text:
    A92A0213.
    FORTSON v. FORTSON.
    (421 SE2d 106)
   Pope, Judge.

This is an action to domesticate a California judgment which modified an order of the California courts regarding the custody of a minor child. At the time of the original order, the child and both parents were residents of California. The defendant/mother in the present action was awarded sole physical custody of the child, and visitation rights were granted to the plaintiff/father. The defendant then began making plans to move to Georgia. The parties agreed to modify the custody order to permit the plaintiff long-distance visitation rights. However, according to the plaintiff, defendant rescinded this agreement after she moved to Georgia. Plaintiff then initiated a suit to modify the- California custody order on the ground that the mother had violated the order by moving from the state with the child.

The plaintiff served the defendant with the modification action by placing the summons and complaint into a shoe box which contained new shoes the plaintiff had purchased for the child. The record shows the child had visited his father and was being returned to the defendant in Georgia by plaintiff’s cousin. The cousin handed the unopened shoe box containing the summons and complaint to the defendant. These were discovered by defendant when she later opened the box. Defendant filed a motion to dismiss and appeared specially to challenge the California court’s exercise of personal jurisdiction over her. The California court subsequently granted plaintiff’s motion to modify the custody order and awarded joint legal custody to the parents and sole physical custody to the plaintiff.

Plaintiff then filed this action in Georgia to domesticate the California order. The defendant filed an answer and amended answer to plaintiff’s petition to domesticate, asserting, inter alia, that service of the California modification action was insufficient. On July 29, 1991, a hearing was held on plaintiff’s petition to domesticate at which time defendant again asserted that service of the modification action was insufficient. On July 31, 1991, the trial court entered an order granting defendant’s motion for directed verdict on the grounds that service was invalid under Georgia law and plaintiff filed an application to appeal that order to this court which we granted on September 18, 1991.

1. Both California and Georgia have adopted the Uniform Child Custody Jurisdiction Act which provides, inter alia, that service of process may be made “(a) By personal delivery outside of this state in the manner prescribed for service of process within this state, (b) In the manner prescribed by the law of the place in which the service is made for service of process in that place in an action in any of its courts of general jurisdiction.” Cal. Civ. Code § 5154 (1) (a & b) (West 1983). See also OCGA § 19-9-45 (a) (1 & 2). The parties agree that the service did not comply with Georgia law, and therefore, is not valid unless it complies with California law.

Relying on the Uniform Child Custody Jurisdiction Act and California’s statutory law governing service of process, plaintiff contends that the trial court erred in granting a directed verdict for defendant because service of the modification action was valid under California law. A party intending to rely upon a foreign law is not required to provide the court with copies of that law; rather, they must only provide notice of their intent to do so in the pleadings or otherwise. “A party who intends to raise an issue concerning the law of another state or of a foreign country shall give notice in his pleadings or other reasonable written notice.” OCGA § 9-11-43 (c). Plaintiff in this case failed to provide any written notice either to the court or to opposing counsel that he intended to rely upon California law. The first mention of the applicability of California law occurred at the hearing on the defendant’s motion for directed verdict. This court has already held that, where the first notice of intent to rely upon foreign law is made at a hearing on motion for directed verdict, the notice is insufficient to provide the court and opposing counsel an opportunity to prepare. Plant v. Trust Co. of Columbus, 164 Ga. App. 387 (297 SE2d 37) (1982). Where a party has failed to provide sufficient notice of intent to rely upon foreign law, the law of this state shall apply. “Absent proper introduction and proof of the law of a sister state, however, it is presumed that such foreign law is the same as that of Georgia.” Abruzzino v. Farmers’ & Merchants’ Bank, 168 Ga. App. 639, 640 (1) (309 SE2d 911) (1983).

Decided July 7, 1992.

Billington & Associates, Barry E. Billington, for appellant.

Janice L. Hughes, for appellee.

2. Applying Georgia law, the service of process used in the California action was legally insufficient to secure personal jurisdiction over the defendant. As is pertinent to this appeal, OCGA § 9-11-4 (c) provided that “[p]rocess shall be served by the sheriff of the county where the action is brought or where the defendant is found, or by his deputy, or by the marshal or sheriff of the court, or by his deputy, or by any citizen of the United States specially appointed by the court for that purpose.” OCGA § 9-11-4 (c). Plaintiff’s cousin has not been shown to be one of the people enumerated in section 9-11-4 who may serve process in Georgia. Therefore, the service was insufficient to secure personal jurisdiction over the defendant.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A92A0310.
    SHIPLEY v. TRAVELERS INSURANCE COMPANY et al.
    (421 SE2d 108)
   Johnson, Judge.

In October 1970, Susean Shipley suffered an on-the-job injury which left her permanently disabled. As a result of this injury, Shipley was awarded workers’ compensation by the State of Hawaii. Her employer, the Ala Moana Hotel in Honolulu, Hawaii, had a policy of workers’ compensation insurance issued by the appellee, Travelers Insurance Company. Travelers provided workers’ compensation benefits to Shipley from the time of her injury until the maximum benefit period expired sometime in 1976, and continues to pay Shipley injury-related medical benefits as provided by the policy and Hawaiian law.

After Shipley’s initial injury she continued to live in Hawaii for a time, then moved to California, and ultimately moved to Georgia. Her spinal injury was such that her condition continued to deteriorate. In 1982, twelve years after the initial injury, the deterioration had progressed to the point that she could no longer walk, and she was relegated permanently to a wheelchair.

Subsequent to her injury on the job, Shipley sustained further injuries which she contends resulted from her personal residence being unsuitable for and inaccessible to a person suffering disabilities such as hers. Consequently, Travelers paid for modifications to her apartment, widening doors and installing a ramp providing ingress and egress for a wheelchair. Despite these modifications designed to make her residence more accessible to her, Shipley contends that she continued to suffer injuries within her living quarters.

After she moved to Georgia, in an effort to prevent further incidental injuries resulting from living in a residence ill-equipped to meet her needs, Shipley discussed with appellee Anne Brunson, a claims adjuster for Travelers in Georgia, her desire to purchase a house which could then be structurally modified so as to be accessible and safe for her. Shipley contends that Travelers agreed, through Brunson, to be responsible for paying for the reasonable costs of any modifications to the house if she purchased one. Specifically, Shipley contends that Brunson told her that Travelers would need a doctor’s prescription specifying the modifications deemed necessary, an evaluation of the specific house she had chosen to determine if it was suitable to be modified, and two estimates of the costs to construct the proposed modifications. Having located a house that she liked and believed could be modified at a reasonable cost, Shipley obtained the prescription and the estimates, and submitted them to Brunson. One of the estimates, in the amount of $21,197 is included in the record. Shipley contends that since Brunson previously told her that having the modifications paid for by Travelers would be “no problem,” she purchased the house on May 25, 1990, relying upon Brunson’s statement. When Shipley inquired as to the status of her claim after the closing on her house, Brunson told her that the estimates she had submitted were incomplete and that Travelers would require more information. Later, Brunson denied ever having committed Travelers to pay for the construction of the modifications. Travelers informed Shipley that it did not believe it was responsible for making the modifications, and declined to pay Shipley’s claim for the costs.

Shipley then submitted a claim for the home modifications to the Director of Labor and Industrial Relations for the State of Hawaii, the officer responsible for assuring compliance with workers’ compensation law in that state. The Director denied her request for the benefits. His letter of July 6, 1990, informing her of the decision expressed regrets, but explained “(a) review of your file indicates that Travelers was already found liable for renovations on a prior home. Therefore I am unable to comply with your request that Travelers be liable for your present modifications,” because Hawaii workers’ compensation law only provides for one structural modification of an injured employee’s residence.

Shipley then filed suit in the State Court of DeKalb County alleging that Travelers and Brunson breached a separate contract, outside of the scope of workers’ compensation, in refusing to pay for structural alterations necessary to make her house accessible to a person with her significant physical disabilities. Shipley contends in this lawsuit that Brunson, individually and as the agent for Travelers, entered into an oral contract with her based upon Brunson’s request that Shipley provide Travelers with a doctor’s prescription, an evaluation of the house, and estimates of the cost of modifying a house, and by giving assurance that paying for the modifications would be “no problem.”

Travelers and Brunson moved for summary judgment, which the trial court granted. Shipley appeals. We affirm.

1. Shipley claims that she and Travelers, through its agent Brunson, formed a separate contract for the modifications which is not controlled by workers’ compensation law. This contention is without merit.

Hawaii workers’ compensation law provides the exclusive remedy to an employee injured “by accident arising out of and in the course of employment.” HRS § 386-3; see also Kang v. Charles Pankow Assoc., 5 Haw. App. 1 (675 P2d 803, 810) (1984). As Shipley’s need for modified living quarters arises from the injury she sustained in 1970, while on her job, her sole and exclusive remedy, as a matter of law, lies within the provisions of the workers’ compensation law as the trial court held.

Where workers’ compensation law is operative, an employee has no independent right of action against his employer. See Hawaii Revised Statutes (HRS) § 386-5; see also Estate of John Coates IV v. Pacific Engineering, 71 Haw. 358 (791 P2d 1257, 1259) (1990). The exclusiveness principle results in barring actions for covered injuries even though the plaintiff cast the action in the form of a breach of contract. See generally Hanagami v. China Airlines, Ltd., 67 Haw. 357 (688 P2d 1139, 1143-1144) (1984). The law of Hawaii does not recognize an independent cause of action in workers’ compensation cases apart from the remedies available under HRS § 386-21 et seq. and HRS § 386-31 et seq. See HRS § 386-5; see also State Farm Mut. Auto, Ins. Co. v. Royston, 72 Haw. 338 (817 P2d 118, 119) (1991).

The law of Georgia adheres to this same principle. See Bright v. Nimmo, 253 Ga. 378, 381 (320 SE2d 365) (1984).

We find that the Hawaii workers’ compensation law is the only source of Shipley’s remedy. Home modifications fall within the category of “medical expense claims” which are properly submitted to a workers’ compensation carrier. Shipley submitted her claim to Hawaii’s Director of Labor. He denied her claim, citing the medical benefits section of the applicable workers’ compensation law which allows but one modification to the living quarters of an injured employee. He noted that Travelers had previously provided modifications to Shipley’s residence, and ruled that Travelers was not responsible for providing further modifications. The decision was apparently not appealed.

Decided July 7, 1992.

Carr & Kessler, Kathleen Kessler, for appellant.

Carter & Ansley, Thomas E. Magill, Elizabeth J. Bondurant, for appellees.

Shipley included letters in the record regarding the requested prescription and estimates which she claims evidence that an oral contract was formed between the parties. However, these letters indicate at most an agreement to contract in the future when and if all terms have been assented to by the parties. “Unless an agreement is reached as to all terms and conditions and nothing is left to future negotiations, a contract to enter into a contract in the future is of no effect. (Cits.) [Cits.]” (Citations and punctuation omitted.) Casper v. Harrison Hatchery, 172 Ga. App. 35, 36 (321 SE2d 785) (1984); see also Malone Constr. Co. v. Westbrook, 127 Ga. App. 709 (194 SE2d 619) (1972). The record indicates that the appellees did not at any time specifically agree to accept the terms and conditions set forth in the prescription and the estimates.

Likewise, Shipley did not reasonably rely on any conduct of the appellees which could create an implied contract. Although Shipley contends that Brunson assured her that there would be “no problem” in covering the cost of the home modification, a “no problem” assurance is insufficient for the creation of an implied contract. See Fidelity & Deposit Co. of Maryland v. West Point Constr. Co., 178 Ga. App. 578, 581 (344 SE2d 268) (1986) (where a bonding company’s assertion that there would be “no problem” bonding a subcontractor, if it were awarded the project, was found insufficient to create an implied surety contract). Even if it could be said that the facts here created an issue as to whether a contract was formed, such a contract would be to provide benefits within the parameters of the existing workers’ compensation framework. Its breach, if any, would necessarily have to be addressed in the Hawaiian workers’ compensation action, not as a separate action.

Therefore, because Shipley’s remedy lies exclusively under Hawaii’s workers’ compensation law, she may not maintain it as an independent contract action in a Georgia court under principles of Georgia contract law. Accordingly, the judgment of the trial court shall not be disturbed.

2. As a result of this court’s decision in Division 1, Shipley’s remaining enumeration of error is moot.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


author: Sognier, Chief Judge.

text:
    A92A0268.
    CHERRY et al. v. WARD.
    (420 SE2d 763)
   Sognier, Chief Judge.

William Ward brought suit against B. H. Cherry, Jr. and Cherry Construction Company (“CCC”) seeking damages for negligent construction, breach of contract, and passive concealment of defects in a home he had purchased. After the trial court granted a directed verdict in favor of Cherry and CCC on the passive concealment claim, the jury returned a verdict in favor of Ward on the remaining claims. The trial court denied Cherry and CCC’s motion for a new trial, and they appeal.

1. Appellant Cherry contends the trial court erred by failing to direct a verdict in favor of him individually because CCC, not Cherry, executed the sales contract and constructed appellee’s house. Cherry is president and sole stockholder of CCC. “A directed verdict is proper only where 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.” (Citations and punctuation omitted.) Heyde v. Xtraman, Inc., 199 Ga. App. 303, 305-306 (2) (404 SE2d 607) (1991).

(a) We find no error in the trial court’s denial of Cherry’s motion for directed verdict as to appellee’s claim of negligent construction. Appellee asserted that the house he purchased had serious water leakage in the basement as a result of the negligent manner in which the house was constructed. Actionable negligence for purposes of a negligent construction claim “is measured by and manifested by a failure to adhere to the established and accepted standards of professional care or conduct in the community, which defect the builder knew or should have known by the exercise of ordinary care. [Cits.]” Williams v. Runion, 173 Ga. App. 54, 57 (325 SE2d 441) (1984). Appellee’s expert witness, Ken Elkins, a professional engineer in the discipline of civil and structural engineering, testified that the builder of the home failed to build the house in accordance with applicable building codes adopted by Fulton County, the situs of the house. Elkins testified, inter alia, that he had determined from a visual inspection that the fill around the house had not been sufficiently compacted; the concrete in the foundation walls had been improperly poured, leading to the formation of cold joints; in turn the failure to reinforce and waterproof the cold joint areas properly had led to water leakage in the basement of the house; the house was not bolted to a foundation wall; and that each of these items constituted a violation of code require-merits. From this evidence, the jury was authorized to conclude that appellee’s home was not constructed in accordance with the code and that this was the proximate cause of the damage to the home. See id. at 58 (1), 59 (4).

Cherry argues that this evidence of negligent construction does not pertain to him because CCC, not he, was the builder of the house. We agree with Cherry that the evidence establishes he did not construct the house in his individual capacity. However, it is well established that “[a]n officer of a corporation who takes part in the commission of a tort by the corporation is personally liable therefor, [and] an officer of a corporation who takes no part in the commission of a tort committed by the corporation is not personally liable unless he specifically directed the particular act to be done or participated or co-operated therein.” (Punctuation and citations omitted.) Smith v. Hawks, 182 Ga. App. 379, 385 (4) (355 SE2d 669) (1987). See generally 3A W. Fletcher Cyclopedia of the Law of Private Corps., § 1137 (rev. perm. ed. 1986). At trial, Cherry acknowledged that he was personally involved in the construction of appellee’s home on a daily basis, personally supervised the construction “from start to finish,” and worked as the “project foreman” for the job. Given this testimony and the expert testimony regarding the extensive and obvious particulars in which the house failed to comport with applicable building code requirements, there is some evidence from which the jury could have found that Cherry, as an officer in CCC, was personally liable for the negligent construction of appellee’s home because he specifically directed the manner in which the house was constructed or participated or cooperated in its negligent construction. See American Game &c. Svc. v. Knighton, 178 Ga. App. 745, 746 (1) (344 SE2d 717) (1986). Accordingly, we are satisfied that the trial court properly denied the motion for directed verdict as to the negligence count. See generally Williams, supra at 58 (1).

(b) We agree with Cherry that the trial court erred by denying his motion for directed verdict as to appellee’s claim of breach of contract. Appellee acknowledged at trial that the sales contract was signed by Cherry in his capacity as president of CCC. Although the evidence was controverted, there was evidence from which the jury could conclude that Cherry, in his individual capacity, signed an addendum to the sales contract, in which were set forth stipulations of additional matters appellee required to be performed on the house. Appellee testified he requested that Cherry sign the addendum individually because he “felt uncomfortable” about the many items remaining to be repaired at the home and required Cherry’s personal assurance that the repairs would be made. From this evidence, the jury was authorized to find that Cherry agreed to oversee personally the performance of the stipulations in the addendum in order to induce appellee to execute the sales contract, therefore binding Cherry to the proper performance of these matters. See OCGA § 13-3-44 (a). However, the evidence at trial established that none of the difficulties upon which appellee based his breach of contract claim, i.e., the failure to take the steps necessary to prevent water seepage in the basement, arose out of Cherry’s individual performance of the special stipulations in the addendum, but instead arose out of breach of a stipulation within the body of the sales contract itself to be performed by CCC. Our review of the stipulations in the addendum reveals that the only provision remotely related to appellee’s problems required Cherry to caulk the cracks in the concrete on the driveway and garage floor. Since appellee’s evidence established that it was the settling of the garage floor and the improper installation of the driveway that created or exacerbated appellee’s problems, rather than any improper caulking of the cracks in the concrete (which were merely symptoms of the underlying problem), there is nothing in the record to establish that Cherry breached the contract on which he was individually liable.

Accordingly, while the evidence reflects that Cherry could have been found liable to appellee for a breach of contract arising out of the matters he promised to perform personally, the evidence is uncontroverted that Cherry was not personally obligated on the contract executed by CCC and appellee, the breach of which was the subject matter of appellee’s suit. Therefore, Cherry was entitled to a directed verdict and the trial court erred by denying his motion. See generally Commonwealth Land Title Ins. Co. v. Miller, 195 Ga. App. 830, 833 (395 SE2d 243) (1990).

(c) The verdict returned by the jury awarded appellee $30,000 against both appellants. Although the form allowed the jury to select which, if either, appellant to hold liable, the form did not allow the jury to distinguish between the negligent construction claim and the breach of contract claim. Appellants objected to the form of the jury verdict on this ground and enumerate as error the trial court’s failure to provide for separate jury consideration of the two causes of action. Because of the form used for the verdict, we are unable to determine whether the jury’s verdict against both appellants was based upon a proper finding that they were liable on the negligent construction claim or whether, due to the trial court’s erroneous denial of Cherry’s motion for directed verdict on the breach of contract claim, the jury incorrectly returned a verdict against both appellants in favor of appellee on the breach of contract claim. “Since the jury found a general verdict for [appellee] against both [appellants], the verdict cannot stand for the reason that this court cannot determine whether the verdict was entered upon a proper basis. [Cits.]” Georgia Power Co. v. Busbin, 242 Ga. 612, 616-617 (8) (250 SE2d 442) (1978). Therefore, the judgment of the trial court must be reversed. Id.

Decided June 23, 1992

Reconsideration denied July 8, 1992

Billy W. Crecelius, Jr., for appellants.

I. Allen Meadors, for appellee.

2. Appellants contend the trial court erred by allowing Elkins to testify whether in his opinion a foundation drain had existed because his opinion was not based upon facts known to him or placed in evidence by other witnesses. Our review of the transcript reveals that Elkins, whose expertise was established by appellee, based his opinion on his personal observation of water marks on the basement wall of the house. Accordingly, should the same basis be introduced for this testimony upon retrial, the trial court would not err by admitting such testimony. See generally Erwin v. Gold Kist, 146 Ga. App. 372, 373 (246 SE2d 404) (1978).

3. It is not necessary to address appellants’ remaining enumeration because, even assuming proper objection was made below, the issues arising out of appellee’s passive concealment and fraud claims will not present themselves upon retrial.

4. Appellee’s motion for imposition of damages for frivolous appeal is denied.

Judgment reversed.

McMurray, P. J., and Cooper, J., concur.


text:
    A92A0369.
    FUDA et al. v. KROEN.
    (420 SE2d 767)
   Sognier, Chief Judge.

Stanley Kroen brought suit against his former employer, Tall Ships Sales, Inc., and the corporation’s president, Rocco Fuda, and vice president, Joseph Fuda, asserting claims for breach of contract, fraud, conspiracy, and unjust enrichment. Tall Ships Sales filed bankruptcy proceedings and was voluntarily dismissed. The individual parties waived trial by jury, and following a bench trial judgment was entered in favor of Kroen against both individuals jointly and severally for $51,155.64 principal, $15,000 interest, and $15,000 attorney fees. The Fudas appeal.

The evidence adduced at trial established that appellee began his employment as national sales director of Tall Ships (hereinafter “the corporation”), a wholesale distributor of frozen fish, in May 1989. He was terminated in October 1989 when he attempted to halt a delivery of inventory to another corporation owned or controlled by appellants that had not paid for previous shipments. It is undisputed that during the approximately six months he was employed by the corporation he lent the corporation money and advanced certain expenses on its behalf. Appellee calculated the amount owed him by the corporation at $51,155.64. By letter dated October 11, 1989, which was admitted into evidence, appellant Joseph Fuda acknowledged a corporate debt to appellee in the amount of $50,455.64. No question exists that neither appellant ever personally guaranteed the corporation’s debt to appellee.

1. Appellants contend the evidence was insufficient to support the trial court’s finding that they are liable to appellee individually because the corporate veil had been pierced.

“The concept of piercing the corporate veil is applied in Georgia to remedy injustices which arise where a party has over extended his privilege in the use of a corporate entity in order to defeat justice, perpet[r]ate fraud or to evade contractual or tort responsibility. Because the cardinal rule of corporate law is that a corporation possesses a legal existence separate and apart from that of its officers and shareholders, the mere operation of corporate business does not render one personally liable for corporate acts. Sole ownership of a corporation by one person or another corporation is not a factor, and neither is the fact that the sole owner uses and controls it to promote his ends. There must be evidence of abuse of the corporate form. Plaintiff must show that the defendant disregarded the separateness of legal entities by commingling on an interchangeable or joint basis or confusing the otherwise separate properties, records or control.” (Citations and punctuation omitted.) Amason v. Whitehead, 186 Ga. App. 320, 321-322 (367 SE2d 107) (1988). Our examination of the trial transcript convinces us that the evidence in the case sub judice failed to meet these requirements, and thus was insufficient to support the trial court’s determination that the corporate veil had been pierced. Accordingly, we reverse.

In support of his allegation that appellants had disregarded the corporate form, appellee testified that the loans and advances he made to the corporation were induced by representations and personal assurances made by appellant Joseph Fuda that the corporation’s indebtedness to appellee would be secured by its accounts receivable and inventory; that the inventory was sufficient to cover the debt; and that appellee would receive priority over all other creditors in the disbursement of accounts receivable. Appellee testified that despite these assurances, monies derived from the corporation’s accounts receivable were subsequently applied to other corporate expenses rather than to repayment of the debt to appellee. However, even assuming, without deciding, that Joseph Fuda’s promise constituted a legally binding obligation, appellee proffered no evidence that even suggests that the expenses paid with corporate funds were not legitimate corporate expenses. Moreover, at trial appellee admitted his belief that Joseph Fuda did not make these assurances with fraudulent intent. Appellee testified that during the applicable time period both he and appellants had believed that sales of the corporation’s inventory would cover the debt to appellee, but that belief ultimately proved inaccurate and overly optimistic, as the receipts from sales were inadequate to cover the corporation’s expenses. Thus, the evidence here, as in Hickman v. Hyzer, 261 Ga. 38 (401 SE2d 738) (1991), may have showed “a classic example of a failed business, [but was] not a case of wrongdoing, fraud and bad faith on the part of . . . corporate [officers].” Id. at 41.

Further, although appellee testified he had knowledge that corporate funds had been used to pay appellants’ personal expenses such as travel, dry cleaning, telephone, and even housing, he adduced no evidence showing that these were not legitimate business expenses or authorized by the corporation as part of appellants’ compensation packages. Compare Abbott Foods &c. v. Elberton Poultry Co., 173 Ga. App. 672-674 (2) (327 SE2d 751) (1985) (corporate veil pierced where president and principal shareholder paid himself substantial unauthorized salary advances during period when corporate checking account was substantially overdrawn and used corporate funds to make unauthorized loan and insurance payments on personal car). The evidence failed to show commingling or disregard of the corporate form sufficient to pierce the corporate veil. See Marett v. Professional Ins. Careers, 201 Ga. App. 178, 180-181 (1) (b) (410 SE2d 373) (1991). Rather, appellee’s own testimony reflected scrupulously accurate maintenance of separate corporate records and accounts and included no showing that any personal and corporate accounts were commingled or confused. See Hester Enterprises v. Narvais, 198 Ga. App. 580, 581-582 (1) (402 SE2d 333) (1991); compare Sheppard v. Tribble Heating &c., 163 Ga. App. 732-733 (1) (294 SE2d 572) (1982) (corporate veil pierced where, in addition to other evidence including under-capitalization and use of corporate funds to pay personal expenses, sole shareholder and director deposited corporate checks into his personal account) with Hickman, supra.

Evidence that appellants had utilized corporate funds, including those lent by appellee to the corporation employing him, for the benefit of other corporations owned or controlled by appellants “might constitute ‘factors to consider in disregarding the corporate fiction as between the two separate corporate entities . . . and treating them as one, but (would) not (be) sufficient to establish that there is such unity of interest as between the corporations and [appellants] to treat them as one.’ [Cit.]” Trans-State v. Barber, 170 Ga. App. 372, 374 (317 SE2d 242) (1984). Accordingly, as no evidence was adduced that appellants abused the corporate form by disregarding the separateness of the corporation through commingling or confusing its assets, records, or control with their own, see Amason, supra at 322, we hold that the trial court erred by finding that the corporate veil had been pierced, resulting in the individual liability of appellants.

Decided June 23, 1992

Reconsideration denied July 8, 1992.

Hirsch Friedman & Associates, Hirsch Friedman, for appellants.

Kaufman, Chaiken & Sorensen, Robert J. Kaufman, Fredric Chaiken, for appellee.

2. Our decision in Division 1 renders it unnecessary that we address appellants’ remaining enumerations of error.

Judgment reversed.

McMurray, P. J., and Cooper, J., concur.


text:
    A92A0411.
    WATT v. THE STATE.
    (420 SE2d 769)
   Sognier, Chief Judge.

Jeffrey Ray Watt entered a plea of guilty to charges of theft by taking and possession of a firearm by a convicted felon. He appeals, contending the record does not show that his plea was entered knowingly and voluntarily and that he received ineffective assistance of counsel in connection with the plea proceedings.

1. Appellant challenges the entry of judgment and sentence on his plea of guilty on the grounds, inter alia, that no factual basis for the plea was established and he was not sufficiently informed of the constitutional rights he was waiving by pleading guilty. We agree and reverse.

The transcript of the plea hearing reveals that although the prosecutor confirmed that appellant understood he was surrendering his right to a jury trial and the presumption of innocence and was aware of the possible sentences for the charged crimes, see USCR 33.8 (B) (1, 2), (C), he was not informed of the other rights he was waiving as required by USCR 33.8 (B) (3)-(7). While the Supreme Court has recognized that the trial court is not necessarily required to address each issue listed in USCR 33.8, McClendon v. State, 256 Ga. 480, 481 (2) (350 SE2d 235) (1986), the record as a whole must show that the defendant understood the rights he was waiving and that the plea was entered voluntarily. Id.; see Scurry v. State, 194 Ga. App. 165-166 (390 SE2d 255) (1990). Here, unlike the circumstances in McClendon and Scurry, the record does not affirmatively reflect that appellant’s counsel adequately advised appellant concerning the nature of the rights he was waiving and the effect thereof. Since the record is silent on this matter and appellant has challenged the effectiveness of his counsel, we cannot presume, as we did in Scurry, supra at 166, that appellant received adequate advice and counsel from his attorney.

Decided June 23, 1992

Reconsideration denied July 8, 1992

Jeffrey Ray Watt, pro se.

Robert E. Keller, District Attorney, for appellee.

Moreover, the record does not affirmatively show that the court ascertained the factual basis for appellant’s plea as required by USCR 33.9. There is no discussion in the transcript of the factual basis for the charges and no presentation or summary by the prosecutor of the evidence the State would have presented at a trial. Compare Golden v. State, 190 Ga. App. 477 (379 SE2d 230) (1989) (although trial court made no determination of the factual basis of the charges, plea of guilty held valid because State presented summary of evidence and defendant had given statement to police). Nor does the record reveal the value of the property taken, which is a prerequisite to entry of a felony sentence on a plea of guilty to theft by taking. Wilson v. Reed, 246 Ga. 743, 745-746 (2) (272 SE2d 699) (1980); see Breland v. Smith, 247 Ga. 690, 691-692 (2) (279 SE2d 204) (1981). Since the record fails to show that appellant was cognizant of all the rights he was waiving or that the trial court ascertained the factual basis for the plea, we hold the record does not affirmatively show that appellant’s guilty plea was entered knowingly and voluntarily.

2. Having found the enumerations addressed in Division 1 dispositive of this appeal, we need not consider appellant’s remaining enumerations concerning the voluntariness of his plea or the ineffectiveness of his counsel.

Judgment reversed.

McMurray, P. J., and Cooper, J., concur.


author: Andrews, Judge.

text:
    A92A0443.
    BALDWIN COUNTY HOSPITAL AUTHORITY v. MARTINEZ.
    (420 SE2d 760)
   Andrews, Judge.

Baldwin County Hospital, pursuant to the grant of its application for interlocutory appeal, contends that denial of its motion for summary judgment was error.

Dr. Martinez, who had been on the staff of the hospital at that same location for 27 years, was injured when he tripped in the staff parking lot on October 1, 1988. He sued, alleging that he tripped over “cement covered with asphalt . . . which was the same dark color as the surrounding surface to the parking lot.” There were two access doors from the staff parking lot into the hospital. One, which was generally used by Dr. Martinez, opened into the medical records department and he regularly stopped there to review charts. The other went by the office of the administrator. Dr. Martinez could not recall when he had used that door, although he was aware of its existence and availability to him. When he was injured, Dr. Martinez had exited through the administrator’s door and stepped off the concrete stoop to the side, between two upright posts, instead of stepping directly to the front and off the stoop. As he was exiting, he was speaking to Ms. Stuckey, a nurse who was entering the building as he was leaving. Dr. Martinez stated that the “asphalt made the cement underneath covered up with a dark color.” With this dark color, Dr. Martinez stated that he could not have discovered it through the exercise of ordinary care. “You couldn’t see it and besides I don’t know if certain times of the day it would be harder to see than others. That’s another thing, too. I don’t know. But the thing is you couldn’t — with that dark color, both, it’s no way unless you were looking just exactly there.”

The hospital moved for summary judgment, contending there was no dispute of material fact, that the defect was patent and obvious if, as alleged by the hospital, it was white against the black asphalt, or, in the alternative, was not known to the hospital and, therefore, the hospital breached no duty to Dr. Martinez if it was covered by asphalt like the rest of the lot, as alleged by Dr. Martinez.

As conceded below and here by the hospital, there is a dispute of fact as to the nature of the material over which Dr. Martinez tripped. Dr. Martinez alleged and deposed that there were “two balls” of cement covered with asphalt that made the cement the same dark color and blended in. The remaining witnesses, however, stated that the irregularity in the lot was some white cement that was clearly visible on the black asphalt. Ms. Stuckey, the nurse to whom Dr. Martinez had spoken immediately before falling, stated this and that she had tripped over the white concrete bumps several times previously. On October 3, 1988, one of the hospital engineers, Mr. Allen removed two “clearly visible spots of white concrete” from the staff parking lot at the direction of a hospital representative.

“In order ‘(t)o prevail on a motion for summary judgment (OCGA § 9-11-56), a defendant-movant is required to pierce the allegations of the complaint and establish as a matter of law that the plaintiff could not recover under any theory fairly drawn from the pleadings and the evidence. [Cits.]’ Holiday Inns v. Newton, 157 Ga. App. 436 (278 SE2d 85) (1981); [Cit.].” Willis v. Allen, 188 Ga. App. 390, 391 (373 SE2d 79) (1988).

Here, the hospital contends that, whichever version of the bumps in the parking lot is considered, as a matter of law, it is entitled to recover.

The existence of a dispute of fact under such circumstances will not necessarily preclude summary judgment. Chelena v. Ga. Fed. Savings &c. Assn., 256 Ga. 336, 337 (349 SE2d 180) (1986). Here, the nature of the lump is not a material fact because under either factual scenario, the hospital was entitled to summary judgment. Atlanta Gas Light Co. v. Gresham, 260 Ga. 391, 392 (4) (394 SE2d 345) (1990); Chelena, supra.

“ ‘Falling and injuring one’s self proves nothing. Such happenings are commonplace wherever humans go.’ Alterman Foods v. Ligon, 246 Ga. 620, 625 (272 SE2d 327) (1980). In order for a plaintiff to recover, two elements must be proven: ‘(1) fault on the part of the owner, and (2) ignorance of the danger on the part of the invitee. [Cits.] The basis of the proprietor’s liability is his superior knowledge, and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn [the invitee] and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of (this) knowledge, assumes the risks and dangers incident to the known condition.’ [Cit.]” Gyles Inc. v. Turner, 184 Ga. App. 376, 377 (361 SE2d 538) (1987).

A “static” defect is one which is “patent and long standing but static. . . . We characterize a ‘static’ defect as one which in and of itself is not dangerous. Certainly where there is common knowledge of a break in pavement, the defect standing alone is not dangerous or likely to cause injury until such time as one drives into it or falls into it.” (Citations omitted.) Hadaway v. Cooner Enterprises, 172 Ga. App. 113, 114 (321 SE2d 830) (1984).

Dr. Martinez was aware that the roof of the hospital had had work done in previous years and that concrete was used in that work, including around the entry doors to the building. Also, the parking lot for staff had been expanded and repaved in 1973, during Dr. Martinez’ tenure. The paved parking lot indisputedly had irregularities and “trifling defects” visible to all.

“[P]laintiff was well aware of the condition of the [parking lot] and his knowledge was, or at least should have been, equal to that of defendants. (‘ “An invitee is under an equal duty with the owner to use (his) sight to discover any defect or dangers. (Cits.))” [Cit.]’ Roberts v. Gardens Svcs., 182 Ga. App. 573, 574 [(356 SE2d 669) (1987)].” Harmon v. Reames, 188 Ga. App. 812, 814 (374 SE2d 539) (1988).

Here, Dr. Martinez also contends that he was distracted by speaking to the nurse. If, however, the lump was white on black, the distraction theory will not preclude summary judgment for the hospital. There is no showing in the record that any such distraction was created by the hospital, a requirement for use of the principle. Hospital Auth. &c. v. Bostic, 198 Ga. App. 500, 501 (402 SE2d 103) (1991); Froman v. Smith, 197 Ga. App. 338, 339 (398 SE2d 413) (1990) (both dealing with expansion joints); see Gray v. Alterman Real Estate, 196 Ga. App. 239, 241 (396 SE2d 42) (1990).

Decided June 22, 1992

Reconsideration denied July 8, 1992

Jones, Cork & Miller, Timothy Harden III, W. Kerry Howell, for appellant.

Shane M. Geeter, for appellee.

If, on the other hand, the lump was black and blended into the surrounding asphalt, the record contains no evidence that the hospital had the requisite superior knowledge of the existence of these lumps to place on it the duty to warn upon which liability is premised. Emory Univ. v. Duncan, 182 Ga. App. 326, 328 (2) (355 SE2d 446) (1987) (physical precedent). Compare Haire v. City of Macon, 200 Ga. App. 744 (409 SE2d 670) (1991).

Therefore, summary judgment should have been entered in favor of the hospital.

Judgment reversed.

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


author: Carley, Presiding Judge.

text:
    A92A0696.
    CLOS et al. v. PUGIA.
    (420 SE2d 774)
   Carley, Presiding Judge.

As the result of a vehicular collision, appellee-plaintiff and her husband at the time, Mr. Edward Pugia, brought suit against appellant-defendants. After a divorce, however, Mr. Pugia settled with appellants. Subsequently, appellee moved to disqualify appellants’ counsel and appellants moved to quash the deposition of appellee’s physician. The trial court granted appellee’s motion to disqualify and denied appellants’ motion to quash. The trial court’s order denying appellants’ motion for reconsideration was certified for immediate review and appellants’ application for an interlocutory appeal was granted. See Aetna Cas. & Surety Co. v. Cantrell, 197 Ga. App. 672 (1) (399 SE2d 237) (1990).

1. Appellee and Mr. Pugia were originally represented by the same counsel. After the divorce, however, Mr. Pugia was given notice of counsel’s intention to withdraw as his counsel and a motion to that effect was filed in the trial court. Pending the trial court’s ruling on the motion to withdraw, Mr. Pugia initiated contact with one of appellants and appellants’ counsel was informed of Mr. Pugia’s communication. Appellants’ counsel then contacted Mr. Pugia. Mr. Pugia stated that his counsel had sent him a withdrawal notice and that he was representing himself. Mr. Pugia also indicated to appellants’ counsel that appellee’s alleged injuries pre-existed the collision.

Although appellee had never been contacted, she moved to disqualify appellants’ counsel based upon the ex parte contact with Mr. Pugia. Appellants urge that the trial court erred in granting appellee’s motion to disqualify their counsel.

At the time of the ex parte communication between appellants’ counsel and Mr. Pugia, Mr. Pugia was still represented by counsel of record. Only subsequent to the ex parte communication did the trial court enter an order allowing counsel who originally represented both appellee and Mr. Pugia to withdraw as counsel of record for the latter. Accordingly, the ex parte communication was violative of applicable standards of professional conduct. Standard 47 of Rule 4-102 of the State Bar of Georgia. It follows that it would be no abuse of discretion to find that appellants’ counsel had not “properly complied with the Bar’s ethical directory and disciplinary rules.” Gene Thompson Lumber Co. v. Davis Parmer Lumber Co., 189 Ga. App. 573, 575 (1) (377 SE2d 15) (1988). Although the trial court did find that there was no wilfulness on the part of appellants’ counsel, the ex parte communication was, nevertheless, a “ ‘specifically identifiable impropriety’ ” which was at least technically violative of the applicable standards of professional conduct. Kleiner v. First Nat. Bank of Atlanta, 751 F2d 1193, 1210 [23] (11th Cir. 1985). It is necessary “to distinguish between disbarment and the less serious sanction of disqualification from a particular case. The standards are more relaxed for the latter.” Kleiner v. First Nat. Bank of Atlanta, supra at 1210 [23], fn. 34.

However, “[t]he rules of disqualification of an attorney will not be mechanically applied; rather, we should look to the facts peculiar to each case in balancing the need to ensure ethical conduct on the part of lawyers appearing before the court and other social interests, which include the litigant’s right to freely chosen counsel. [Cit.]” Stoddard v. Bd. of Tax Assessors, 173 Ga. App. 467, 468 (1) (326 SE2d 827) (1985). “[T]he right to counsel is an important interest which requires that any curtailment of the client’s right to counsel of choice be approached with great caution.” Blumenfeld v. Borenstein, 247 Ga. 406, 408 (1) (276 SE2d 607) (1981). A review of the record demonstrates that the trial court was aware of its obligation to “weigh the degree to which [counsel’s] retention would have eroded pubic trust in the judiciary against [appellants’] interest in retaining counsel of choice.” Kleiner v. First Nat. Bank of Atlanta, supra at 1210 [23]. We find no abuse of discretion in the trial court’s ultimate determination that, although counsel had not acted wilfully, the appearance of impropriety nevertheless outweighed appellants’ interest in being represented by their counsel of choice. See Rivers v. Goodson, 184 Ga. App. 70 (1) (360 SE2d 740) (1987). Compare Stoddard v. Bd. of Tax Assessors, supra at 468 (1).

Decided June 25, 1992

Reconsideration denied July 8, 1992

Eason, Kennedy & Associates, Richard B. Eason, Jr., Carolyn J. Kennedy, for appellants.

Bernard L. Hoppenfeld, for appellee.

“The ultimate determination of whether an attorney should be disqualified from representing a client in a judicial proceeding rests in the sound discretion of the trial judge. [Cits.] Our review of the record reveals no abuse of discretion in [granting appellee’s motion] to disqualify [appellants’ counsel].” Gene Thompson Lumber Co., supra at 574-575 (1).

2. There was no error in denying the motion to quash the deposition of appellee’s physician, over appellants’ contention that notice of the taking thereof was never received. “It is undisputed that service was made in compliance with the provisions of [OCGA § 9-11-5 (b)]. Where service is properly made, actual notice is not required. [Cit.]” Allen v. Bd. of Tax Assessors, 247 Ga. 568, 569 (277 SE2d 660) (1981).

Judgment affirmed.

Pope and Johnson, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A92A1013.
    ROUSE v. THE STATE.
    (420 SE2d 779)
   McMurray, Presiding Judge.

Defendant was convicted on four counts of child molestation relating to the same victim. After the denial of his motion for new trial, defendant appealed to the Supreme Court of the State of Georgia, challenging the constitutionality of OCGA § 24-2-3 and contending the trial court erred in excluding evidence that the victim’s stepfather molested her. The Supreme Court transferred the appeal to this Court. Held:

1. Defendant contends the trial court erred in excluding evidence that the victim’s stepfather molested her, arguing that such proof is relevant to rebut evidence inferring that he infected the victim with gonorrhea.

Dr. James Bradshaw testified that he examined the nine-year-old victim pursuant to an investigation of alleged child abuse and that his examination revealed that the victim had been sexually penetrated and was infected with gonorrhea. Dr. Bradshaw testified that gonorrhea is primarily transmitted via penile penetration; that an infected male will almost always transmit the disease to an uninfected female and that his physical examination of defendant after the alleged acts of child molestation revealed that defendant had gonorrhea. In rebuttal, defendant offered testimony from two witnesses indicating that the victim’s stepfather had sexually molested the victim; that the victim’s stepfather persuaded the victim’s mother to foist the blame of the sexual assaults on defendant and that the stepfather threatened the victim not to inform her mother of the sexual abuse. Defendant offered this testimony “for the sole purpose of showing that [the victim] possibly could have contracted venereal disease from sexual contact with a third party and ... to [rebut] the State’s assertion that the victim contracted venereal disease from the defendant alone.” The trial court excluded the proffered evidence, refusing to allow testimony. regarding other sexual activity of the victim.

In Brown v. State, 173 Ga. App. 640 (1) (327 SE2d 515), it was held that the trial court did not err in refusing cross-examination of a 12-year-old victim as to other sexual activity to support a defense that the victim’s vaginal infection was caused by someone other than the defendant. This Court reasoned that “OCGA § 24-2-3 (b) permits introduction of evidence of other sexual activity of the complaining witness only if such behavior involved the defendant or if such evidence supports an inference that the defendant reasonably believed the complaining witness would have consented to his actions. Brown v. State, 170 Ga. App. 305 (317 SE2d 307) (1984).” Brown v. State, 173 Ga. App. 640 (1), supra.

In the case sub judice, defendant does not assert the exceptions set out in OCGA § 24-2-3 (b) as a basis for introduction of evidence of the victim’s past sexual behavior. He seeks admission of such evidence to support a defense that the victim’s venereal disease may have been caused by the victim’s stepfather. However, defendant failed to offer proof that the victim’s stepfather was also infected with gonorrhea. Consequently, any evidence of the victim’s sexual activity with her stepfather would have shed no light on the origin of the victim’s sexually transmitted disease. Under these circumstances, the trial court did not err in refusing to allow the offered testimony regarding other sexual assaults upon the victim. Brown v. State, 173 Ga. App. 640 (1), supra. See Hurst v. State, 198 Ga. App. 380, 381 (2) (401 SE2d 348), and Stancil v. State, 196 Ga. App. 530 (1) (396 SE2d 299). Compare Hall v. State, 196 Ga. App. 523, 524 (2) (396 SE2d 271), where this court held that a defendant may introduce evidence of prior molestations of the child for the limited purpose of showing other possible causes of behavior by the victim consistent with the child sexual abuse accommodation syndrome. Also compare Burris v. State, 204 Ga. App. 806 (420 SE2d 582) (1992) where this Court allowed evidence on the victim’s accusation of child molestation against another based on a showing that the victim was strongly motivated to fabricate her accusation of child molestation against that defendant; that the victim had falsely accused another of child molestation and that the victim did not initially accuse that defendant of molesting her.

Decided June 26, 1992

Reconsideration denied July 8, 1992

Waymon S. Harrell, for appellant.

Edward D. Lukemire, District Attorney, P. Dee Brophy, Assistant District Attorney, for appellee.

2. Defendant contends the trial court should have allowed the above proffered evidence under the res gestae exception to the hearsay rule. This contention is without merit. “ ‘(T)he Rape Shield Statute, OCGA § 24-2-3, supersedes all evidentiary exceptions, including the res gestae rule. Johnson v. State, 146 Ga. App. 277, 280 (246 SE2d 363) (1978).’ Veal v. State, 191 Ga. App. 445, 447 (4) (382 SE2d 131).” Phillips v. State, 196 Ga. App. 267, 268 (3) (396 SE2d 57).

3. In his final enumeration, defendant challenges the constitutionality of OCGA § 24-2-3 based on the due process clauses of the state and federal constitutions, arguing that “application of the Rape Shield Statute served to deny [him] a fair trial, by giving the State the ability to infer that [he] had given a venereal disease to the victim, while denying [him] the vital opportunity to rebut this assertion with material evidence.” This contention is without merit.

“The constitutionality of the Rape Shield Statute has been established. Harris v. State, 257 Ga. 666 (2) (362 SE2d 211) (1987). It is applicable in child molestation cases to preclude evidence of the victim’s reputation for nonchastity which ‘ “might reflect on the character of the witness without contributing materially to the issue of the guilt or innocence of the accused.” (Cits.)’ Martin[ v. State, 196 Ga. App. 145, 147 (3) (395 SE2d 391)].” Snyder v. State, 201 Ga. App. 66, 67 (5) (410 SE2d 173). In the case sub judice, evidence that the victim was molested by her stepfather would not have diminished evidence that defendant molested the victim. This enumeration is without merit.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A0458.
    BURRITT v. MEDIA MARKETING SERVICES, INC.
    (420 SE2d 792)
   Carley, Presiding Judge.

Appellant-plaintiff was employed as a commissioned salesperson by appellee-defendant. When her employment was terminated, appellant filed a multi-count complaint against appellee. After discovery, cross-motions for summary judgment were filed. The trial court granted summary judgment in favor of appellee, and appellant appeals.

1. There appears to be some dispute as to whether, at the time she was discharged, appellant’s employment was pursuant to a written or an oral agreement. It is, however, undisputed that appellant’s employment was not for any definite period. Accordingly, the trial court did not err in granting summary judgment in favor of appellee as to appellant’s wrongful termination claim. “ ‘It is well settled that in this state “(a)n indefinite hiring may be terminated at will by either party, with or without cause, and there is no cause of action against an employer for an alleged wrongful-termination. (Cits.)” [Cit.]’ [Cits.]” Hickman Datsun, Inc. v. Foster, 181 Ga. App. 229, 230 (1) (351 SE2d 678) (1986).

2. Construing the evidence most favorably for appellant, however, she was entitled to seven days’ written notice of the termination of her employment and appellee failed to provide her that notice. An employer may terminate the employment of an at-will employee for any or no reason, but if an employer further agrees that notice of that termination is to be given, the employer’s failure to give the requisite notice upon the election to terminate the employment constitutes an actionable breach of contract. Belcher v. Thomson Newspapers, 190 Ga. App. 466 (379 SE2d 204) (1989). Accordingly, the trial court erred in granting summary judgment in favor of appellee as to appellant’s claim for breach of the seven days’ notice provision.

3. Appellant also sought unpaid commissions which she had allegedly earned during her employment. In moving for summary judgment, appellee relied upon the following provision of the written contract: “In the event of termination of this contract by either party, [appellant] will be paid commission on all sales where funds are received within 10 days of termination.” (Emphasis supplied.) According to appellee, appellant has no viable claim for unpaid commissions on sales made during her employment, because it received no funds from those sales within ten days of the termination of her employment.

The above-quoted provision whereby appellant forfeited her commission on sales for which payment had not been received by appellee within ten days of her discharge appears in the same written contract containing the provision regarding appellee’s obligation to give seven days’ termination notice to appellant. As noted in Division 2, a genuine issue of material fact remains as to appellee’s breach of that seven days’ notice provision. Accordingly, the trial court erred in granting appellee’s motion for summary judgment as to appellant’s claim for unpaid commissions on sales made during her employment, notwithstanding that funds from those sales may not have been received by appellee within ten days of the termination of appellant’s employment. By its own breach of the seven days’ notice provision of the contract, appellee would have lost the right to rely upon the contractual provision limiting appellant’s commissions to only those sales for which funds were received within ten days of the termination of her employment.

Construing the evidence most favorably for appellant, “[t]his case involves a situation where, as to the commissions sought, [appellee] procured . . . orders . . . due to [appellant’s] efforts, and on which [appellant] had completed everything required of [her] in order to procure the sale. . . . Consequently, the right to the commissions absolutely vested in [appellant] at that time, subject only to two contingencies — that the order might be cancelled [by the customer to whom appellant had made the sale], in which event under the terms of the contract [appellant] would lose [her] right thus acquired to the commissions, or that the contract of employment might be canceled according to its terms [ten days] before . . . payment [by the customer] took place. This contract was not canceled according to its terms, although it was undoubtedly canceled. . . . An attempt to discharge an employee in a manner not contemplated thereby is certainly a fundamental breach of the contract. Whether [appellant] was in fact harmed by failure to give the . . . short notice required is not here involved, the question being whether [appellee] can insist upon a forfeiture clause in the contract when it has not complied with the terms of the contract under which such forfeiture clause may be invoked. Forfeitures are not favored, and are subject to a very strict construction. [Cits.] In consequence, it must be held that, under a strict construction of the contract, the failure of [appellee] to cancel the same in accordance with its terms was in itself such a breach of the contract as would prevent [appellee] from insisting upon the forfeiture provision. . . . The withholding of commissions already earned would amount to a forfeiture of such commissions which [appellee] has no right to insist upon unless, by strict compliance with the contract on its part, some right arising therefrom entitles it to do so. There was no such compliance in this case, and no such right.” Hubert v. Luden’s, Inc., 92 Ga. App. 427, 431-433 (5) (88 SE2d 481) (1955).

This holding is not inconsistent with McKissick v. Roth Communications of Savannah, 203 Ga. App. 747 (417 SE2d 696) (1992). In McKissick, there was no issue concerning the employer’s breach of a termination notice provision. Accordingly, the employer was entitled to enforce a contractual provision limiting the discharged employee to a recovery of commissions on such sales orders as were otherwise billable to customers during the tenure of employment and were thereafter collected within 90 days of the employee’s discharge. “[I]f a contract of employment on a commission basis provided for discharge without notice, and also provided that, in the event of discharge, the salesman should not be entitled to compensation for orders not completed and full deliveries made, the terms of such contract would be upheld.” Hubert v. Luden’s, Inc., supra at 431 (5). In the instant case, an issue concerning appellee’s breach of the seven days’ notice provision does remain. Accordingly, an issue would likewise remain as to appellee’s entitlement to enforce the contractual provision whereby appellant would forfeit her commissions on sales orders which were otherwise made during the tenure of her employment but which were not thereafter collected within ten days of her discharge. Hubert v. Luden’s, Inc., supra at 431-433 (5).

4. Because a genuine issue of material fact remains as to appellee’s breach of the seven days’ notice provision, the trial court also erred in granting appellee’s motion for summary judgment on appellant’s alternative quantum meruit claim. “[W]here an employer breaches a contract of employment, the employee may sue on quantum meruit to recover the value of the services so performed; or he may maintain an action to recover damages for the loss sustained by the breach. Of course he may maintain both such actions for a single recovery by setting out his differing legal theories of recovery under separate counts of the same petition. [Cit.]” Hubert v. Luden’s, Inc., supra at 432 (5).

5. Appellant has no viable claim for fraud baséd upon either the termination of her employment or any alleged oral misrepresentations concerning the terms thereof. A. L. Williams & Assoc. v. Faircloth, 259 Ga. 767, 769 (3) (386 SE2d 151) (1989); Alston v. Brown Transport Corp., 182 Ga. App. 632 (1) (356 SE2d 517) (1987). Accordingly, the trial court correctly granted summary judgment in favor of appellee as to appellant’s fraud claim.

6. That the termination of appellant’s employment resulted in the termination of appellant’s relationship with appellee’s clients gives rise to no viable claim for tortious interference. “Tortious interference with contractual relations is applicable only when the interference is done by one who is a stranger to the contract. [Cits.]” Jet Air, Inc. v. Nat. Union Fire Ins. Co., 189 Ga. App. 399, 403 (4) (375 SE2d 873) (1988). Appellant had no independent contractual relations with appellee’s clients and appellee was certainly no “stranger” to its contracts with its own clients. If appellant is to recover, it is on the basis that appellee breached its contract of employment with her, not on the basis that appellee tortiously interfered with appellant’s contractual relation with appellee’s clients.

Decided July 8, 1992.

Robert M. Goldberg, for appellant.

Freeman & Hawkins, Kenan G. Loomis, for appellee.

7. Appellant’s remaining enumerations of error have been considered and found to be without merit or moot.

8. As to appellant’s claims for wrongful termination, fraud and tortious interference, no genuine issue of material fact remains and the trial court correctly granted summary judgment in favor of appellee. As to appellant’s claims for breach of the seven days’ notice provision, unpaid commissions and quantum meruit, genuine issues of material fact remain. Accordingly, as to those claims, the trial court erred in granting summary judgment in favor of appellee and correctly denied summary judgment in favor of appellant.

Judgment affirmed in part and reversed in part.

Pope and Johnson, JJ., concur.


author: Pope, Judge.

text:
    A92A0636.
    BOWMAN v. GRIFFITH.
    (420 SE2d 795)
   Pope, Judge.

Appellee John W. Griffith was arrested and charged with one count of illegal possession of a controlled substance and one count of illegal possession of marijuana, both counts arising out of the same incident. Defendant pleaded guilty to both counts and was sentenced. Thereafter he received notice from the Department of Public Safety that his driver’s license was suspended for three years pursuant to OCGA § 40-5-75 (a) (2) which mandates a three-year suspension “[u]pon the second conviction of any such offense within five years, as measured from the dates of previous arrests for which convictions were obtained to the date of the current arrest for which a conviction is obtained. . . .” Appellee requested a hearing and a hearing officer for the Department of Public Safety upheld the suspension. Appellee then appealed the decision of the hearing officer to the superior court, arguing the conviction based on his guilty plea to the two-count indictment could not be treated as two separate convictions for purposes of the license suspension statute. The trial court agreed and concluded that the appropriate punishment is the 180-day suspension mandated by OCGA § 40-5-75 (a) (1) upon the first conviction for such an offense and ordered the punishment reduced accordingly. The Commissioner of the Department of Public Safety appeals.

Appellant commissioner argues the superior court erred in treating the convictions on the two-count indictment as a single conviction for purposes of computing the appropriate suspension period under OCGA § 40-5-75 (a). Appellant argues this suspension statute for conviction of possession of a controlled substance or marijuana is comparable to the suspension statute for habitual violation of the traffic code, OCGA § 40-5-58. This court has previously held that for purposes of the habitual violator statute, the requisite number of convictions need not arise out of separate and unrelated incidents. See Hardison v. Hall, 162 Ga. App. 342 (291 SE2d 416) (1982). We expressly stated, however, that “this construction of the statute effectuates the avowed purpose of the statute, which is not to define and punish ‘recidivists’ but to protect the citizens of this State from ‘dangerous, negligent, and incompetent drivers.’ ” (Quoting the predecessor statute to OCGA § 40-5-57 (a).) Id. at 344.

By contrast, however, the purpose of the statute at issue in this case, mandating the suspension of the license of a driver convicted of possession of a controlled substance or marijuana, is not to protect the public from an habitually negligent driver but to add to the punishment imposed upon one so convicted. Cf. Priest v. State, 261 Ga. 651 (2) (409 SE2d 657) (1991) (in which the Georgia Supreme Court concluded that because the possession of a controlled substance or marijuana is not a traffic violation, then those provisions of Chapter 5 of Title 40 which apply to traffic violation charges do not apply to license suspension pursuant to OCGA § 40-5-75; and thus, even though a guilty plea to a traffic violation is included in the definition of conviction provided in the chapter, a guilty plea to a charge of possession of a controlled substance or marijuana which is given first offender treatment does not constitute a conviction mandating suspension). Because OCGA § 40-5-75 is a recidivist statute and not an habitual traffic offense violator statute it should be construed together with the general recidivist statute, OCGA § 17-10-7, such that multiple counts of a single indictment are deemed as a single conviction. Compare Cofer v. Hopper, 233 Ga. 155 (4) (210 SE2d 678) (1974) (in which the now-repealed statute addressing motor vehicle theft and imposing recidivist punishment upon repeat offenders was thusly construed).

Moreover, the language of the statute mandating a three-year suspension refers to “previous arrests [and] convictions” within five years of the “current arrest.” OCGA § 40-5-75 (a) (2). Thus, the statute contemplates separate arrests and convictions before the three-year suspension may be imposed. In this case, it is undisputed that appellee has had no prior conviction of possession of a controlled substance or marijuana and therefore the three-year suspension for recidivists is inapplicable in this case. The trial court did not err by reducing the suspension of the appellee’s license to 180 days.

Decided July 8, 1992.

Michael J. Bowers, Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Melissa. J. Lunsford, Staff Attorney, for appellant.

J. Steven Astin, for appellee.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


author: Carley, Presiding Judge. Pope, Judge,

text:
    A92A0153.
    ASPLUNDH TREE EXPERT COMPANY et al. v. GIBSON.
    (420 SE2d 797)
   Carley, Presiding Judge.

Appellee-employee was injured in an on-the-job accident and appellant-employer and insurer provided him with temporary total disability workers’ compensation benefits. Subsequently, a hearing was held to determine whether there had been a change for the better in appellee’s condition. Although there was evidence that appellee had been working and earning money, the Administrative Law Judge (ALJ) found that the evidence was otherwise insufficient for a determination of the weekly wages that appellee was capable of earning and concluded that appellee was, therefore, entitled to continue to receive temporary total disability benefits.

Appellants appealed to the Full Board. On May 1, 1991, the Full Board made its original award, finding that appellee was earning income and was, therefore, entitled to receive only temporary partial disability benefits. Citing Hood v. Jackson, 81 Ga. App. 465 (59 SE2d 45) (1950), the Full Board further concluded that the burden was on appellee to establish the amount of his compensation and ordered that appellee cooperate with appellants in providing the information from which the amount of his temporary partial disability benefits could be calculated.

On May 7, 1991, appellee filed a motion for reconsideration. On May 15, 1991, the Full Board vacated its original award on the ground that it contained “apparent errors and omissions.” The “apparent error and omission” was the Full Board’s failure to have considered Hardeman v. Liberty Mut. Ins. Co., 124 Ga. App. 710 (185 SE2d 789) (1971), wherein it was held to be error to order a change from temporary total to temporary partial disability benefits in the absence of evidence of the weekly wages that the employee was capable of earning. The Full Board entered a new award which was, in effect, consistent with the ALJ’s award of continued temporary total disability benefits to appellee. Appellants appealed the Full Board’s new award to the superior court. The superior court affirmed and appellants’ application for a discretionary appeal to this court was granted.

1. The threshold issue is whether the Full Board had authority to reconsider, amend or revise its original award.

OCGA § 34-9-103 (b) authorizes the Full Board to revise an award “to correct apparent errors and omissions.” This statute consistently has been construed as broadly authorizing the Full Board to act so as to correct any of its purported errors, whether factual or legal, so long as that purported error appears on the face of the existing record. According to Cotton States Ins. Co. v. Bates, 140 Ga. App. 428, 429 (231 SE2d 445) (1976), OCGA § 34-9-103 (b) “gives the [Full] [BJoard authority to amend its awards to correct obvious errors. It is clear that the intent of this [statute is] to allow the [Full] [B]oard to correct mistakes in an award which [appear] in the record of the case. . . . The intent of [OCGA § 34-9-103 (b) is] not to open the case for a de novo hearing in regard to whether compensation is payable.” (Emphasis supplied.)

Thus, OCGA § 34-9-103 (b), as construed in Bates, does not authorize the Full Board to ignore the res judicata effect of its prior award, so as to readdress and redetermine the issue of compensability based upon a new hearing and consideration of new evidence. Accordingly, in Bates, supra at 428, the Full Board erred when, after vacating its original award, “[t]he matter [of compensability] was then set for a hearing and subsequent thereto the [Full] [B]oard” issued another award. If, however, an award was issued on the basis of an error which appears on the face of the existing record itself, the Full Board is authorized to reconsider that prior award and issue an amended or revised award. Accordingly, unlike Bates, the Full Board does not err when, after vacating its original award, the matter of compensability is not then set for another hearing, but subsequent there to the Full Board merely issues an amended or revised award which purports to comply, legally and factually, with the previously considered record. See Scott v. Tremco, Inc., 199 Ga. App. 606, 607 (1) (405 SE2d 347) (1991). In other words, OCGA § 34-9-103 (b) is not analogous to the statutory grant of authority to entertain a motion for new trial, but only authorizes the Full Board to entertain a motion for reconsideration of its prior award on the existing record. This construction of OCGA § 34-9-103 (b) is clearly correct and Bates obviously should remain viable authority for that construction.

In the instant case, it is clear that the Full Board did base the vacation of its original award and the issuance of its revised award upon a purported error appearing on the face of the record. The Full Board found that its original award should be vacated because the record demonstrated, on its face, that that award had been issued based upon an erroneous reliance upon Hood v. Jackson, supra, rather than upon Hardeman v. Liberty Mut. Ins. Co., supra. Based upon this finding of a purported error of law appearing on the face of the record, the Full Board clearly had the authority to vacate its original award and to issue a revised award pursuant to OCGA § 34-9-103 (b). Scott v. Tremco, Inc., supra. Compare Cotton States Ins. Co. v. Bates, supra.

2. However, the Full Board’s revised award is erroneous on the merits. It is not Hardeman, but Newton v. Liberty Mut. Ins. Co., 148 Ga. App. 224 (251 SE2d 138) (1978) that is controlling as to the sufficiency of the evidence to authorize a finding that appellee’s condition had changed from total to partial disability. As in Newton, but unlike in Hardeman, the evidence in the instant case shows that appellee had resumed working and was receiving income. “In these circumstances we cannot say that there has been no [‘change in condition’] as contemplated by [OCGA § 34-9-104 (a)]; and we hold that the failure of proof as to the dollar amount of the income from claimant’s [employment] is not fatal to the finding of [a] change in condition. . . .” Newton v. Liberty Mut. Ins. Co., supra at 225.

3. However, Newton is certainly not controlling as to the amount of compensation to be awarded to appellee based upon the change in his condition from total to partial disability. Unlike in Newton, supra at 225, appellants have not “consented to assuming a zero figure for [appellee’s] present wages” and, therefore, no award of a specific amount of compensation can yet be made. However, this does not mandate that appellants must continue to pay appellee compensation for total disability. As the Full Board originally held, under these circumstances, appellee should be ordered to provide the necessary information so that the amount of compensation for his partial disability can be determined. Hopper v. Continental Ins. Co., 121 Ga. App. 850, 851 (2) (176 SE2d 109) (1970). Accordingly, the superior court’s order is reversed with direction that the case be remanded to the Full Board for vacation of the erroneous revised award and reentry of the original award.

Judgment reversed and case remanded with direction.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Beasley, Cooper, Andrews and Johnson, JJ., concur. Pope, J., concurs specially..

Pope, Judge,

concurring specially.

The threshold issue, as I see it, is whether the board has authority to reconsider, amend or revise an award on the ground that it contains an apparent error of law. OCGA § 34-9-103 (b) authorizes the board to revise an award, within the time period for appeal to the superior court, “to correct apparent errors and omissions.” In Cotton States Ins. Co. v. Bates, 140 Ga. App. 428 (231 SE2d 445) (1976), this court interpreted the intent of the statute as “[allowing] the board to correct mistakes in an award which [appear] in the record of the case.” (Emphasis supplied.) Id. at 429. We offered as an example of a mistake which could be corrected by revision pursuant to the statute a clerical mistake in reciting the claimant’s average weekly wage.

Decided July 9, 1992.

Drew, Eckl & Farnham, John A. Ferguson, Jr., Nicole D. Tifverman, for appellants.

E. Neal Little, Jr., for appellee.

The wording of the statute, however, does not restrict the board to the correction only of factual errors. In fact, in a more recent case, this court approved the board’s reconsideration and reversal of an award which contained an error which was apparent from the record and which also was an obvious error of law. Scott v. Tremco, Inc., 199 Ga. App. 606 (1) (405 SE2d 347) (1991). In Scott, the board reversed its earlier award dismissing the statutory employer where the record showed the claimant had not been afforded a hearing on the motion for dismissal, in obvious violation of his right to due process, and also the award contained the erroneous conclusion that the claimant was barred as a matter of law from pursuing a claim against the statutory employer. In fact, the record showed that the claimant had preserved his right to recover from the statutory employer by bringing a timely claim against the immediate employer.

In the case now before us, the “apparent error” on which the board based its vacation of its first award is not an error of fact or other error appearing “in the record,” as set forth in Bates. Instead, the “apparent error” cited by the board is one of law. I agree with the majority opinion that the board had authority to revise the award in this case because I find no reason why, pursuant to the authority of OCGA § 34-9-103 (b), the board is precluded from correcting an apparent error of law or fact. To the extent that our previous holding in Cotton States Ins. Co. v. Bates, supra, is contrary to the ruling in this case, I believe it should be overruled.


author: Birdsong, Presiding Judge.

text:
    A92A0168.
    BRYANT v. THE STATE.
    (420 SE2d 801)
   Birdsong, Presiding Judge.

Ralph Bryant appeals his conviction and sentence for statutory rape and child molestation. Bryant contends he was denied effective assistance of trial defense counsel. He also contends the trial court erred by allowing the State to introduce evidence of his conviction of an independent offense because the conviction was 20 years old, the independent offense was not similar to the offense charged, and the State introduced only the certified record of the conviction. Bryant further contends the evidence is insufficient to support a conviction for child molestation, the offense of child molestation merged into the offense of statutory rape, the State impermissibly placed his character in issue, and the State misinformed the jury by stating that he had a prior conviction for statutory rape. Held:

1. We have considered Bryant’s allegation that the evidence is insufficient to support his conviction for statutory rape (see OCGA § 16-6-3 (a)) and find his contention is without merit. (Although the enumeration asserts the evidence was insufficient as to child molestation, it is clear the error asserted was the failure of the evidence to corroborate the victim’s testimony that Bryant was guilty of statutory rape.) “Corroborating identification evidence is not necessary in statutory rape prosecutions. The quantum of corroboration needed in a rape case is not that which is in itself sufficient to convict the accused, but only that amount of independent evidence which tends to prove that the incident occurred as alleged. Slight circumstances may be sufficient corroboration, and ultimately the question of corroboration is one for the jury.” (Citation and punctuation omitted.) Byars v. State, 198 Ga. App. 793 (403 SE2d 82). Considering the evidence presented, we are satisfied the evidence was sufficient to corroborate the victim’s testimony.

Further, we have reviewed the evidence in the light most favorable to the jury’s verdict, and we conclude that a rational trier of fact could have found Bryant guilty of the crimes of which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Crawford v. State, 245 Ga. 89, 90 (263 SE2d 131).

2. Bryant asserts that as the crimes for which he was convicted arose from the same act, the trial court erred by not merging the two convictions for sentencing purposes. See Andrews v. State, 200 Ga. App. 47-48 (406 SE2d 801). Contrary to Bryant’s allegation, however, the crimes for which he was convicted arose from two separate acts as a matter of fact. OCGA § 16-1-6 (1). Here, as Bryant was indicted for statutory rape and for molesting the victim by fondling her breasts, no elements of each offense are necessarily elements of the other. See Horne v. State, 192 Ga. App. 528, 533 (385 SE2d 704). Accordingly, there was no error for sentencing him for both offenses for which he was convicted.

3. In separate enumerations of error, Bryant contends the trial court erred by admitting evidence of an earlier conviction for child molestation; by allowing the State to place Bryant’s character in issue impermissibly, and by allowing the State to mislead the jury by stating that Bryant had a prior conviction for statutory rape when he had not. We have examined the transcript and find that in each instance Bryant’s trial defense counsel either failed to object to the error he now asserts or failed to make a timely objection on the grounds his appellate counsel now asserts. While in most cases this would constitute waiver of these issues (see, e.g., Ely v. State, 192 Ga. App. 203, 205 (384 SE2d 268)), in this appeal Bryant alleges that his trial defense counsel was ineffective within the meaning of Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674), because of the failure to object to the admission of this evidence.

The thrust of Bryant’s allegations against his trial defense counsel is that she did not object to the introduction of inadmissible and prejudicial evidence as asserted in these separate enumerations of error. As these errors are interrelated with Bryant’s allegation against his trial defense counsel, we will discuss these errors in the context of the ineffectiveness of counsel claim.

The record shows Bryant properly preserved this claim for appeal by filing an amended motion for new trial asserting the ineffectiveness of trial defense counsel and by requesting an evidentiary hearing on the issue. See Dawson v. State, 258 Ga. 380 (369 SE2d 897); Washington v. State, 193 Ga. App. 823 (389 SE2d 407). At this hearing, by reference to the record Bryant’s appellate counsel identified instances in which he alleged his trial defense counsel was ineffective. The State, however, did not present evidence at the hearing explaining the trial defense counsel’s actions, and, instead, replied to Bryant’s arguments with post-hearing legal argument and an affidavit from an assistant prosecutor concerning only whether proper notice was given under Uniform Superior Court Rule 31.3.

Bryant first contends his counsel was ineffective because she did not object to similar transaction evidence concerning a 1970 conviction for child molestation without evidence other than the certified copy of the indictment and plea and because she did not object when the prosecutor told the jury that “State’s exhibit Number 6 is a certified and exemplified copy of a previous indictment, sentence, and plea, that charges the defendant, Ralph Bryant, with the offense of statutory rape and child molestation. This occurred in 1970. The defendant was sentenced on this, and we would offer this as . . . evidence of a similar transaction. We would also offer it for the limited purpose of showing identity, course of conduct on the part of the defendant in this case, as well as motive.”

Disregarding whether the trial defense counsel was also ineffective because her only objection to this evidence was that it was “almost 20 years old” (see, however, Gilstrap v. State, 261 Ga. 798, 799 (410 SE2d 423); Williams v. State, 261 Ga. 640, 641 (409 SE2d 649); Stephens v. State, 261 Ga. 467, 468-469 (405 SE2d 483)), the failure to object to the prosecutor’s misrepresentation to the jury that'Bryant was sentenced for both statutory rape and child molestation when he only pled guilty to and was sentenced for child molestation was unquestionably deficient. Further, the failure to object to the State proving the similar transaction with only the certified record of conviction was also deficient. See Stephens v. State, supra.

Bryant also contends his counsel was deficient because she failed to object to a series of improper inflammatory questions. The transcript shows the prosecutor asked Bryant the following questions on cross-examination: “You also, I believe, mentioned that you had been down to the sex crimes office. [The transcript shows that Bryant mentioned on direct examination that after his arrest for the offenses here at issue he was taken to the “rape office” at the police station.] You»’re familiar with the sex crimes office, aren’t you?” . . . “You don’t remember back in 1977 when you were [at the sex crimes unit]. “My question is: Back in 1977 weren’t you in the sex crimes office?” . . . “And also in 1986 you were over there?” . . . “Okay. What about earlier in 1958 and 1960? Weren’t you over there?” . . . “would it be fair to say that you’ve been over to the sex crimes office more than one time?” . . . “And you’ve been charged with this same type offense before and you knew better?” . . . “You’re a child molester too? A. No. Q. Yes, you are.” . . . “What about 1977?” . . . “You’re a child molester. A. No, I’m an old fool. Q. When are you going to admit that you are a child molester?” . . . “You had sex with two girls under 13.”

The only objection during Bryant’s entire cross-examination followed this exchange: “Q. Again, I’ll ask you about 1977? A. I don’t know what you’re talking about. You bring up the incident and I’ll see — I was in Judge Alverson’s court in ‘77. I know he don’t remember me, but check the record. (Whereupon, the witness reviewed a document.) A. Oh, yeah. They threw that out. Q. Do you see what that says right there? A. Oh, yeah. That was supposed to have been changed there. Wait a minute on that. Let’s get it straight now. This is wrong here. No, that’s wrong there. I wasn’t convicted of that. No, no, no. They changed that. They made a mistake there. I was convicted but not of that. Your’all’s records are wrong there. Like I said, I’m just an old fool. Q. 1977, I ask you again — [Defense counsel]: Your Honor, I’m going to object. The question has been asked and answered already, and Mr. Wright is badgering the witness.” The objection was denied, however, because the trial court ruled that the prosecutor was entitled to ask the question three times and he had not done so yet.

We find Bryant’s trial defense counsel’s failure to object to the questions about Bryant’s alleged prior visits to the sex crimes unit and having sex with two girls under the age of 13, was deficient. These questions were not legitimate impeachment, were not relevant to any issue in the case, and improperly placed Bryant’s character in issue. Although evidence that is relevant and material to an issue in a case is admissible, even if it incidentally puts the defendant’s character in issue, introduction by the state of evidence whose sole relevance to the crime charged is that it tends to show that the defendant has bad character is forbidden. Robinson v. State, 192 Ga. App. 32, 33 (383 SE2d 593).

Although the State contends that these questions were authorized because Bryant testified on direct examination that he would not fondle a young lady (see Butts v. State, 193 Ga. App. 824, 825 (389 SE2d 395)), we find no rational connection between these questions and any contradiction of Bryant’s testimony. Nothing in these questions concerned fondling a young lady or tended to establish through admissible evidence that Bryant fondled one, and nothing in Bryant’s testimony on direct or cross-examination opened the door for questions concerning sex with 13-year-old girls. Therefore, defense counsel’s failure to object to the question about sex with a 13-year-old was deficient as the State had not complied with Uniform Superior Court Rule 31.3. Further, whether Bryant visited the sex crimes unit in 1958, 1960, 1977, or 1986 was not relevant or material to any issue in this case. Indeed, the State has not argued that a visit to the sex crimes unit proves anything. Under these circumstances, these questions could only have been asked to suggest impermissibly to the jury that Bryant was guilty of the offense charged because of his bad character as shown by his visits to the sex crimes unit. Further, the State’s argument on appeal that “any implications which may have been raised by the State’s questions were clearly harmless in light of [Bryant’s] acquittal of three of the five counts in the indictment,” underscores Bryant’s argument that the State’s conduct was prejudicial because the jury convicted him only of the same type of charges that the State led them to believe he had been convicted of earlier.

The State’s argument that giving the jury an exhibit showing the charge of statutory rape against Bryant was “nolle prossed” may have been beneficial to Bryant because it showed that not all indicted charges result in convictions, lacks even surface persuasiveness. Indeed, the argument assumes that a typical juror would know what nolle prossed means, and assumes that it would be beneficial for the jury to be aware that Bryant was earlier charged with statutory rape. Such an argument, in effect, concedes there was no valid basis for putting this information before the jury.

Additionally, as these questions were not legitimate impeachment, the defense counsel’s failure to object to the State’s effort to show that Bryant committed similar transactions in 1958, 1960, 1977, and 1986 without first complying with Uniform Superior Court Rule 31.3 was also deficient. See Williams v. State, supra.

To prevail on his claim of ineffectiveness of counsel, Bryant must establish not only that his trial defense counsel’s performance was deficient but that this deficient performance prejudiced his defense. Brown v. State, 257 Ga. 277, 278 (357 SE2d 590). Ultimately Bryant must show there was a reasonable probability the result of his trial would have been different, but for his defense. counsel’s unprofessional deficiencies (Baggett v. State, 257 Ga. 735 (363 SE2d 257)), and he must overcome the strong presumption that the representation was effective. Clarington v. State, 178 Ga. App. 663, 667 (344 SE2d 485). Further, we must measure the trial defense counsel’s performance under the circumstances existing at trial and not with the benefit of hindsight. Smith v. Francis, 253 Ga. 782, 783 (325 SE2d 362).

Considered in this manner, we find that the performance of defense counsel was deficient. We are unable to perceive any legitimate trial strategy which counsel could have been pursuing as to these matters. Although judgmental and tactical errors do not always equate ineffective assistance of counsel (Clarington, supra), the deficiencies in this appeal are more than that. This is not merely an instance in which another trial defense counsel might have pursued a different strategy or tactic. Compare Cauley v. State, 203 Ga. App. 299, 301 (416 SE2d 575); Heard v. State, 177 Ga. App. 802, 804 (341 SE2d 459). Additionally, counsel’s failure to object not only allowed this prejudicial information to come before the jury, but ordinarily would prevent consideration of these issues on appeal.

Therefore, considering the totality of the trial (Clarington, supra), we are satisfied as a matter of law that Bryant has met his burden under Strickland v. Washington, supra, of showing that his counsel’s performance was deficient and that this deficient performance prejudiced his defense. In this regard, “evidence of an independent offense or act committed by the accused is highly and inherently prejudicial, raising, as it does, an inference that an accused who acted in a certain manner on one occasion is likely to have acted in the same or in a similar manner on another occasion and thereby putting the accused’s character in issue. An accused is entitled to be tried for the offense charged in the indictment, independently of any other offense not connected with the transaction upon which the indictment was based.” (Citation and punctuation omitted.) Williams v. State, supra at 641-642.

Accordingly, we find the trial court’s implicit finding that the performance of Bryant’s attorney was not deficient is clearly erroneous, and, therefore, we find that the trial court erred by denying Bryant’s amended motion for a new trial.

Decided July 9, 1992.

Megan C. DeVorsey, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Carl P. Greenberg, Assistant District Attorneys, for appellee.

Judgment reversed.

Beasley and Andrews, JJ., concur.