504 (b). Service by publication under OCGA § 9-11-4 (e) is not proper, but even if it was, the trial court was authorized to find that appellants did not act in a reasonable and diligent manner in obtaining such service almost two months after the running of the statute of limitation. Starr v. Wimbush, 201 Ga. App. 280 (410 SE2d 776) (1991).

3. Appellants contend that the fact that the truck driver pled not guilty to the criminal charge arising from the accident, together with the inability of plaintiff to identify him, presents a question of fact as to whether the driver was unknown.

Pannell’s plea of not guilty is not a denial that he was the driver. Appellants cite no evidence of record that Pannell denied being the driver. Compare Smith v. Doe, 189 Ga. App. 264 (375 SE2d 477) (1988). Although a police report states that the driver was a black male and appellants state that the driver was white, appellants’ statement is not supported by reference to the record. The evidence in those portions of the record to which we have been cited establishes that appellants’ counsel knew before filing this complaint that Scott Pannell was the driver but could not locate him.

4. Thus, there is no merit in appellants’ contention that the court abused its discretion in denying their motion to return “John Doe” to the suit.

An action may be instituted against a “John Doe” defendant only when the owner or operator of the vehicle is unknown. OCGA § 33-7-11 (d). Where known, he or she must be named as a defendant, although service by publication is authorized if after due diligence such defendant cannot be found within the state. OCGA § 33-7-11 (e); see Douglas v. Woon, 205 Ga. App. 355 (422 SE2d 61) (1992).

5. In reliance upon State Farm Mut. Auto. Ins. Co. v. Harris, 207 Ga. App. 8 (427 SE2d 1) (1992), appellants contend that the filing of bankruptcy by Atlanta Building Systems tolled the statute of limitation. Appellees, on the other hand, counter that this ground was not raised below and thus is not preserved for appeal. Pollard v. Martin, 191 Ga. App. 681 (382 SE2d 720) (1989), is cited. They are correct.

Although appellants did state in the first amendment to their complaint that Atlanta Building Systems had filed a bankruptcy petition, it does not appear from either the appellants’ responses to ap-pellees’ motions or the transcript of the motions hearing that appellants argued below that the statute of limitation against Atlanta Building Systems was tolled by reason of a stay in bankruptcy.

“As ‘ “(g)rounds which may be considered on appeal are limited to those which were urged before the trial court,” (cit.),’ [cit.], we will not review this issue. [Cit.]” Pollard, supra, 191 Ga. App. at 682 (1) (where claimants in an interpleader action had filed cross-motions for summary judgment, with the trial court denying appellants’ motion and granting appellee’s, appellants could not contend on appeal that summary judgment was improper because questions of fact remained concerning an issue not raised below); see also Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 766 (4) (431 SE2d 746) (1993) (after summary judgment is granted to a movant/plaintiff, a nonmovant/ defendant may not raise an argument or defense not asserted in the trial court); but compare Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993) (on appeal of a grant of summary judgment, a de novo review of the evidence is required).

6. Appellants contend that appellees’ defenses were waived because the affirmative defense of insufficiency of process or service of process is waived under OCGA § 9-11-12 (h) unless asserted in an answer or other responsive pleading.

It is immaterial that appellees did not raise the OCGA § 9-11-12 (b) (5) defense of insufficiency of process or service of process in their answers, since the motions for summary judgment and to dismiss were brought on the ground that the action is barred by the statute of limitation, and their right to dismissal on this ground was not waived. Bennett v. Nelson, 202 Ga. App. 346 (1) (414 SE2d 291) (1991). Moreover, their defense concerns the timeliness as well as the sufficiency of service upon the owner of the vehicle, not themselves.

7. Appellants next contend that the court erred in granting State Farm’s motion for summary judgment because dismissal was sought on a matter in abatement. The affirmative defense of the statute of limitation asserts a bar to recovery and not merely the abatement of an action and is thus a proper issue for disposition by motion for summary judgment. City of Atlanta v. Chambers, 205 Ga. App. 834, 835 (1) (424 SE2d 19) (1992).

Decided August 23, 1994.

McKenney & Froelich, William J. McKenney, for appellants.

Greer, Klosik & Daugherty, John F. Daugherty, Robert J. Mc-Cune, McCrimmon & McCrimmon, Edward W. McCrimmon, Lisa L. McCrimmon, for appellees.

8. Finally, appellants unsuccessfully maintain that they were entitled to voluntarily dismiss their action without prejudice because an oral announcement of a judgment in open court has no effect as a judgment until it is reduced to writing, signed by the judge, and filed with the clerk. Rothstein v. Brooks, 133 Ga. App. 52 (2) (209 SE2d 674) (1974). Once a judgment in a civil case has been announced, although not formally entered, attempted filing of a voluntary dismissal is not permissible. Mixon v. Trinity Svcs., 176 Ga. App. 679 (337 SE2d 362) (1985).

Judgment affirmed.

Andrews and Johnson, JJ., concur.