text:
    A90A1487.
    GREEN et al. v. SUN TRUST BANKS, INC. et al.
    (399 SE2d 712)
   Beasley, Judge.

Green and six other former employees of Trust Company Bank and its affiliated companies, Trust Company of Georgia and Sun Trust Banks, appeal from the grant of summary judgment to the banks and four supervisors on claims arising from termination of their employment.

Suit was filed in superior court, removed to federal court due to federal race and sex discrimination claims, and remanded to superior court after plaintiffs stipulated that they would not assert the federal claims there. Aside from those claims, the complaint alleged: defamation in that “defendants stated orally and in writing that plaintiffs were terminated for extortion by waiving late payments and interest charges on installment loans owed by some plaintiffs and some customers,” and invasion of privacy by way of said defamation; intentional infliction of emotional distress; wilful and wanton conduct giving rise to punitive damages; wrongful termination based on race, a ground assertedly impermissible as a matter of public policy; attorney fees.

Defendant Cline was a senior vice president who directly oversaw defendant Quidley, a group vice president, and defendant Chaney, an assistant vice president. Quidley oversaw defendant Scott, a vice president in charge of auto leasing, which was supervised by Gallaspy (not a party) and employed plaintiffs Hudson and Jennings, both black females. Scott also directly supervised the dealer section of leasing, in which plaintiff Miles, a white male, worked. Chaney was in charge of installment loan operations where plaintiffs Brandenburg, Sneeze, and Wilder worked, and in which plaintiff Green was the supervisor. Sneeze and Wilder are black females; Green and Brandenburg white females. Summarizing, in addition to the defendant corporations, the parties were Hudson, Jennings, Sneeze, Wilder (black females), Green, Brandenburg (white females), and Miles (white male) as plaintiffs, and Cline, Quidley, Scott and Chaney as defendants.

1. Plaintiff-appellants’ briefs contain numerous quotations from the depositions of defendants Chaney, Quidley and Cline. The banks have filed a motion to strike these portions of the briefs on the ground none of these was filed in the court below and are therefore not part of the record on appeal.

Neither the Appellate Practice Act nor the Rules of this court provide for formal striking of references from briefs, but this court may only consider matters of record in the court below. Assertions of fact made in briefs not supported by the record are not considered. Blue v. R. L. Glosson Contracting, 173 Ga. App. 622, 623 (1) (327 SE2d 582) (1985). References to the Quidley and Chaney depositions, which were not filed below nor considered by the court, will not be considered. Cline’s deposition, although not originally filed below, was considered by the court in its ruling and was made part of the record pursuant to OCGA § 5-6-41 (f). It will be considered.

2. Viewed with all inferences and reasonable doubts in favor of plaintiffs, opponents of summary judgment, Eiberger v. West, 247 Ga. 767, 769 (1) (281 SE2d 148) (1981), the facts presented for summary judgment were as follows.

In the fall of 1986, one of the bank collectors was reviewing accounts with a lot of collection activity and noticed that, although Hudson had a significant amount of collection activity, none of her payments showed on the bank records as past due.

The installment loan operations division was responsible for processing incoming payments on installment loans and crediting them to the customer’s account. A payment received after the due date was considered late. If payment was not made within 10 days of the due date, a late fee, usually 5-10 percent of the payment, was assessed. Employees in that division were trained in filling out transaction slips by which, using an appropriate code, an employee could cause a payment to show as timely when it was not or could waive the late fee without altering the receipt date.

Pursuant to federal and state banking laws, the banks carried a fidelity bond on all employees. The bond required that all employees be bondable, and that determination was to be made by the personnel department of the banks. The bond by its language terminated as to any employee committing a “dishonest or fraudulent” act.

When employees were hired, they were given an employee benefits handbook which stated: “The nature of the Company’s business imposes special obligations on all employees to safeguard its integrity. Employees are expressly forbidden to use their association with the Company for personal gain beyond authorized compensation and benefits. If there is any question that an activity might violate or appear to violate this principle, the employee must seek guidance from appropriate management authority.”

Hudson, who had worked in installment operations previously, was familiar with procedures there. She asked Sneeze to backdate one of her own personal payments on an installment loan so as to avoid a late fee. She believed that Sneeze also backdated two other payments of hers.

Sneeze acknowledged backdating Hudson’s payments as well as those of Jennings. Sneeze also acknowledged the bank policy that customers who asked that late fees be waived or that their payments be accepted as timely due to bank error had to have a valid reason before the employee was authorized to do that. No reason was given by or requested from Jennings and Hudson.

Jennings initially denied ever having her payments backdated but eventually acknowledged that she asked for waiver of late fees. No reason was given as to why she met the waiver criteria.

Wilder admitted backdating her own payment without approval from a superior and that of another employee, without a reason. She did not know it was wrong.

Brandenburg backdated her own payment which was 30 days late. Had she not done so, her loan status would have been negatively reported to the credit bureau. The only times she backdated payments for regular bank customers were on instructions from a bank officer or customer representative. She was aware that she could have avoided a late fee without backdating her payment.

The day after Hudson was terminated, Green went to her supervisor Chaney and told her she had also backdated some of her own payments, but was unaware it was wrong. She had backdated five to ten of her payments so they would appear timely.

Plaintiffs were dismissed in December 1986. Miles was a bank officer who was not terminated until March of 1987. He and Holliday, another bank employee, had an installment loan for a house trailer. He knew that an employee was not to backdate his personal loan. The employee who backdated the payment at Miles’ direction did so because he was an officer of the bank who could authorize it. She was not dismissed.

3. Enumerations 4 and 5, concerning the claim for discharge in violation of public policy plus a discovery dispute unresolved at the time of summary judgment, will be addressed together.

(a) Plaintiffs urge that A. L. Williams & Assoc. v. Faircloth, 259 Ga. 767 (386 SE2d 151) (1989), created in footnote 4 of Division 3 a cause of action for wrongful termination in an employment at will situation when race-motivated in violation of public policy. We do not read the suggestion as having changed the law in Georgia. See Borden v. Johnson, 196 Ga. App. 288, 289 (1) (395 SE2d 628) (1990), cert. denied, 196 Ga. App. __. Cf. OCGA § 45-19-20 et seq., the Fair Employment Practices Act of 1978.

(b) Plaintiffs filed two motions to compel discovery. The first was to compel response to 11 interrogatories which were objected to by defendants as irrelevant, immaterial, overbroad, burdensome and intended to harass the banks. The interrogatories dealt with other incidents of backdating by other employees of the bank, including all backdating for customers who were not employees, and with the extent of the investigation conducted by the banks of the plaintiffs’ backdating.

The second motion dealt with the banks’ refusal to answer two interrogatories seeking names of persons on two lists “described by Terry Chaney and Jim Scott in their respective depositions.” These depositions were not part of the record below and the motion thus presented nothing for either that court or this one to rule upon. The motion also sought to compel production of documents. Requests 1 — 4 and 15 are not reviewable because they refer to the Chaney and Scott depositions.

Requests 10 and 11 sought the loan history of a customer who was not involved in the dismissal of plaintiffs and Requests 14 and 16 sought all records dealing with the security investigation of plaintiffs.

No express order was entered by the court on these discovery matters; summary judgment was entered instead. “The trial judge is presumed to know the law [Dixon v. Dixon, 211 Ga. 557, 563 (87 SE2d 369)] and presumed to ‘faithfully and lawfully (perform) the duties devolving upon it by law.’ Sullivan v. Brownlee, 174 Ga. App. 813 (1) (331 SE2d 622).” Windom v. State, 187 Ga. App. 18, 19 (2) (369 SE2d 311) (1988); In re R. L. Y, 181 Ga. App. 14, 16 (351 SE2d 243) (1986). It is presumed that the court implicitly denied the motions to compel upon entering summary judgment. Windom, supra. “[T]his court will not presume the trial court committed error where that fact does not affirmatively appear.” Whiteley v. State, 188 Ga. App. 129, 130 (1) (372 SE2d 296) (1988); Fortsoh v. Fortson, 195 Ga. 750, 758 (3) (25 SE2d 518) (1943).

The discovery requests were filed in district court when the complaint contained federal claims for race and sex discrimination. The first motion to compel was filed in district court, along with a request for extension of discovery time, after the time for discovery had expired. The second was filed after the discovery had been refiled in superior court. They contend that information of others engaged in similar conduct based upon customary practice at the bank and not fired, would be relevant to the defamation claim.

This issue need not be resolved because, as we conclude, infra, there was no publication of the statements.

4. The motion is governed by the following principles in addition to those already stated. “In order ‘(t)o prevail on [such] a motion . . . (OCGA § 9-11-56), a defendant-movant is required to pierce the allegations of the complaint and to 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); [Cits.]” Willis v. Allen, 188 Ga. App. 390, 391 (373 SE2d 79) (1988). The pleadings are construed in favor of the pleader. OCGA § 9-11-8 (f); Rodgers v. Ga. Tech Athletic Assn., 166 Ga. App. 156, 161 (2b) (303 SE2d 467) (1983).

“Once the moving party for summary judgment has carried its burden of making out a prima facie case, the burden shifts and the opposite party must come forward with rebuttal evidence or suffer judgment against him. Meade v. Heimanson, 239 Ga. 177, 180 (236 SE2d 357) (1977); [Cit.]” Bright v. Knecht, 182 Ga. App. 820, 821 (357 SE2d 159) (1987).

“[A] party resisting summary judgment, in addition to coming forward with evidence which is sufficient to create a genuine issue of material fact, must present some credible warrant for its admissibility.” Wilson v. Nichols, 253 Ga. 84, 86 (3) (316 SE2d 752) (1984).

The complaint’s allegation of defamation was that “[defendants stated orally and in writing that Plaintiffs were terminated for extortion by waiving late payments and interest charges on installment loans owed by some Plaintiffs, and some customers to the bank.” Although it was also alleged that this information was provided to the bonding company, there is no evidence that any such contact was ever made. Nor is there any evidence that such statement ever appeared in writing. Therefore only slander is involved.

“ ‘Slander or oral defamation consists in: (1) Imputing to another a crime punishable by law . . . [and making charges against another in reference to his trade, office, or profession, calculated to injure him therein]’ OCGA § 51-5-4 (a) (1). ‘Publication is indispensable to recover for slander. (Cit.)’ Walter v. Davidson, 214 Ga. 187, 190 (104 SE2d 113) (1958). Generally, publication is accomplished by communication to anyone other than the person slandered. Pavlovski v. Thornton, 89 Ga. 829 (2) (15 SE 822) (1891).” Kurtz v. Williams, 188 Ga. App. 14, 15 (3) (371 SE2d 878) (1988).

The only evidence of the word “extortion” was Brandenburg’s statement that “one of the defendants” had used that word. She could not specify which defendant and acknowledged that only she and the speaker were present. Thus, even if admissible, the statement was never published. Pavlovski, supra.

Next we consider the words “embezzlement” and “stealing.”

Miles had no evidence of any such words even being used regarding him and stated that his only claim was that the banks had invaded his privacy.

Marie Green deposed that Chaney, in a meeting with her and Sneeze, told them that Hudson had been fired for backdating and that was the same as stealing from the bank. Green was Sneeze’s immediate supervisor. During a meeting with employees of the installment loan center, Chaney likened backdating to taking money from a teller’s drawer and to stealing.

Hudson deposed that she was called to a meeting with Gallaspy, her immediate supervisor, and Scott, Gallaspy’s supervisor, during which Scott said what Hudson had done was embezzlement or stealing. Cline told Hudson during a phone call with her that she had embezzled and stolen.

Jennings had a conversation with Scott during which he told her she was being fired for backdating payments.

Sneeze was told by Chaney that what she had done was the same as embezzlement.

Wilder had no knowledge of any such statements.

The only other evidence on this point was that there was gossip throughout the bank that plaintiffs had stolen and embezzled and were going to be prosecuted. There are numerous statements that one person told one plaintiff that some other person, frequently unidentified, had told him or her that they had heard similar statements. “[A]n allegation: that A said that B said ... is an allegation of what A said but it is not an allegation of what B said.” McKown v. Great A & P Tea Co., 99 Ga. App. 120, 123 (2) (107 SE2d 883) (1959). “ ‘Ordinarily hearsay testimony is not only inadmissible but wholly without probative value, and its introduction without objection does not give it any weight or force whatever in establishing a fact.’ [Cit.]” Quinones v. Maier & Berkele, 192 Ga. App. 585, 588 (1c) (385 SE2d 719) (1989). Thus, this evidence is without value.

In opposing the summary judgment, plaintiffs argue that Kurtz, supra, was not applicable because: (a) there was no bona fide reason for the communication in that Cline had ulterior motives and that backdating, the ostensible reason for firing, was not bona fide; (b) the communication went beyond the group which needed to know; and (c) the compelled self-publication rule of Colonial Stores v. Barrett, 73 Ga. App. 839 (38 SE2d 306) (1946) applies.

(a) Although plaintiffs argue that Kurtz should be reconsidered and overruled, we are not persuaded to agree.

“Over the years ... , an exception to the broad definition of publication has evolved: when the communication is intra-corporate, . . . , and is heard by one who, because of his/her duty or authority has reason to receive the information, there is no publication of the allegedly slanderous material, and without publication, there is no cause of action for slander.” Kurtz, supra at 15; e.g., Walter v. Davidson, 214 Ga. 187, 191 (2) (104 SE2d 113) (1958); Williams v. Cook, 192 Ga. App. 811 (1) (386 SE2d 665) (1989); Carter v. Willowrun Condominium Assoc., 179 Ga. App. 257, 258 (1) (345 SE2d 924) (1986). Of the statements proven by admissible evidence, most were either made directly to one of the plaintiffs in one-on-one conversations, and therefore not published, or made in meetings with the involved plaintiff and immediate supervisory personnel and a personnel department representative. These were all intra-corporate communications under Kurtz.

(b) There was evidence of two group meetings. Green testified that Chaney held a meeting in the installment loan center with the employees of that section. Green deposed that “[t]he only thing I can recall is that [Chaney] did tell us then that it was wrong for us to be doing that [backdating own loans] and that it was more or less stealing from the bank.” The meeting occurred before Green’s dismissal, thus during the investigation of the backdating. The second was held by Cline, again with only installment loan operations department employees present. It occurred in February 1987. He told them he wanted to give them the specifics of the firings, that the employees had backdated their own and friends’ loan payments and that “[t]hey cannot be bonded. We had no choice.”

Pretermitting the question of whether these meetings come under the Kurtz rationale, they do come within OCGA § 51-5-7 as statements made “in good faith in the performance of a public duty,” or a “legal or moral private duty.” Accepting plaintiffs’ statements that they were unaware that such a practice was against bank policy and wrong, Chaney and Cline had a duty as supervisors to advise the employees of the section involved in processing loans that it was improper. Also, addressing a group including new employees who replaced plaintiffs, Cline advised them of the backdating by plaintiffs and that they were therefore unbondable. He had been advised of the bond problem by the head auditor and personnel manager of the bank, who were directly responsible for making that decision. The statements were privileged; Williams, supra at 812 (2); Land v. Delta Airlines, 147 Ga. App. 738 (5) (250 SE2d 188) (1978).

Plaintiffs correctly point out that malice in making such statements will defeat the privilege. Cohen v. Hartlage, 179 Ga. App. 847, 849 (348 SE2d 331) (1986). There is a total lack of evidence of any such malice. Williams, supra at 812 (3); Rucker v. Gandy, 158 Ga. App. 104, 106 (1) (279 SE2d 259) (1981).

(c) Plaintiffs also contend that trial should have been allowed due to compelled self-publication to potential employers while applying.

Colonial Stores v. Barrett, supra, involved compelled, not voluntary publication by the employee. This was explained in Sigmon v. Womack, 158 Ga. App. 47, 49 (1) (279 SE2d 254) (1981) and Brantley v. Heller, 101 Ga. App. 16, 20 (2) (112 SE2d 685) (1960). All plaintiffs have shown is purely voluntary self-publication, and Colonial Stores is of no assistance to them. The conclusion must be that there was no error in granting summary judgment on these defamation claims.

5. Was summary judgment warranted on the claim for intentional infliction of emotional distress?

In order to sustain such a claim, plaintiffs were required to put forth evidence that defendants’ behavior was wilful and wanton or intentionally directed to harm plaintiffs; that these actions were such as would naturally humiliate, embarrass, frighten, or outrage plaintiffs; and that the conduct caused mental suffering or wounded feelings or emotional upset or distress. Coleman v. Housing Auth. &c., 191 Ga. App. 166, 170 (1) (381 SE2d 303) (1989).

Decided November 16, 1990

Rehearing denied November 30, 1990

Henning, Aitkens, Snellings & Kearns, Stanley T. Snellings, Ford & Haley, James L. Ford, for appellants.

Constangy, Brooks & Smith, Edward Katze, Rosemary P. Lumpkins, Donald W. Benson, Neely & Player, John W. Winborne III, for appellees.

The absence of any evidence that the conduct of defendants rose to the requisite level of outrageousness, Quinones,,supra at 587 (la), warranted summary judgment.

6. Finally, plaintiffs contend summary judgment on their invasion of privacy claim should have survived. In their First Amended Complaint, plaintiffs alleged that the statements were defamatory as a matter of law and “constituted an invasion of each Plaintiffs’ common law right to privacy.”

Assuming this was sufficient to raise a claim, the argument that plaintiffs were placed in a false light before the entire bank population, thereby invading their privacy, is not reflected in the record and therefore presents nothing for our review. Even on its merits, the argument fails. As discussed above, there is no admissible evidence that the entire bank population was advised of the situation by the defendants. The two group meetings were subject to a privilege, assuming the statements were disseminated beyond the necessary intra-corporate group, and provide no basis for the claim.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.

       The contention was that the bank fired the four black females because of their race and/or sex and then fired the two white females and one white male to cover this up.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A90A1183.
    KELLY v. THE STATE.
    (399 SE2d 568)
   Pope, Judge.

Defendant Thomas Kelly was convicted of two counts of child molestation, and appeals from the denial of his motion for new trial. Held:

1. Defendant first contends the trial court erred in not cautioning the 12-year-old victim’s foster mother that she was not to influence the victim concerning whether she would consent to a pre-trial interview with defense counsel. Also in support of this enumeration, defendant contends the prosecutor’s actions in this case impermissibly denied his counsel access to the witness, and that he was denied his right to conduct a meaningful cross-examination of the witness in violation of the Sixth Amendment.

The record shows the trial court questioned the victim, pursuant to the motion of defendant, to ascertain whether she would consent to be interviewed by defendant’s counsel. The court informed the victim she was free to decide the issue herself. The victim stated she would “probably” talk to defense counsel. The trial court directed that counsel could interview the witness that afternoon and that the foster mother could be present during the interview. Although the testimony concerning the events which occurred subsequent to the hearing is not without conflict, it appears that both a DFCS representative and the child’s foster mother expressed concern over the interview process and the victim was not interviewed as previously agreed. When these events were brought to the attention of the trial court, the judge recalled the victim who testified she discussed her decision with her foster mother and decided not to be interviewed. However, the victim stated to the court that this was her own decision. The trial court appointed a guardian ad litem for the victim, who interviewed her and reported that she maintained her decision not to talk with defense counsel. The guardian ad litem testified “this is her own decision. She has talked with her foster mother about this, but in addition she just feels that .she doesn’t want to do it at this time. She’s aware that she changed her mind on that, but she’s sticking with her feeling that she doesn’t wish to talk to the lawyer at this time.”

Relying on Dover v. State, 250 Ga. 209 (2) (296 SE2d 710) (1982), cert. denied, 459 U. S. 1221 (1983), the State argues that when the witness is a child, the child’s guardian (here DFCS) has the right to make the decision for the child as to whether the child will be interviewed by defendant’s attorney prior to trial. However, defendant argues the foster mother’s activities in influencing the victim in her decision to be interviewed are strictly prohibited by this court’s holding in Davidson v. State, 183 Ga. App. 557 (4a) (359 SE2d 372), cert. denied, 183 Ga. App. 905 (1987). In Davidson the issue was whether the trial court erred by failing to direct the child’s legal custodian to allow defense counsel to conduct a pre-trial interview with the victim. In finding no merit to this enumeration, this court noted that the trial court did order the legal custodian to make the victim available to defense counsel for a pre-trial interview and that the trial court noted that the victim should not be influenced by the desires and instructions of her legal custodian in deciding whether to talk to defense counsel. This court, however, did not indicate whether it would have been error if the trial court had allowed the legal custodian to make the decision for the child, only that it did not do so in that case. We reiterate that based on Dover, supra, it is permissible for the legal custodian to decide whether the child will be made available to defense counsel for a pre-trial interview.

Moreover, pretermitting the question of who has the right to make the decision for the child, the record plainly shows that the victim in the case at bar exercised her own prerogative in refusing to be interviewed, and neither the State nor the foster mother denied counsel access to the witness. “Accused and his counsel have the right to interview witnesses before the trial; and the state has no right to deny them access to a witness material to the defense, but a witness cannot be compelled to submit to such interview. Emmett v. State, 232 Ga. 110, 113 (2) (a) (205 SE2d 231) (1974); Rutledge v. State, 245 Ga. 768, 769 (2) (267 SE2d 199) (1980).” (Punctuation omitted.) Foster v. State, 170 Ga. App. 222, 223 (2) (316 SE2d 828) (1984). Accord Pendergrass v. State, 168 Ga. App. 190 (2) (308 SE2d 585) (1983). Furthermore, our review of the transcript shows no merit to defendant’s contention that the lack of access to the victim prior to trial prevented him from conducting a thorough and sifting cross-examination of the witness. “ ‘(T)he burden is on the party claiming error not only to show error, but error which injured him, and unless the error results in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right, an appellate court will not reverse. (Cit.)’ Steward v. State, 180 Ga. App. 266, 267 (349 SE2d 18) (1986).” Terry v. State, 190 Ga. App. 570, 571-572 (2) (379 SE2d 604) (1989).

2. Defendant next contends the trial court erred in allowing a DFCS worker to testify concerning statements made by the victim because such testimony was cumulative and impermissibly bolstered the victim’s trial testimony. Defendant also assigns error to the playing of the videotape of the victim on this same basis. However, the record shows that at the time defendant interjected his “bolstering” objection to the witness’ testimony, the witness was testifying not about statements made by the victim but about the circumstances surrounding the making of the videotaped statement of the victim. This testimony was not only admissible but necessary to the subsequent introduction of the videotape. See, e.g., Newberry v. State, 184 Ga. App. 356 (2 & 4) (361 SE2d 499) (1987). Moreover, neither the witness’ testimony concerning the statements made by the victim nor the videotape of the victim were subject to the objection now urged on appeal. “The testimony was admissible as provided for by statute (under OCGA § 24-3-16) and case law (Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985)). [Likewise, the videotape was reliable and admissible under OCGA § 24-3-16. See, e.g., Newberry v. State, supra at (2).] Moreover, ‘inquiry as to impermissible bolstering no longer is necessary following Cuzzort, supra. (Cit.)’ Richardson v. State, 256 Ga. 746 (5) (353 SE2d 342) (1987). No error was committed.” Treadway v. State, 191 Ga. App. 111, 112 (2) (381 SE2d 43) (1989). See also McCoy v. State, 194 Ga. App. 244 (3) (390 SE2d 251) (1990).

3. Defendant also argues the trial court erred in allowing an investigator from the sheriff’s office to testify concerning statements made by the victim, contending that such statements did not fall within the purview of OCGA § 24-3-16, inasmuch as that section allows the person to whom [the child’s statements are] made to testify concerning the statement. As to this enumeration the record shows the witness was allowed to testify as to statements which were not made directly to him but which he observed and heard by watching a monitor during the taping. We agree the testimony was not admissible under OCGA § 24-3-16; the question remains, however, whether the introduction of such testimony was in fact harmful. Under the circumstances here, we find no error. The videotape was introduced at trial and played for the jury. Moreover, the officer’s testimony was merely cumulative of other testimony presented at trial, including that of the victim and the DFCS worker who also testified concerning the videotaped statement of the victim, as well as the officer’s own testimony concerning statements made directly to him by the child when he interviewed her. “Even if any error did occur, it was harmless because [defendant] was afforded the opportunity to cross-examine the victim about her out-of-court statements, and the [complained of] testimony was cumulative of other evidence adduced during the trial.” Hicks v. State, 196 Ga. App. 311, 312 (1) (396 SE2d 60) (1990). Consequently, this enumeration presents no ground for reversal. See Luckey v. State, 185 Ga. App. 262, 263 (2) (363 SE2d 791) (1987).

4. Defendant asserts the trial court erred in allowing a DFCS worker to testify concerning the child abuse accommodation syndrome because she was not properly qualified as an expert witness. Defendant’s main contention in support of this enumeration appears to be that the expert was not trained as a psychologist or psychiatrist. The witness in the case at bar testified that she gained her knowledge about child molestation through experience, through intensive and on-going training by attending frequent seminars, five or six of which dealt solely with child molestation, and through the study of literature on child abuse, including the work of Roland Summitt and his five-year research on the child abuse accommodation syndrome. “ ‘ “[T]he special knowledge required to qualify as an expert may be derived from experience as well as study. [Cits.]””’ Westbrook v. State, 186 Ga. App. 493, 494-495 (2(a)(1)) (368 SE2d 131) (1988). “[A] person’s ‘qualification as an expert witness rests entirely in the sound discretion of the judge. . . . The decision of the judge will not usually be overturned’ unless the witness actually lacks appropriate credentials or the judge has applied the wrong criteria. We find here that [the witness’] qualifications were appropriate and adequate.” Hyde v. State, 189 Ga. App. 727, 729 (1) (377 SE2d 187) (1988). Moreover, defendant fails to allege how he has been harmed by the testimony of the witness. “An appellant must show not only alleged error but also ensuing harm. Bowen v. State, 170 Ga. App. 49, 50 (1) (316 SE2d 33) (1984).” Hunter v. State, 194 Ga. App. 711, 713 (2) (391 SE2d 695) (1990).

5. We have examined the court’s charge to the jury on promiscuity and find no merit to defendant’s contentions that said charge constituted an improper intimation or expression of the opinion of the trial court as is prohibited by OCGA § 17-8-57.

6. In his sixth enumeration of error defendant contends the trial court erred in allowing a “question and answer” page to be admitted into evidence as part of his in-custody statement. The record shows the statement admitted at trial consisted of two pages, both handwritten by one of the officers conducting the interview of defendant, and that the second page, but not the first, was signed and dated by the defendant. However, our examination of the statement clearly shows the second page was merely a continuation of the first as shown by the fact that the last sentence of the first page was continued and completed on the top of the second page. Moreover, although defendant testified at the Jackson-Denno hearing that he had never seen the first page of the statement and denied making some of the responses contained therein, one of the interviewing officers testified that the statements contained on both pages were made by defendant and that defendant read both pages prior to signing the bottom of the second page. “Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of [an in-custody statement] will be upheld on appeal.” (Punctuation and citation omitted.) Head v. State, 191 Ga. App. 262, 264-265 (5) (381 SE2d 519) (1989).

7. Lastly, defendant contends the trial court erred in allowing another child to testify she had been molested by the defendant.

(a) In support of this enumeration defendant first argues the testimony was inadmissible because the State failed to give notice of its intent to present evidence of similar transactions as required by Uniform Superior Court Rule 31.3. The record shows the State offered the child as a rebuttal witness following the testimony of defendant’s character witnesses. The trial court ruled the testimony admissible pursuant to Uniform Superior Court Rule 31.3 (D) which provides as follows: “If upon the trial of the case the defense places the defendant’s character in issue, evidence of similar transactions or occurrences, as shall be admissible according to the rules of evidence, shall be admissible, the above provisions [relating to notice of intent to present evidence] notwithstanding.”

Decided November 30, 1990.

Robert J. Reed, for appellant.

Michael H. Crawford, District Attorney, E. Jay McCollum, Assistant District Attorney, for appellee.

Defendant urges, however, that even if the witness’ testimony was admissible under Rule 31.3 (D), as a rebuttal witness the child’s testimony should have been limited to testimony concerning the general bad character of defendant, and thus the trial court erred by allowing the child to testify concerning the specific acts of defendant. “This argument has been waived because it was not presented to the trial court.” Aguilar v. State, 240 Ga. 830, 834 (7) (242 SE2d 620) (1978).

(b) Defendant also posits that the trial court erred in allowing the witness to testify in rebuttal because her name was not on the witness list the State furnished to the defendant pursuant to OCGA § 17-7-110. “However, this court has repeatedly ruled that calling an unlisted witness in rebuttal is not error and does not violate § 17-7-110. [Cits.]” Forney v. State, 255 Ga. 316, 318 (2) (338 SE2d 252) (1986). Consequently, this enumeration provides no basis for reversal.

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.


author: McMurray, Presiding Judge.

text:
    A90A1604.
    STATE OF GEORGIA v. GARRISH.
    (399 SE2d 572)
   McMurray, Presiding Judge.

This case presents a question of first impression: Can a counterclaim for modification of a Uniform Reciprocal Enforcement of Support Act (“URESA”) support order be asserted by the defendant in a URESA contempt proceeding? The answer is “no.”

On January 27, 1989, a consent order for URESA support was entered in the Superior Court of Hall County. Pursuant thereto, defendant David E. Garrish was ordered to pay the sum of $139.20 per week for the support of three minor children. Subsequently, the State of Georgia filed a rule for contempt on behalf of plaintiff Gloria Smith asserting that defendant was in arrears in his payments (in the amount of $1,444) and should be held in contempt for failure to abide by the URESA support order. Defendant answered and counterclaimed, requesting that his support payments be reduced because of a material change of circumstances affecting his income.

Following a hearing, the superior court determined that defendant was $4,204.80 in arrears under the URESA support order; but it ruled that defendant was not in contempt of that order. With regard to defendant’s counterclaim for reduction of support, the superior court acknowledged that a counterclaim for modification of support does not lie in the usual contempt proceeding. See Arnold v. Arnold, 236 Ga. 594 (225 SE2d 30). The superior court ruled, nonetheless, that such a counterclaim could be asserted in a URESA contempt proceeding because, unlike the usual support case, there is no mechanism permitting URESA defendants to modify a URESA order.

Considering the merits of defendant’s counterclaim, the superior court ruled that a material change in defendant’s income and financial condition justified a reduction in his URESA support obligation. Accordingly, his URESA support payments were reduced to $80 per week.

Fearful that every URESA contempt proceeding will be turned into a modification action if the superior court’s ruling was allowed to stand, the State applied for discretionary review. We granted the State’s application for a discretionary appeal. Held:

Our courts have repeatedly held that a counterclaim for reduction of support cannot be heard in a contempt proceeding. See, e.g., Hancock v. Coley, 258 Ga. 291, 294 (4) (368 SE2d 735); Sells v. Eilender, 251 Ga. 463 (306 SE2d 662); Arnold v. Arnold, 236 Ga. 594, supra; Beach v. Beach, 224 Ga. 701, 703 (164 SE2d 114). We find it appropriate to quote from the special concurrence of Justice Hill, joined by Justice Ingram, in McNeal v. McNeal, 233 Ga. 836, 838 (213 SE2d 845), wherein it was stated that “[i]f the rule were otherwise, a husband could decline to pay alimony or child support so as to precipitate an application for contempt upon which a counterclaim for modification could be based. This would encourage nonpayment and deprivation of those entitled by the judgment to receive such payments.”

We can see no reason why the rule should not be applied equally to contempt proceedings stemming from divorce decrees and contempt proceedings stemming from URESA support orders. The mere fact that a procedure to permit the modification of a URESA support order may not be in place (but see OCGA § 9-2-3), is not our concern. It is a matter which addresses itself to the legislature, not the courts.

The only issue for determination in this URESA contempt proceeding was the enforcement of the support obligation previously established by the URESA order. It follows that the trial court erred in considering defendant’s counterclaim for the modification of support.

Judgment reversed.

Carley, C. J., and Sognier, J., concur.

Decided November 30, 1990.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Assistant Attorney General, for appellant.

Michael R. Casper, Watson & Watson, Anne L. Watson, for appellee.


author: Beasley, Judge.

text:
    A90A2051.
    HARRIS v. WALL TIRE COMPANY.
    (399 SE2d 580)
   Beasley, Judge.

Plaintiff Harris appeals the trial court’s grant of partial summary judgment in favor of defendant Wall Tire Company on Harris’ claim for damages for emotional distress, stemming from an automotive mishap allegedly caused by Wall’s negligence. The left front wheel of Harris’ car came off as he and his family were driving on an interstate highway. Harris claimed this occurred because Wall failed to properly reattach the wheel after it had been removed in order to repair the car’s front brake pads.

1. At the time of the incident, Harris sustained property damage but neither Harris nor his family sustained any physical injury. Even though Harris maintains that he suffered certain stomach problems (trouble with spicy foods) and limited sleep disturbances (for several weeks stayed awake at night worrying), the only monetary losses incurred and claimed by Harris resulted from the damage to his vehicle.

The trial court correctly applied the principles set forth in Ob-Gyn Assoc. of Albany v. Littleton, 259 Ga. 663 (386 SE2d 146) (1989) to conclude that, based on the undisputed circumstances, Harris could not recover as a matter of law on his claim for emotional distress. Appellant does not rely on the impact rule but rather on the pecuniary loss rule. The Supreme Court reiterated this rule, that “for a pecuniary loss to support a claim for damages for emotional distress, the pecuniary loss must occur as a result of a tort involving an injury to the person even though this injury may not be physical.” Id. at 667. Here the pecuniary loss resulted from an “injury” to plaintiff’s automobile, which sustained approximately $1,000 worth of damage. There was no injury to plaintiff’s person except the emotional distress manifested by the initial fright, a sensitized stomach thereafter, temporary loss of sleep, aggravation, and necessity to devote vacation leave to attend to car repairs. Wall was entitled to the grant of partial summary judgment.

2. Appellee Wall’s motion to dismiss the appeal because of untimely filing of appellant’s brief and enumeration of errors, while well-taken, is denied.

Decided November 30, 1990.

Chew & Lamberth, Walter S. Chew, Jr., for appellant.

Chambless, Higdon & Carson, Joseph H. Chambless, Emmitte H. Griggs, Gregory J. Spicer, for appellee.

3. Appellee’s motion for sanction under Court of Appeals Rule 26 (b) for bringing a frivolous appeal is also denied.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


author: Deen, Presiding Judge.

text:
    A90A2091.
    A90A2092.
    ANCRUM v. THE STATE. PARKER v. THE STATE.
    (399 SE2d 574)
   Deen, Presiding Judge.

Appellants Parker and Ancrum were jointly tried and convicted of the offenses of trafficking in cocaine and possession of a dangerous drug. Parker was also convicted in the same trial of possession of marijuana.

1. Appellants contend that the trial court erred by instructing the jury on alternative methods by which trafficking in cocaine may be committed under OCGA § 16-13-31 (a) (1), where the indictment charged only the method that the appellants knowingly possessed the cocaine. The trial court charged that the offense may be committed by “any person who knowingly sells, delivers, or brings into this state, or who is knowingly in possession of [cocaine]. . . .” Reversible error occurs when the court instructs that “an offense may be committed in more than one manner where only one manner is alleged in the indictment and no remedial instructions are given to limit the jury’s consideration to that particular manner.” Owens v. State, 173 Ga. App. 309, 312 (326 SE2d 509) (1985); Cauthen v. State, 177 Ga. App. 565, 567 (340 SE2d 199) (1986). Reviewing the court’s charge in its entirety, we find that adequate limiting instructions were given. The court read the indictment to the jury, pointing out that in Count 1 the appellants were charged with trafficking by knowing possession of the cocaine. The court further instructed that the jury should reach its decision on the trafficking offense based on the charges as made in Count 1 of the indictment. See Ross v. State, 192 Ga. App. 65, 66 (383 SE2d 627) (1989). The instructions were sufficient to prevent any likelihood that the jury would mistakenly convict appellants on evidence supporting a form of trafficking in cocaine not charged in the indictment. We therefore find no reversible error. Searcy v. State, 168 Ga. App. 233 (308 SE2d 621) (1983).

2. Both appellants claim error in the failure of the court to give a charge defining possession as an element of the offenses. Appellant Ancrum further complains that the court erred by failing to give his requested charges relating to the issue of possession. The record shows the following facts relevant to these enumerations: Appellants Parker and Ancrum, along with Gregory Lewis, were traveling in an automobile when they were stopped by a McIntosh County deputy, who observed the vehicle weaving. The deputy’s suspicions were aroused when Parker, who was driving at the time, appeared “nervous” and “fidgety.” Parker signed a written consent to search form after declaring he was the owner of the car. Officers found a brown paper bag and a jar under the front seat. The bag contained 76.4 grams of crack cocaine and the jar contained 452.5 grams of tetracaine (defined as a dangerous drug in OCGA § 16-13-71) and ephedrine, which a witness from the State Crime Lab testified he had seen used as a mix with cocaine to dilute it and increase its bulk. Additionally, officers removed small amounts of white powder, later identified as cocaine hydrochloride, from the front and rear seats of the car. After all three occupants of the car were arrested, a search of Parker’s person revealed $1,100 in cash and 1.2 grams of marijuana. The search also revealed papers showing the car had been rented by a Tomasina Haygood from a rental agency in Charleston, South Carolina. Parker did not testify at trial. Ancrum and Lewis testified that Ms. Haygood gave the car to Ancrum so they could go to Miami to pick up her boyfriend, Parker. After leaving from Charleston and picking up Parker in Miami, they were arrested on the present charges on the return trip. Both Lewis and Ancrum claimed they had no knowledge of the cocaine or of any illegal purpose for the trip. Lewis was tried with the appellants on charges of trafficking in cocaine by knowing possession and possession of a dangerous drug and was found not guilty on all charges.

The State proceeded on the theory that all three defendants had joint possession of the contraband found under the seat of the rented car in which the defendants were passengers. The prosecution and defense of this case turned on proof, or the lack of it, that each of the defendants had actual or constructive possession of the cocaine and other dangerous drugs. The trial court’s instructions on trafficking in cocaine informed the jury that the offense is committed by one “who is knowingly in possession of [the cocaine].” As to the possession of a dangerous drug charge, the court instructed that, “It shall be unlawful for any person to possess, in this State, any dangerous drug except as authorized by law.” The court further charged that each element of the offenses must be proven beyond a reasonable doubt. The court gave no instruction on the legal definition of actual or constructive

possession even though the State requested such a charge and appellants presented a charge at least partially covering this issue. The appellants also made several additional requests to charge related to the possession issue on “mere presence” (requests to charge 10, 11 and 15) and “equal access” (requests to charge 13 and 18). Only Ancrum complains of the failure to give these additional charges. The trial court committed no error in refusing to give the charges on “equal access.” In the automobile context the equal access rule applies to overcome the presumption that the contraband was in the exclusive possession of the driver or owner. Based on evidence that the driver, Parker, was not in exclusive possession of the rented vehicle and others had access to it, the State proceeded on a theory of joint possession. The equal access defense does not apply where the defendants are alleged to be in joint possession of the contraband. See Robinson v. State, 175 Ga. App. 769, 772 (334 SE2d 358) (1985); Lance v. State, 191 Ga. App. 701, 703 (382 SE2d 726) (1989); Bruce v. State, 191 Ga. App. 580, 582 (382 SE2d 367) (1989). We likewise find no error in the court’s refusal to instruct on “mere presence.” “Mere presence at the scene of the crime is not a recognized defense to a criminal charge. Rather, the rule that mere presence without more is insufficient to convict is really a corollary to the requirement that the State prove each element of the offense charged.” Muhammad v. State, 243 Ga. 404, 406 (254 SE2d 356) (1979). As to request to charge number 12, it reads: “I charge you that the state — to establish possession or trafficking in cocaine — must establish facts beyond a reasonable doubt that the defendant had dominion and control over the cocaine as well as that he had actual knowledge of its presence and an actual intent to possess it. I charge you that it would not be sufficient to prove merely that the defendant used an automobile, or was riding in an automobile belonging to someone else who may have possessed the contraband.” We do not find this charge to be an accurate statement of the law of possession as applied to the facts of this case, and it is mixed with a request on “mere presence.” Accordingly, there was no error to refuse this charge. Kessel v. State, 236 Ga. 373, 374 (223 SE2d 811) (1976).

Both appellants complain of the failure of the trial court to give any instructions to the jury on the law of possession when this issue was an essential element of the offenses. This enumeration has been addressed under differing circumstances. In Donaldson v. State, 180 Ga. App. 879-880 (350 SE2d 849) (1986), where the defendant was charged with possession of cocaine found on his person, we held there was no error in the failure of the trial court to give a charge on actual and constructive possession because the defendant failed to request the charge, and we found that intelligent jurors would have no difficulty understanding the meaning of a simple word like possession under those circumstances. No reversible error was found on the trial court’s failure, without request, to charge on the law of actual or constructive possession in Westfall v. State, 185 Ga. App. 687, 688 (365 SE2d 527) (1988). The defendant in Westfall, a burglary case, was riding as a passenger in a van containing the stolen property. We noted that the trial court instructed the jury that mere proximity to the stolen property did not establish possession, and that the State had to rebut the inference that the driver was in possession of the contents of the van. Id. Unlike Donaldson, the issue of possession is more complex in the present case because the cocaine was found, not on the person of appellants, but under a seat accessible to all the defendants. Unlike Westfall, in this case there were no other instructions given to guide the jury on the possession issue. Even where a defendant makes no request to charge on an issue, the failure to instruct is harmful and erroneous as a matter of law where under the circumstances the jury is left without the proper guidelines for determining guilt or innocence. Spear v. State, 230 Ga. 74, 75 (195 SE2d 397) (1973); Westfall, supra at 688. “ ‘(I)t is the duty of the judge, with or without request, to give the jury an appropriate instruction as to the law on each substantive point o[r] issue involved in (a) case’ so as to enable the jury to judiciously decide the guilt or innocence of a defendant. [Cits.]” Powers v. State, 150 Ga. App. 25, 26 (256 SE2d 637) (1979); Phelps v. State, 192 Ga. App. 193, 195 (384 SE2d 260) (1989).

Under the present facts, whether the appellants had actual or constructive possession of the cocaine was the central issue for the jury. “ ‘The law recognizes two kinds of possession, actual possession and constructive possession. A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.’ [Cits.]” Lockwood v. State, 257 Ga. 796, 797 (364 SE2d 574) (1988). Given the facts of this case, without any instruction on the law of possession, the jury was left without appropriate guidelines for reaching its verdict. The failure to so charge was substantial error and harmful as a matter of law and requires reversal of the convictions of both appellants under Counts 1 and 3 of the indictment. OCGA § 5-5-24 (c). This error does not affect Parker’s conviction under Count 2 of the indictment for possession of marijuana found on his person, which is affirmed.

3. We find no merit in appellant Parker’s claim that the trial court erred in the charge it gave on the burden of proof by instructing that each element of the crime must be proven “beyond a reasonable doubt, and to a moral and reasonable certainty.” Substantially similar language was approved in Jones v. State, 156 Ga. App. 543 (275 SE2d 119) (1980).

Decided November 30, 1990.

Grayson P. Lane, for appellants.

Dupont K. Cheney, District Attorney, J. Stephen Archer, Assistant District Attorney, for appellee.

4. Appellant Ancrum claims the trial court erred by failing to grant him a continuance to obtain an out-of-state witness and by failing to give a related request to charge. We need not address this enumeration because it is based on allegations in appellant’s brief not contained in the record or transcript before this court. Berry v. Demmons, 160 Ga. App. 712 (288 SE2d 78) (1981). In any event, the record reflects that appellant announced ready when the case was called for trial, which amounted to a waiver of any motion for continuance. Whatley v. State, 162 Ga. App. 106 (290 SE2d 316) (1982).

Judgments affirmed in part and reversed in part.

Pope and Beasley, JJ., concur.


text:
    A90A2182.
    MORGAN v. THE STATE.
    (399 SE2d 578)
   Deen, Presiding Judge.

Appellant and a co-defendant not a party to this appeal were arrested in December of 1988 and charged with the armed robbery of a taxi driver. Appellant was also charged with possession of a firearm by a convicted felon. A DeKalb County jury found him guilty on both counts, and he received concurrent 20-year and five-year sentences. After denial of his motion for new trial, Morgan appeals to this court, enumerating as error the sufficiency of the evidence and the trial court’s denial of his motion to suppress the identification. Held:

1. Addressing first the assertion that the one-on-one show-up was impermissibly suggestive, we learn from the record that two men answering generally to the description of appellant and his co-defendant entered a taxi and, after a fairly extended ride, robbed the driver at gunpoint. The driver testified that, because he was aware of the current high incidence of taxi robberies, he had looked carefully at the faces of the two passengers both before and during the robbery.

After the robbery the driver alerted the dispatcher, who called the police, to whom the driver described the robbers; he also gave this information to a number of cab drivers. Nearly one month later, on January 9, 1989, a driver who had learned of the incident picked up appellant and his co-defendant and, noticing that they fit the description of the men wanted, he dropped them at their destination and alerted other drivers, one of whom located a police officer, who hurried to the scene and questioned the two. The driver involved in the December 1988 incident was summoned to the scene, and he positively identified both. They were then arrested. Appellant was tried and found guilty on both counts, the trial court ruling that the pair had been properly detained by police but finding the identification procedure impermissibly suggestive. The court then adverted to the analysis set forth in Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) (1972), and concluded that in the instant case, as in Biggers, the totality of the circumstances rendered the identification reliable. See Killens v. State, 184 Ga. App. 717 (362 SE2d 425) (1987).

Determination of whether a challenged pretrial identification must be suppressed requires a two-step analysis: first, it must be determined whether the identification procedure was impermissibly suggestive. If the inquiry is answered in the affirmative, then it must be determined whether, under the totality of the circumstances, there was a substantial likelihood of irreparable misidentification, with ensuing harm. Payne v. State, 233 Ga. 294 (210 SE2d 775) (1974). “[T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Neil v. Biggers, supra at 199-200.

The record in the instant case indicates that the identification process met the Biggers criteria and authorized the trial court’s ruling. The driver testified that he had had ample time to observe the witnesses and had made an affirmative effort to scrutinize their appearance. According to the record, the driver unhesitatingly and positively identified appellant both when he was apprehended (only 25 days after the robbery) and four months later, at trial. The driver further testified that the latter identification was based on his recollection of appellant’s appearance at the time of the robbery and not at the show-up. Although there were certain lacunae and discrepancies in the physical description of the robbers, the trial court, considering the totality of the circumstances, was satisfied that no misidentification had occurred.

In a hearing on a motion to suppress, “findings of fact and of credibility ... are for the trial court and should not be set aside unless clearly erroneous.” Carter v. State, 192 Ga. App. 726, 727 (386 SE2d 389) (1989). We find in the instant case that there was no error in the trial court’s conclusion or in the verdict of the jurors, who, as rational triers of fact, were authorized by the evidence to find appellant guilty as charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided November 30, 1990.

John H. Tarpley, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, John H. Petrey, Robert M. Coker, Assistant District Attorneys, for appellee.

2. Turning to the other enumeration of error, we find no merit in the contention that the detention of appellant was an illegal arrest and therefore grounds for granting his motion to suppress. As indicated in Division 1, supra, the driver who had transported the suspects in December, being intensely aware of the large number of taxi robberies, had taken special pains to note their appearances and to disseminate this information to other drivers. Thus, although the police officer who detained appellant lacked probable cause at the time he first came upon the scene, he had reasonable, articulable grounds, consisting of the second driver’s recollection of the publicized descriptions, to suspect that appellant and his co-defendant had committed a crime.

“ ‘It is clear that in cases where there are some reasonable articulable grounds for suspicion, the state’s interest in the maintenance of community peace and security outweigh the momentary inconvenience and indignity of investigatory detention.’ [Cit.] It is also clear that what is a ‘reasonable articulable ground’ for the detention may be less than probable cause to make an arrest or conduct a search. . . .” Allen v. State, 140 Ga. App. 828, 830 (232 SE2d 250) (1976); quoted in Williams v. State, 188 Ga. App. 496 (373 SE2d 281) (1988); accord Baxter v. State, 188 Ga. App. 598 (373 SE2d 834) (1988). In the instant case the officer clearly had a reasonable and articulable ground for a brief detention; the incident lasted between 15 and 30 minutes. A fortiori the detention was reasonable when the officer learned, only minutes after his arrival, that the driver in the December incident was at that moment en route to the scene. Upon the latter’s arrival and positive identifications of the suspects, there of course existed an abundance of probable cause.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A1244.
    REINHARDT v. THE STATE.
    (399 SE2d 729)
   Pope, Judge.

Defendant Jerry Reinhardt was found guilty of trafficking in cocaine, and appeals.

Construed so as to support the verdict, the evidence shows that defendant rented the van in which the contraband was found and paid a friend, Felipe Lopez-Mejia, $2,000 to drive from Ft. Lauder-dale, Florida, to an area near Chicago. Mejia, who denied any knowledge of the cocaine found in the van, initially stated to Trooper Ralston, the arresting officer, that he was driving to Indiana to purchase some restaurant equipment. At trial Mejia testified he was traveling to Chicago to pick up defendant’s car. Defendant also testified at trial that Mejia was en route to Chicago to pick up his car, which defendant was forced to leave for repairs on an earlier trip. According to Mejia, approximately one month earlier defendant had paid him $1,500 to drive to Merrillville, Indiana, which is close to the Chicago area, to pick up some legal documents for him. Mejia stated that on each trip his instructions were to call defendant shortly before he reached his destination and defendant would give him" further instructions. Mejia testified that on the first trip he was instructed to leave the car in a parking lot with the key in an accessible place and the papers would be placed in the trunk of the car.

After he was apprehended in Georgia, Mejia agreed to cooperate with law enforcement officials by allowing them to tape record telephone conversations between himself and the defendant. Mejia did not disclose to defendant that cocaine had been discovered in the van and defendant thought Mejia had been arrested solely on the basis that he was driving with a suspended license. During the course of these conversations, defendant asked Mejia if he had lost his head after being stopped, if he had talked to law enforcement officials, if he was calm (and admonished him to stay that way), and, repeatedly, if everything was okay. When asked at trial to explain his statement on one of the tapes that “stuff” in the van was “well hidden,” defendant responded he “didn’t know what [Mejia] was talking about, whatever it was he was talking about, my thoughts were that it was well-hidden, because I didn’t see it.”

1. Defendant first argues that pursuant to the holding in Sabel v. State, 248 Ga. 10 (6) (282 SE2d 61) (1981), cert. denied, 454 U. S. 973 (1981), the trial court erred in denying his motion to conduct an independent examination and inspection of the tape recordings of the telephone conversations between defendant and Mejia. We find no error. Although it is true that defendant is entitled to have an independent expert examine evidence which is both critical to conviction and subject to varying expert opinion, see Sabel, supra, pretermitting the question of the “critical” nature of the evidence here, we find no basis for concluding that the evidence in question was in fact subject to varying expert opinion. Relying on Carpenter v. State, 167 Ga. App. 634 (1) (307 SE2d 19) (1983), aff’d, 252 Ga. 79 (310 SE2d 912) (1984) defendant argues that all tape recordings and their authenticity are subject to varying expert opinion. However, in that case evidence was presented challenging the authenticity of the tapes on the basis that the tapes may have been the subject of tampering. In the case at bar defendant, who was present at trial and testified after the tapes had been played for the jury, does not suggest that the tapes were tampered with but argues instead that his expert should be allowed to examine the tapes to ascertain whether a “mechanical flaw” in the recording equipment, which prevented the first telephone conversation from being recorded, affected subsequent recordings. However, the agent in charge of recording the conversations testified the first telephone conversation was not recorded because the “suction cup to the recorder [was accidentally unplugged].” Hence defendant’s contention that there was a mechanical flaw in the recording equipment which may have affected subsequent recordings is not supported by the record. Consequently, defendant has failed to show how the tapes in question could be subject to varying expert opinion- and the trial court did not err in denying his motion for an independent expert examination of the tape recordings. See Sims v. State, 251 Ga. 877 (4c) (311 SE2d 161) (1984).

2. Defendant next contends he was denied his right to a fair trial because of the untimely disclosure of the tape recordings and the file of GBI Agent Robinson, one of the investigating officers who testified at trial. “ ‘(T)he [defendant] has the burden of showing he was denied material exculpatory information such that he was denied a fair trial.’ [Cit.]” Williams v. State, 251 Ga. 749, 789 (312 SE2d 40) (1983). Here the complained of materials were provided to defendant at trial; however, defendant has not shown that these materials contained information which was, in fact, exculpatory. See Williams v. State, 178 Ga. App. 581, 586 (3) (344 SE2d 247) (1986). Moreover, because defendant was provided with the tapes and file at trial, “the appropriate standard to be applied here is whether the disclosure came so late as to prevent the defendant from receiving a fair trial.” (Citations and punctuation omitted.) Parks v. State, 254 Ga. 403, 407 (3) (330 SE2d 686) (1985). Except for the vague assertion that he could have presented a better defense, defendant has failed to show any prejudice resulting from the failure to disclose the materials prior to trial. Consequently, this enumeration affords no basis for reversal. See Masters v. State, 186 Ga. App. 795 (5) (368 SE2d 557) (1988); Bentley v. State, 178 Ga. App. 90 (342 SE2d 25) (1986).

3. Defendant argues the trial court erred in denying his motion to suppress on the basis that he had no standing to challenge the search of the van in which the contraband was found. The van in question was leased to defendant, but at the time of the search he had relinquished actual possession and control of the van to a third party (Mejia), who consented to the search. “Where the owner [or lessee] of an automobile relinquishes actual possession to a third party, the owner [or lessee] thereby abandons any expectation of privacy in the automobile, and he therefore lacks standing to contest the legality of the search and seizure of the vehicle. See United States v. Nunn, 525 F2d 958, 959 (5th Cir. 1976). See also United States v. Dyar, 574 F2d 1385, 1390 (6) (5th Cir. 1978), cert. denied, 439 U. S. 982 (99 SC 570, 58 LE2d 653) (1978). Accordingly, the trial court correctly denied [defendant’s] motion to suppress.” Prothro v. State, 186 Ga. App. 836, 838 (3) (368 SE2d 793) (1988).

4. In three related enumerations of error, defendant contends the unresponsive answer of Agent Robinson to a question posed by defense counsel on cross-examination concerning whether she “assumed [defendant] was a drug trafficker” improperly placed defendant’s character in issue, and hence the trial court should have granted his motion for mistrial. First we note that defendant, who argued at trial that he was “prejudiced” by the witness’ response, did not object to the testimony on the basis now asserted on appeal. “It is well settled that a reason urged by enumeration of error on appeal which is different from that urged below will not be considered for the first time on appeal.” (Citations and punctuation omitted.) Iglesias v. State, 191 Ga. App. 403, 404 (381 SE2d 604) (1989). Moreover the trial transcript further shows the response, which was elicited in response to defense counsel’s questioning of the witness, was the result of a thorough and argumentative cross-examination. Lastly, the record also shows the trial court granted defendant’s request that limiting instructions be given to the jury. We hold, therefore, that defendant has no basis to challenge the admission of the complained of testimony. See Buxton v. State, 253 Ga. 137 (3) (317 SE2d 538) (1984); Kilgore v. State, 251 Ga. 291, 295 (2a) (305 SE2d 82) (1983).

5. Contrary to defendant’s contention on appeal, the trial court’s instruction to the jury on the law of conspiracy was proper. See, e.g., Spencer v. State, 180 Ga. App. 498 (4) (349 SE2d 513) (1986).

6. Defendant posits that the trial court erred in replaying one but not all of the tape recordings of the telephone conversations between defendant and Mejia upon specific request by the jury. The transcript shows, however, that at trial defendant objected to the jury’s request for a portion of the tape to be replayed, and the trial court agreed that the entire tape should be played. Defendant did not raise the objection now asserted on appeal, to wit, that all of the tapes should be replayed to the jury, and thus cannot be heard to complain on this basis. See, e.g., Shortes v. State, 193 Ga. App. 859, 860 (2) (389 SE2d 354) (1989).

7. Defendant enumerates as error the fact that he was tried on an indictment which referred to his use of an alias. In support of this enumeration defendant argues that because the only evidence at trial showing the use of an alias was inadmissible hearsay, the alias should have been expunged from the indictment. Again, however, the record reflects that defendant did not move to quash the indictment or move that the alias be expunged from the indictment as he now argues on appeal. Consequently, this enumeration affords no basis for reversal.

Decided December 3, 1990.

T. Joseph Campbell, for appellant.

Darrell E. Wilson, District Attorney, M. Suzanne Hayes, Sharon A. Moyer, Assistant District Attorneys, for appellee.

8. Contrary to defendant’s final contention on appeal, we hold that the evidence adduced at trial was sufficient to enable a rational trier of fact to find defendant guilty beyond a reasonable doubt of trafficking in cocaine. See Jackson v. State, 258 Ga. 810 (1) (375 SE2d 454) (1989); Ragin v. State, 192 Ga. App. 686 (1) (385 SE2d 770) (1989).

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.


text:
    A90A1344.
    GODWIN v. JOHNSON.
    (399 SE2d 581)
   Pope, Judge.

The issue presented concerns ownership rights to certain savings certificates and joint checking account funds totaling in excess of $230,000. On November 27, 1985, Stephen Pennington Bond (decedent) executed his Last Will and Testament naming as his primary beneficiaries his daughter, appellant herein, and appellee and his brother, nephews of the deceased’s wife. Other than specific bequests, the terms of the will provided that one-half of the decedent’s property be conveyed to his daughter and the remaining one-half be divided between the two nephews. The will also named appellee as executor of the estate.

The decedent died on May 14, 1987. The will was subsequently probated in solemn form and appellee qualified as executor of the estate. On October 26, 1987, appellee mailed to appellant two certificates of deposit totaling $20,000 on which she was listed as joint owner. On March 25,1988, appellee sent a letter, with attachments, to his brother and appellant providing an accounting of the estate. Appellee noted in the letter that “those various accounts or certificates of deposit which were owned by [decedent] and some other individual as joint tenants with a right of survivorship” were not included as part of the estate. Attached to the letter was a list of the joint accounts referred to in the letter, including the funds at issue here which were listed as jointly owned by appellee and the decedent.

Appellant subsequently filed her petition seeking, inter alia, to have all bank accounts held jointly by the deceased and appellee declared property of the estate and distributed in accordance with the terms of his will, the revocation of letters testamentary granting authority to appellee to act as executor, the appointment of a replacement executor and reasonable attorney fees. Both parties filed motions for partial summary judgment. This appeal is from the order of the probate court granting appellee’s motion for summary judgment and denying appellant’s motion for partial summary judgment. Held:

1. Appellant first contends that the trial court erred in granting summary judgment to appellee on the issue of ownership of the joint accounts. We agree and reverse.

OCGA § 7-1-813 (a) provides, in pertinent part, that “[s]ums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent, unless there is clear and convincing evidence of a different intention at the time the account is created.” (Emphasis supplied.)

As to the decedent’s intent in creating the joint accounts in this case, the record shows the following: Prior to becoming disabled in 1983 decedent’s wife successfully handled all the financial affairs of the family. According to the testimony of several of the decedent’s closest friends, the decedent was concerned following his wife’s death in 1985 that someone have access to his funds if he became unable to manage his own affairs. Evidence was presented that with this concern in mind the decedent gave both the appellee, who is a CPA, and appellee’s brother his power of attorney. According to the testimony of several witnesses, the decedent also added appellee’s name to his checking account; again, however, the sole purpose of adding appellee’s name was to allow someone access to the funds in case the decedent became ill, and the appellee did not enjoy unlimited access to the funds while the decedent was alive. However, although the decedent mentioned the joint checking account to several friends, he apparently never mentioned the joint savings certificates.

Appellant also presented testimony from several witnesses concerning the decedent’s desire that she inherit half of his estate and that appellee and his brother inherit the other half. According to the witnesses, the decedent never expressed his desire or intent that appellee receive a larger portion of his estate than that provided for in his will. The witnesses knew of no special relationship between the decedent and appellee and stated that the decedent had a good relationship with appellee, appellee’s brother and the appellant. One of the witnesses testified that less than a month before the decedent died he told him that he had given several of his nephews’ children certain bonds or savings certificates and that he had given appellant two “bonds.” However, the decedent apparently never indicated that he had given appellee any bonds or savings certificates and none of his friends or family was aware of these certificates prior to his death.

Appellee presented evidence that the decedent had been the executor under his wife’s will and that in addition to the bequests under the will, decedent received approximately $500,000 from checking accounts and savings certificates which had been owned jointly by the decedent and his wife. Moreover, acting as executor of his wife’s estate, the decedent had transferred certain other funds to those named as joint owners with his wife on certain accounts and these funds also passed outside the estate. Evidence was also presented that appellee had informed the decedent following his wife’s death that any certificates of deposit which he had owned jointly with his wife should remain in his name and that he should transfer certain stock certificates to his name so as to allow the assets to be distributed as specified in his will at the time of his death. Appellee also presented affidavits from various bank employees who stated that the decedent seemed cognizant of the survivorship feature of the joint accounts and that decedent made no statements which indicated a contrary intent when opening the accounts. By way of deposition, appellee testified that he was not surprised to receive such a large share of his uncle’s estate, because his uncle had expressed to him that he thought of him as his son.

We find that under these facts a material issue exists regarding the decedent’s intent in establishing the joint accounts in controversy here. “[T]he issue of [the decedent’s] intent regarding the joint . . . accounts . . . would appear to require a thorough weighing of the conflicting evidence by the trier of fact. . . . [C]ases which primarily require factual determination are not usually amenable to summary adjudication. It is only ‘where the facts conclusively show by plain, palpable and undisputed evidence’ that one or the other party is entitled to judgment that the case ‘properly may be resolved as a matter of law through the vehicle of summary judgment.’ Fort v. Boone, 166 Ga. App. 290, 292 (304 SE2d 465) (1983).” Banks v. Todd, 184 Ga. App. 681, 684 (362 SE2d 410) (1987). See also Turner v. Mikell, 195 Ga. App. 766 (2) (395 SE2d 20) (1990); James v. Elder, 186 Ga. App. 810 (368 SE2d 570) (1988); cf. Nowlin v. Parker, 183 Ga. App. 137 (358 SE2d 258) (1987). Consequently, because there are issues here which must be resolved by a jury, we find the probate court erred in granting appellee’s motion for partial summary judgment.

2. We find no merit to appellant’s contention that appellee should be removed as executor of the estate. We find that the record is devoid of evidence that appellee has mismanaged or misappropriated the assets of the estate, only that he has claimed ownership of funds to which he is presumptively entitled pursuant to OCGA § 7-1-813 (a). Although appellant also argues that certain fees or expenses requested by appellee were excessive, she also stated in her deposition that she did not have the knowledge or experience to determine whether the executor’s expenses were reasonable for the services rendered. There being no other evidence of record as to this question, we find no merit to appellant’s arguments on this issue.

Decided December 3, 1990.

Kennedy, Lewis, Smart & Brannon, J. Curtis Lewis III, for appellant.

Oliver, Maner & Gray, James P. Gerard, James L. Pannell, Malberry Smith, Jr., for appellee.

3. Because of our holding in Division 1, supra, it is unnecessary for us to consider appellant’s remaining enumerations of error. Thus the trial court’s judgment, insofar as it denied appellant’s motion for partial summary judgment, is affirmed.

Judgment reversed in part and affirmed in part.

Deen, P. J., and Beasley, J., concur.


text:
    A90A0904.
    POPE v. THE STATE.
    (399 SE2d 552)
   McMurray, Presiding Judge.

Defendant Pope appeals his conviction of the offenses of incest, aggravated sodomy, and child molestation. Held:

1. Defendant’s first enumeration of error raises the sufficiency of the evidence. The State’s evidence shows that while defendant was married to the victim’s mother and prior to the victim reaching 14 years of age, the defendant touched the victim’s breasts and vagina, performed oral sodomy upon the victim, required the victim to touch his penis and to perform acts of oral sodomy, and had sexual intercourse with the victim. The transcript reveals ample evidence from which any rational trier of fact could reasonably have found beyond a reasonable doubt that defendant was guilty of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. In preparation for trial, the State prepared a transcript of defendant’s tape-recorded conversation with a detective with the sheriff’s department. At trial, the transcript was read to the jury during the detective’s testimony and was the subject of significant cross-examination of the detective. Over timely objection, the trial court permitted a copy of the transcript to go out with the jury for consideration during its deliberations. Sending the transcript out with the jury was error. Walker v. State, 215 Ga. 128, 129 (2) (109 SE2d 748); Royals v. State, 208 Ga. 78, 79 (2) (65 SE2d 158); Harris v. State, 168 Ga. App. 458, 460 (5), 461 (309 SE2d 431). Compare Stidem v. State, 246 Ga. 637, 639 (3) (272 SE2d 338).

Decided November 21, 1990

Rehearing denied December 4, 1990

Alden W. Snead, J. M. Raffauf, for appellant.

Frank C. Winn, District Attorney, J. David McDade, Assistant District Attorney, for appellee.

We reject the State’s contention that sending the transcript out with the jury was proper under the ruling in Proctor v. State, 235 Ga. 720, 724 (221 SE2d 556). While the transcript contained certain statements of defendant concerning claims of mental problems and mitigating factors, and included a denial of the offense of incest, the transcript cannot reasonably be viewed as advantageous to defendant since it contains admissions of two of the three offenses charged.

3. Defendant contends that he was improperly denied access to certain confidential DFACS (Department of Family & Children’s Services) and juvenile court records, which were contained in the prosecutor’s files, and that the trial court failed to conduct a proper in camera inspection for exculpatory material. However, the record shows that in camera inspections were conducted of the records to which defendant refers and certain information was released to him. The record contains no showing of any abuse of the trial court’s discretion under OCGA § 49-5-41 (a) (2) nor is defendant’s burden to establish a Brady (Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215)) violation satisfied. Cromer v. State, 253 Ga. 352, 358, (6) (320 SE2d 751); Horne v. State, 192 Ga. App. 528, 531 (385 SE2d 704); Benford v. State, 189 Ga. App. 761, 763 (377 SE2d 530); Davidson v. State, 183 Ga. App. 557, 559 (359 SE2d 372). These contentions are without merit.

4. There was no error in the trial court’s denial of defendant’s motion for a psychiatric examination of the victim by a qualified expert employed by defendant. Rhodes v. State, 193 Ga. App. 28, 29 (2) (386 SE2d 857).

5. Defendant’s remaining enumerations of error will not be addressed individually since they raise issues which either lack a factual basis in the record, are rendered moot by reversal of the judgment, or are unlikely to recur upon the retrial of the case.

Judgment reversed.

Car ley, C. J., and Sognier, J., concur.


author: Beasley, Judge. Deen, Presiding Judge,

text:
    A90A0960.
    GOMEZ et al. v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY et al.
    (399 SE2d 536)
   Beasley, Judge.

Foster and Mark Gomez own four parcels of improved property each of which has a duplex on it. The rear of the properties abuts a railroad right-of-way owned by Southern Railway Company. Prior to 1985, the railway operated two lines of trains on the tracks, which were level with the Gomez properties. In 1985, MARTA’s north line was constructed within the boundaries of the right-of-way. The railway, however, changed the configuration of the tracks. Two new tracks were added and an earthen embankment was added immediately adjacent to the rear of the Gomez properties, and the new MARTA tracks and two railway tracks were placed in it. As a result, the tracks are now 50 feet closer to the Gomez property than before.

Mark Gomez lives in one of the duplex units and contends that the installation of the two new tracks has significantly altered the quality of life for himself and for tenants residing in the duplexes. There are extreme vibrations resembling earth tremors which cause doors and dishes to rattle, interfere with sleep and with television reception, and cause the floors to shake. The vibrations are especially bad at night. Gomez claims physical damage to property caused by falling trees and erosion from the embankment, which caused pools of mud to form on the property. As a result of the increased noise and vibrations, Gomez claims tenants have vacated the apartments.

The Gomez brothers brought an inverse condemnation action after MARTA dismissed its condemnation complaint. MARTA’s motion for summary judgment was denied, but a directed verdict was granted on the same grounds raised in the motion for summary judgment. Issues of property damage were settled.

Appellants assert as error the trial court’s determination that private property owners have no right, as a matter of law, to just and adequate compensation for noise and vibration damages resulting from increased use of preexisting railroad right-of-way.

In MARTA v. Trussell, 247 Ga. 148 (273 SE2d 859) (1981), the Supreme Court ruled that a noise and vibration easement could not be acquired by eminent domain because it would imply a right to merely buy a right to damage the servient property. The eminent domain statute, it recognized, only allows the acquisition of property in fee simple or lesser interest. Id. at 151. The Court suggested that if, after construction of the improvement which prompted the condemnation occurs, there is noise and vibration which constitutes a taking or damage of the use and enjoyment of the neighboring private property, “those affected can bring a damage suit in inverse condemnation as provided in the constitution, wherein they will be compensated for the damages caused by the public body.” Ibid.

The trial court laid great store by the proposition that the Gomez brothers could not recover because the original exercise of eminent domain by which Southern Railway had acquired the right-of-way would have taken into account and paid for these potential inverse condemnation damages. But they could not have been part of the taking, as explained in MARTA, supra. Besides, they would have been highly speculative at the time. It is unrealistic to expect that the property owner could have anticipated that the intended railroad would be moved 50 feet closer and 30 feet up onto a future-constructed embankment and would cause a measurable amount of noise and vibration affecting use, enjoyment, and property value. The Court pointed this out in MARTA, supra at 152.

The Supreme Court álso recognized the right to file an inverse condemnation for “increased and uncompensated-for damages.” Id. at 152. Even if the Gomez brothers had owned the adjacent property at the time the right-of-way was originally condemned for Southern Railway, they would not then have had the right to recover for inverse condemnation as now claimed, as it would not have then existed. There would not have been a diminution in market value or in use and enjoyment of the property because there would not then have been the interference now shown. See MARTA v. Datry, 235 Ga. 568, 577 (220 SE2d 905) (1975).

Plaintiffs did not have to show a physical invasion damaging to property, “only an unlawful interference with [their] right to enjoy [their] possession.” Duffield v. DeKalb County, 242 Ga. 432, 434 (2) (249 SE2d 235) (1978). As in Duffield, it is the “increased” use of the right-of-way, here by additional and closer and higher tracks, and there is some evidence to show this has caused the interference with the right of use and enjoyment (and perhaps disposition). This would not have existed in the original taking, because it was not even contemplated.

A directed verdict was not authorized and the case should have proceeded to the jury.

Judgment reversed.

McMurray, P. J., Banke, P. J., Birdsong, Pope and Cooper, JJ., concur. Carley, C. J., Deen, P. J., and Sognier, J., dissent.

Deen, Presiding Judge,

dissenting.

I must respectfully dissent. Appellants rely upon Wright v. MARTA, 248 Ga. 372 (283 SE2d 466) (1981), to support their argument that they are entitled to just and adequate compensation for noise and vibration damages resulting from increased use of the preexisting railroad right-of-way. Wright was a condemnation case, and at issue was the proper measure of consequential damages. In this case, the condemnation occurred at some unknown date in the past, and the landowner was compensated at that time. Property dedicated to a public use may be put to all customary uses within the definition of that public use. MARTA v. Datry, 235 Ga. 568 (220 SE2d 905) (1975). Railroads are not liable for noise and vibrations produced by normal, ordinary, and necessary railroad operation. Georgia R. & Banking Co. v. Maddox, 116 Ga. 64 (42 SE 315) (1902). Appellants make no claim that the MARTA and railway operations are not normal, ordinary, and necessary. Relocation of a track, done under lawful authority, does not constitute a nuisance. Southern R. Co. v. Leonard, 58 Ga. App. 574 (199 SE 433) (1938). The tracks in question were relocated within the existing right-of-way. I find no error and would affirm.

Decided November 15, 1990

Rehearing denied December 4, 1990

McKenney & Froelich, William J. McKenney, David M. Kupsky, for appellants.

Pursley, Howell, Lowery & Meeks, Charles N. Pursley, Jr., Neely & Player, John T. Ruff, for appellees.

I am authorized to state that Chief Judge Carley and Judge Sognier join in this dissent.


author: Birdsong, Judge.

text:
    A90A1070.
    DUKE v. WILLIAMS et al.
    (399 SE2d 544)
   Birdsong, Judge.

Fraser M. Duke appeals from a judgment, based upon a jury verdict, awarding damages of $213,200 to Joseph B. Williams, Aubon Higgins, and Williams & Higgins and Associates, d/b/a Williams-Higgins & Company (collectively “Williams & Higgins”) on their claims against Duke for breach of consulting contract. The error enumerated is that the trial court erred by ruling the non-refundable, non-cancellable retainer or minimum fee of $213,200 was not a penalty. Specifically, Duke argues that the trial court’s denial of his motions for a directed verdict and for j.n.o.v. on that ground should be reversed. Held:

1. We note at the outset that the trial court erred by submitting to the jury the issue of whether the contract provided for liquidated damages or a penalty. See Liberty Life Ins. Co. v. Thomas B. Hartley Constr. Co., 258 Ga. 808, 809 (375 SE2d 222). The trial court was required to decide this issue as a matter of law, and unless after applying the usual rules for contract construction an ambiguity remains (see, e.g., Lineberger v. Williams, 195 Ga. App. 186, 190 (393 SE2d 23)) to submit to the jury only those issues which should be decided by the finder of fact. Since no objection was made to the procedure in this case, however, we will not consider it. Further, since the contract provision in question, by definition, is not one for liquidated damages, there was no prejudicial error.

2. The transcript shows that Williams & Higgins were employed by Duke when the parties discussed Williams & Higgins becoming independent consultants under contract to Duke. An earlier proposal was rejected because Duke found it unreasonable and excessively high, but on August 8, 1988, the parties signed the consulting agreement in question.

On August 25, 1988, however, Duke notified Williams & Higgins’ attorney that he no longer wanted their services as consultants. On September 20, 1988, Williams & Higgins filed suit for damages arising from the breach of the retainer agreement. Their complaint alleged claims for breach of contract, fraud in the inducement, and quantum meruit.

After the close of the evidence and Duke’s motion for a directed verdict was denied, the jury was charged, without objection, on the issues in the case and the jury was instructed to return separate verdicts on each of the plaintiff’s claims, i.e., general damages, liquidated damages, attorney fees and expenses of litigation. Instead, however, the jury returned a verdict for Williams & Higgins as follows: “We, the jury, find in favor of the plaintiff $213,200. We find no other fees. . . .” No objection was made to the form of the verdict.

The pertinent portions of the Consulting Agreement are as follows: “2. Term. [The term of the contract is for five years beginning August 1, 1988,] unless terminated earlier pursuant to the terms of this Agreement. However, in no event shall this agreement be terminated prior to August 1, 1990; unless Consultant’s full Minimum Fee as set forth in Paragraph 4 has been paid. ... 4. Compensation. Consultant shall be entitled to compensation totaling $572,000, payable weekly beginning August 1, 1988 and ending July 31, 1993 on the following schedule: [$2,000 per week for the first year and increasing by $100 per week annually to $2,400 in the last year of the contract.]

. . . Consultant waives a non-refundable retainer in lieu of client guaranteeing the payment of weekly fees as non-cancelable for two years from the date of this Agreement or a minimum fee of $213,200 regardless of what companies client owns or operates to client and regardless of the minimum amount of time spent by consultant to perform its services. Once one or more of the consulting individuals terminates their employee relationship with any company owned by client then the two year minimum fee shall be deemed fully earned and payable. ... 16. Assignment. . . . [Duke] shall.be liable to pay [Williams & Higgins’] fee for the minimum fee and for services to his companies once services have been rendered prior to a six month termination date.”

Although Duke argues that these provisions establish a penalty for terminating the contract within the first two years, these provisions do not call for either a penalty or liquidated damages. “If the parties agree in their contract what the damages for a breach shall be, they are said to be liquidated and, unless the agreement violates some principle of law, the parties are bound thereby.” OCGA § 13-6-7. “A liquidated damages analysis is inapplicable to the case at hand since the . . . agreement does not purport to be a stipulated sum for damages for a breach. ... If not liquidated damages, then what? As a reading of the contract suggests, the disputed provision simply describes the price to be paid for [Williams & Higgins’] services.” (Citation and punctuation omitted.) Royal Crown Cos. v. McMahon, 183 Ga. App. 543, 545 (359 SE2d 379).

As the provisions in the contract at hand do not in any fashion connect Duke’s obligation to pay the minimum fee with any breach of the contract, they cannot be a liquidated damages provision. Therefore, the tripartite test set forth in Southeastern Land Fund v. Real Estate World, 237 Ga. 227, 230 (227 SE2d 340), has no application to this case.

“In determining whether the trial court erred by denying [Duke’s] motion for a directed verdict and motion for judgment n.o.v., this court must view and resolve the evidence and any doubt or ambiguity in favor of the verdict. A directed verdict and judgment n.o.v. [are] not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.” (Citation, punctuation and emphasis omitted.) Southern Store &c. Co. v. Maddox, 195 Ga. App. 2, 3 (392 SE2d 268). Duke’s motions fail on all counts.

As this was a service contract, it is analogous to an employment contract and the measure of damages was the value of the contract to Williams & Higgins minus amounts paid them by Duke and whatever amounts they could have earned after the contract was terminated. See Autotax v. Data Input Corp., 136 Ga. App. 141, 142 (220 SE2d 456). Further, although Williams & Higgins were obligated to mitigate their loss, the burden was on Duke to prove that with reasonable diligence they could have found other consulting work. See Russell v. Hughes, 244 Ga. 634, 635 (261 SE2d 584); Speer v. Johnson, 52 Ga. App. 636, 639 (184 SE 388). Review of the record shows that Williams & Higgins proved their entitlement under the contract and that Duke simply failed to prove that any set-off was appropriate. Accordingly, the trial court did not err by denying Duke’s motions.

Decided November 19, 1990

Rehearing denied December 4, 1990.

Winship E. Rees, for appellant.

Lipshutz, Greenblatt & King, James V. Zito, for appellees.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.