source: Caselaw Access Project

author: Beasley, Judge. Benham, Judge,

license: Public Domain

text:
    73141.
    FAVORS v. THE STATE.
    (355 SE2d 109)
   Beasley, Judge.

Favors, observed by a MARTA policeman consuming alcohol in a station, was approached by an officer, who noticed a bulge in Favors’ waist band and removed a loaded .38. Favors was convicted of carrying a concealed weapon (OCGA § 16-11-126 (a)), carrying a pistol without a license (OCGA § 16-11-128 (a)), and possession of a firearm by a felon (OCGA § 16-11-131 (b)). As to the first two counts, he complains of the court’s refusal to remove from the face of the indictment two previous convictions for both carrying a concealed weapon and carrying a pistol without a license. As to the third count, he seeks reversal for the court’s refusal to delete three of the four felonies listed on the indictment.

1. In addition to the inclusion of the previous convictions in the indictment itself, Favors received notice before trial that the state intended to use the two prior weapons convictions as either evidence of similar transactions or in aggravation of punishment.

Both OCGA §§ 16-11-126 (b) (2) and 16-11-128 (b) (2) provide that for the second and any subsequent convictions the offender shall be guilty of a felony and receive from one to five years. The first conviction under each is a misdemeanor. Thus, both of these statutes are recidivist statutes, containing directions for the imposition of punishment under specified aggravated circumstances. In order to trigger the aggravation of punishment provisions of OCGA § 16-11-126 (b) (2) and § 16-11-128 (b) (2), it is necessary to show prior convictions. Cf. State v. Hendrixson, 251 Ga. 853, 854 (310 SE2d 526) (1984). It is not sufficient merely to show the commission of previous offenses, the existence of previous charges, or the occurrence of previous events.

Under Georgia’s old two-step felony trial procedure where sentence was imposed by the same jury which decided guilt, it was required that in order for any prior convictions to be considered in aggravation of punishment, they had to be included in the indictment. Riggins v. Stynchcombe, 231 Ga. 589, 592-593 (203 SE2d 208) (1974). Since 1974 when Georgia adopted judge sentencing, OCGA § 17-10-2, it is not required that the prior convictions be included in the indictment but only that the accused receive notice of the state’s intention to seek recidivist punishment and of the identity of the prior convictions. State v. Hendrixson, supra; Anderson v. State, 176 Ga. App. 255, 256 (335 SE2d 487) (1985).

While it is not error for the prior convictions to be set out in the indictment in a recidivist case, Jackson v. State, 158 Ga. App. 702, 703 (5) (282 SE2d 181) (1981), it is error for the jury to be made aware of the prior convictions during the guilt/innocence phase of the trial where there is no other legal basis for the consideration thereof. Riggins, supra at 593; Hendrixson, supra at 854.

Favors was indicted as a recidivist, with the prior weapons convictions set out in the indictment. No evidence of these convictions was presented to the jury, but the allegations concerning them were left unobscured on the indictment for their observation during their deliberations at the end of the guilt/innocence phase of the trial.

Defendant had moved at the commencement of trial that they be removed. Assuming it was error not to cover or take out the allegations of prior convictions, see Williams v. State, 165 Ga. App. 72 (299 SE2d 405) (1983); Camp v. State, 162 Ga. App. 857 (2) (293 SE2d 389) (1982), no reversible harm occurred. Defendant, as a witness in his own behalf, freely admitted that he was carrying the pistol in his pants, covered by his jacket and possibly even his shirt, when arrested, and during the trial there was no contention he had a license. See Jordan v. State, 166 Ga. App. 417, 419 (1) (304 SE2d 522) (1983). He testified that he had bought the gun the day before at a gunshop in Hapeville.

Moreover, the earlier weapons convictions had arisen out of the armed robberies, which were the felonies underlying the third count. Since, as discussed below, the jury legitimately was made aware of those convictions and saw from the indictments that they involved the use of a pistol or pistols (in one case the item stolen was also a pistol), leaving the allegations regarding the weapons convictions on the indictment was of little if any consequence. Even where the prior convictions are actually in evidence, which was not the case here, overwhelming evidence of guilt allows affirmance despite error. See Stone v. State, 253 Ga. 433, 435 (3) (321 SE2d 723) (1984); Bogan v. State, 177 Ga. App. 614, 616 (1) (340 SE2d 256) (1986).

2. Unlike the recidivist statutes, OCGA § 16-11-131 (b) requires that the previous felony conviction be proved to the jury as one of the elements of the crime. Prather v. State, 247 Ga. 789, 790 (2) (279 SE2d 697) (1981); King v. State, 169 Ga. App. 444, 445 (313 SE2d 144) (1984). Therefore, a felony conviction must be alleged in such an indictment and proven beyond a reasonable doubt. Prather, supra. Favors complains that not one, but four previous convictions of six felonies were alleged and proven against him. Although listing a defendant’s entire record on the facts of an indictment has been discouraged, see Biggers v. State, 162 Ga. App. 163, 165 (2) (290 SE2d 159) (1982), the state is not limited to alleging and proving only one prior felony conviction when proof of a felony conviction is an element of the crime charged. Head v. State, 170 Ga. App. 324, 326 (3) (316 SE2d 791) (1984), rev’d on other grounds, 253 Ga. 429 (322 SE2d 228) (1984); Sheffield v. State, 163 Ga. App. 533 (295 SE2d 336) (1982); Grant v. State, 163 Ga. App. 775 (296 SE2d 110) (1982). Refusal to limit the allegations and proof to one prior felony conviction was not reversible error.

Decided March 17, 1987.

J. Douglas Willix, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Benjamin H. Oehlert III, William W. Fincher, Assistant District Attorneys, for appellee.

Judgment affirmed.

Birdsong, C. J., Deen, P. J., McMurray, P. J., Banke, P. J., Carley, Sognier and Pope, JJ., concur. Benham, J., dissents.

Benham, Judge,

dissenting.

I respectfully dissent to Division 1 of the majority opinion. The majority recognizes that error occurred when the jury, during the guilt/innocence phase of appellant’s trial, was made aware of appellant’s prior convictions for carrying a concealed weapon and carrying a pistol without a license. The majority, however, maintains that the trial court’s refusal to honor appellant’s request to mask the indictment was harmless error (1) because appellant testified he was carrying the gun in a concealed manner and did not present evidence that he had a license to carry the weapon, and (2) because the prior weapons charges were related to the felonies proved under Count 3 of the indictment, alleging appellant was a convicted felon in possession of a firearm. I disagree with the second rationale for the simple reason that appellant’s prior weapons charges were not listed on the indictment as elements of the offense of possession of a firearm by a convicted felon. Compare Prather v. State, 247 Ga. 789 (2) (279 SE2d 697) (1981). Additionally, I cannot agree with the rationale employed by the majority in its first basis of harmless error. “Because ... it is error to disclose to the jury prior convictions before a determination of guilt, . . . the only purpose for their inclusion in the indictment is to give to the accused unmistakable advance warning that the prior convictions will be used against him at sentencing.” State v. Hendrixson, 251 Ga. 853, 854 (310 SE2d 526) (1984). (Emphasis supplied.) Prior convictions not alleged in the indictment as the underlying felonies in a charge alleging possession of a firearm by a convicted felon must in some way be concealed from the jury when requested by counsel, and failure to do so is reversible error in the absence of an instruction to the jury that they are not to consider the prior convictions. Evans v. State, 253 Ga. 331, 333 (320 SE2d 168) (1984). Accordingly, I would reverse appellant’s convictions for carrying a concealed weapon and for carrying a pistol without a license.


author: McMurray, Presiding Judge.

text:
    73146.
    ALLIANCE AUTO ACCEPTANCE LEASE, INC. v. CHUCK CLANCY FORD, INC.
    (355 SE2d 112)
   McMurray, Presiding Judge.

Plaintiff is a corporation in the business of commercial leasing of motor vehicles. Defendant is a corporation in the business of selling motor vehicles.

Plaintiff alleges that: It placed an order for the purchase of a Ford Tempo automobile from defendant to be leased by plaintiff to a customer. The total purchase price included, in addition to the factory installed options set forth on the window sticker, certain dealer installed items. Plaintiff paid to defendant the agreed purchase price and leased the vehicle to its customer. Plaintiff assigned the interest in the lease to Dominion Bank. The agreement between plaintiff and Dominion Bank provides that in the event said Bank should discover that any lease contract purchased by it is for any reason inaccurate or misrepresents the true facts of the transaction, then plaintiff upon notification by Dominion Bank is required to repurchase such defective lease at the full value of the time payment price thereof.

Plaintiff was notified by Dominion Bank that upon investigation it had determined that the dealer-installed options, which were set forth in the purchase contract of the subject vehicle, had never been installed. Upon demand, plaintiff was required to repurchase the lease from Dominion Bank. Plaintiff filed this action seeking damages for breach of contract, damage to its reputation, and fraud.

Defendant moved for summary judgment arguing that the parties were in pari delicto, that the conduct of plaintiff created an estoppel in pais that prevents plaintiff from asserting its rights under the written contract, and that one or more of the essential elements of an action for fraud and deceit are missing. Defendant’s motion for summary judgment was granted and plaintiff appeals. Held:

In support of its motion for summary judgment defendant submitted the deposition of Hudson. This was the only evidence presented in support of or in opposition to defendant’s motion. Hudson testified that he is a former employee of defendant who left that employment to become a shareholder, officer and employee of plaintiff. The transaction at issue involved “the first customer that we did for a dealership after we went in business.” There was a problem in that the customer owed substantially more on his trade-in vehicle than it was worth. In order to make the deal possible by providing a profit for both the dealer (defendant) and the leasing company (plaintiff), Hudson acting (on behalf of plaintiff) together with a salesman employed by defendant (and with the knowledge of the customer) fabricated the documents which indicated that the dealer installed options had been placed on the new automobile. Hudson instructed defendant’s salesman in regard to filling out the invoices. “Well, I wouldn’t say I told him exactly what to put on there, but I instructed him what the total amount of money to come up with in order for us to put the deal together.” Both of Hudson’s fellow officers with plaintiff knew that the equipment represented by the fabricated invoices (which invoices were presented to Dominion Bank as genuine) had not actually been placed on the automobile.

Decided March 17, 1987.

Douglas N. Smith, Orville L. Chapin, for appellant.

W. Dan Greer, for appellee.

Plaintiff contends that a genuine issue of material fact is created by its “traverse and denial” of Hudson’s deposition testimony. In this regard, plaintiff references it “Response in Opposition to Defendant’s Motion for Summary Judgment” and brief in support thereof. Also, there is a verification of the “Response.” Nonetheless, however liberally construed the documents considered together lack any probative value because based in part upon “information and belief” (Gann v. Mills, 124 Ga. App. 238 (183 SE2d 523)) and because they lack any showing of competence to testify. Watkins Prods. v. England, 123 Ga. App. 179, 180 (180 SE2d 265); Crawford v. McDonald, 125 Ga. App. 289 (187 SE2d 542).

Plaintiff also contends the trial court erred in refusing to consider certain evidence, described as a signed and notarized statement by Hudson, which plaintiff’s counsel tendered at the hearing on the motion for summary judgment. Defense counsel objected on the grounds that he had not been served at least one day prior to the hearing. It was within the discretion of the superior court to exclude this evidence. See OCGA § 9-11-6 (d). Brown v. Rowe, 178 Ga. App. 575, 576 (1) (344 SE2d 245).

Contrary to plaintiff’s assertion there is no issue of credibility created in the record in the case sub judice. Defendant’s undisputed evidence clearly establishes its right to a judgment as a matter of law. See OCGA § 13-8-1; Adams v. Barrett, 5 Ga. 404 (4); McAndrew v. Taylor, 15 Ga. App. 555, 557 (83 SE 967); White v. Crew, 16 Ga. 416 (1); Rehak v. Mathis, 239 Ga. 541, 543 (238 SE2d 81). “Since there was no evidence presented by [plaintiff] which would create a genuine issue on any material fact, the trial court did not err in granting [defendant] a summary judgment. OCGA § 9-11-56 (c).” Houser v. Tilden Fin. Corp., 166 Ga. App. 710, 711 (305 SE2d 440).

Judgment affirmed.

Carley and Pope, JJ., concur.


text:
    73352, 73353.
    MELTON v. J. M. KENITH COMPANY, INC. et al.; and vice versa.
    (355 SE2d 115)
   McMurray, Presiding Judge.

On November 1, 1980, J. M. Kenith Company, Inc. and Joseph M. Kenith (plaintiffs) entered into an agreement entitled “Lease Agreement” with Allied Mechanical Services, Inc. (corporate lessee) and Ralph D. Melton (guarantor). Defendant Ralph D. Melton is the president and sole stockholder of corporate lessee and executed the lease agreement as guarantor. The agreement provided for rental of “part of the premises located in the building known as 2578 Old Rockbridge Road, Norcross, Georgia 30071, comprising approximately 9,464 square feet, together with all of the machinery, equipment and fixtures owned by [plaintiffs] ... as set forth in the annexed Schedule ‘A’, for a term to commence November 15, 1980 and to end on October 31, 1985, at an annual rental of $48,000.00 per year, payable in monthly installments of $4,000.00 in advance on the first business day of each month. Of the monthly rent of $4,000.00 the sum of $2,500.00 [i]s payment of the rent for the use of the machinery and equipment and shall be made payable to the J. M. Kenith Company, Inc. which owns said equipment. The sum of $1,500 is attributable to rent for the premises and should be made payable to Joseph M. Kenith who is the fee owner of the premises.” In addition to rental payments, corporate lessee agreed to pay one-half of the cost of utilities on the leased premises.

After January 1984 neither corporate lessee nor defendant paid any amount for utilities on the leased premises. Further, from June 1984 through the termination date of the lease agreement, neither corporate lessee nor defendant paid monthly rent as prescribed in the lease agreement. Sometime after execution of the lease agreement, corporate lessee filed for bankruptcy. The machinery and equipment described in the lease agreement were seized by the trustee in bankruptcy and sold to satisfy corporate lessee’s debts. Consequently, plaintiffs sued defendant Melton as guarantor, seeking damages as a result of corporate lessee’s breach of the lease agreement. Defendant answered, denying the material allegations of the complaint, and plaintiffs filed a motion for summary judgment accompanied by supporting evidence.

Defendant did not contradict plaintiffs’ evidence regarding breach of the lease agreement, nor did he contradict plaintiffs’ evidence regarding the amount of damages arising as a result of corporate lessee’s breach of the lease agreement. Further, in his deposition, defendant admitted that he executed the lease agreement as guarantor, testifying that it was his responsibility “[t]o pay the lease if [corporate lessee] couldn’t.”

From this evidence, the trial court entered summary judgment in favor of plaintiffs, awarding plaintiffs liquidated damages, attorney fees and pre-judgment interest. All costs were taxed to defendant.

Defendant appeals in Case No. 73352 and plaintiffs cross-appeal in Case No. 73353. Held:

Case Number 73352

1. Plaintiffs have filed a motion to dismiss defendant’s appeal arguing that defendant failed to file a timely notice of appeal.

On April 22,1986, the trial court entered an order granting plaintiffs’ motion for summary judgment. On May 2, 1986, a judgment was entered setting out the amount of damages to be awarded plaintiffs as a result of defendant’s liability as guarantor of the lease agreement. Defendant filed a notice of appeal on May 13, 1986.

Upon plaintiffs’ and defendant’s request, the trial court entered an order on July 22, 1986, making findings of fact and conclusions of law, clarifying its previous order entered April 22, 1986. (This order did not affect the outcome of the previous orders.) Defendant did not file a notice of appeal from this order and plaintiffs contend that his failure to do so precludes his right to appeal.

Contrary to plaintiffs’ contentions the defendant has filed a timely appeal. OCGA § 5-6-38 (a). See Snyder v. Savannah Union Station Co., 85 Ga. App. 851 (1) (70 SE2d 382). Plaintiffs’ motion to dismiss defendant’s appeal is denied.

2. Defendant contends the lease agreement was not a true lease but was a disguised security agreement regulated by the Uniform Commercial Code (UCC). From this contention, defendant argues that he should be totally relieved from liability on his personal guarantee because plaintiffs impaired the collateral of the lease agreement by failing to perfect their lien on the machinery and equipment by filing a financing statement as required by OCGA § 11-9-302.

(a) At the outset, we find this argument not germane to defendant’s liability for rental payments on the leased premises. There is nothing in the lease agreement indicating that the parties intended to enter into a security agreement with regard to the sale of the real property that was the subject of the lease. However, assuming the contrary, a security interest in real property is not subject to the notice requirements of OCGA § 11-9-302. OCGA § 11-9-104 (h). OCGA § 11-9-302 relates only to specific security interests in personal property. See OCGA §§ 11-9-102; 11-9-104. Consequently, since the evidence was undisputed regarding corporate lessee’s breach of the lease on the real property and since defendant did not contradict the amount of damages arising from said breach of contract, the trial court did not err in granting plaintiffs’ motion for summary judgment for corporate lessee’s failure to pay rent on the leased premises and for corporate lessee’s failure to pay its portion of the utility costs on the leased premises.

(b) With regard to defendant’s contention concerning the machinery and equipment, the first issue we must resolve is whether the lease agreement was a true lease or a security instrument regulated by the UCC.

“When the issue ... is the determination of whether a document denominated on its face as a lease ‘is intended as security is to be determined by the facts of each case; however, (a) the inclusion of an option to purchase does not of itself make the lease one intended for security, and (b) an agreement that upon compliance with the terms of the lease, the lessee shall become or has the option to become the owner of the property for no additional consideration or for a nominal consideration does make the lease one intended for security.’ (Emphasis supplied.) OCGA § 11-1-201 (37).” Mann Investment Co. v. Columbia Nitrogen Corp., 173 Ga. App. 77, 78 (1) (325 SE2d 612). “Any determination of whether consideration is ‘nominal’ must be made on a case by case basis. . . .” Mejia v. C & S Bank, 175 Ga. App. 80, 82 (332 SE2d 170).

In the case sub judice, the lease agreement provided that “the Lessee shall have the option to purchase the machinery and equipment ... on October 31, 1985, for the sum of $1.00 . . . Upon the receipt of such payment, [plaintiffs] shall deliver to Lessee a duly executed bill of sale of the machinery and equipment with full warranties, whereupon the lease on the machinery and equipment shall terminate. . . .” Further, there is evidence in the record which indicates the machinery and equipment were worth much more than one dollar upon the termination date of the lease. Under these circumstances, we find the consideration “nominal” as a matter of law, thus indicating that the lease agreement was intended to evidence a security transaction. See Litton Indus. Credit Corp. v. Lunceford, 175 Ga. App. 445, 446 (2) (333 SE2d 373), for other factors considered when determining whether a lease was intended as a security agreement.

(c) Anticipating that the lease agreement may be construed as a security instrument, plaintiffs cite Reeves v. Hunnicutt, 119 Ga. App. 806 (168 SE2d 663), arguing that certain provisions in the lease agreement foreclose defendant’s right to claim his discharge based on an impairment of collateral. We do not agree.

In Reeves v. Hunnicutt, supra, under the terms of a security agreement, the obligor consented in advance to the impairment of collateral thereby extinguishing his right to claim unjustifiable impairment of collateral as a defense to a suit on a promissory note. In the case sub judice, after a thorough examination of the lease agreement, we have found no language which can remotely be construed as a waiver of the defense provided in OCGA § 11-3-606 (1) (b). See First Bank & Trust Co., Palatine v. Post, 10 Ill. App. 3d 127, 132 (293 NE2d 907), and National Acceptance Co. v. Demes, 446 FSupp. 388, 390-391 (3, 4) (1977).

(d) We now turn to the issue of whether defendant is relieved of liability on his personal guaranty based on plaintiffs’ failure to file a financing statement, thereby impairing the collateral of the lease (security agreement) by allowing defendant’s interest in the collateral to become subordinate to the trustee in bankruptcy.

OCGA § 11-3-606 (1) (b) provides that “[t]he holder discharges any party to the instrument to the extent that without such party’s consent the holder . . . [u]njustifiably impairs any collateral for the instrument given by or on behalf of the party or any person against whom he has a right of recourse.”

In the case sub judice, by failing to file a financing statement as is required by OCGA § 11-9-302, plaintiffs “held an unperfected security interest in the collateral which ‘is subordinate to the rights of a person who becomes a lien creditor [ . . . before the security interest is perfected. . . . OCGA § 11-9-301 (1) (b).]’ A ‘lien creditor’ is defined by the Code to include a Trustee in Bankruptcy from the date of the filing of the petition. [OCGA § 11-9-301 (3)].

“By not filing the financing statement in accordance with Article 9 of the Code, [plaintiffs’] security interest was subordinate to that of the Trustee in Bankruptcy. This subordinate position produced an unjustifiable impairment of collateral in that [plaintiffs were] prevented from disposing of the collateral and crediting the amount received to the indebtedness owed ... by [corporate lessee]. [Defendant], as [guarantor] of the corporate indebtedness, would then have only been responsible for any remaining indebtedness, had there been any, instead of the entire unpaid balance [under the equipment lease agreement], as is [plaintiffs’] present theory. [Cits.]” First Bank & Trust Co., Palatine v. Post, 10 Ill. App. 3d 127, 132 (6, 7), supra.

Consequently, based on OCGA § 11-3-606 (1) (b), defendant is absolved of liability as guarantor for “rental payments” for the machinery and equipment. The trial court erred in granting summary judgment in favor of plaintiffs for corporate lessee’s breach of the equipment lease agreement. Compare Leslie Fay, Inc. v. Rich, 478 FSupp. 1109, 1115-1117 (6) (1979). As we held in subsection (a) of this division, the trial court properly granted summary judgment in favor of plaintiffs with regard to defendant’s liability for unpaid rent and utilities. However, since the trial court awarded aggregate damages based on breach of the real property lease and the equipment lease agreement and did not apportion damages with respect to each contract, we remand for a determination as to what portion of damages, and mitigation thereof, is attributable to breach of the real property lease agreement.

Decided March 17, 1987.

B. J. Smith, for appellant.

Anthony M. Zezima, for appellees.

3. Plaintiffs’ motion for frivolous appeal is denied.

Case Number 73353

Plaintiffs cross-appeal from the trial court’s order denying their motion to strike evidence submitted by defendant in opposition to their motion for summary judgment. Plaintiffs challenge the admissibility of evidence submitted by defendant in opposition to their motion for summary judgment. Pretermitting the validity of plaintiffs’ assertions, we find the trial court’s failure to strike the evidence complained of to be harmless, as we based our decision in the main appeal upon evidence which was uncontradicted and admissible in opposition to plaintiffs’ motion for summary judgment.

Judgment affirmed, in part and reversed in part in Case No. 73352, and case remanded with direction that the trial court conduct a proceeding to determine the amount of damages to be awarded to plaintiffs. Judgment affirmed in Case No. 73353. Plaintiffs’ motions to dismiss and for frivolous appeal are denied.

Carley and Pope, JJ., concur.

       This Code section requires a creditor to file a financing statement in order to perfect its security interest in collateral.

       OCGA § 11-9-102 (2) provides that leases intended as security are regulated by Article 9 of the UCC.


author: Carley, Judge.

text:
    73436.
    In the Interest of H. W. A.
    (354 SE2d 884)
   Carley, Judge.

A delinquency petition was filed in the Juvenile Court of Gwinnett County, alleging that the sixteen-year-old appellant had committed the criminal offense of first degree vehicular homicide. Pursuant to OCGA § 15-11-39, the juvenile court conducted a hearing and thereafter determined that the offense should be transferred for prosecution to the Superior Court of Gwinnett County. Appellant appeals from this transferal order. See generally J. T. M. v. State of Ga., 142 Ga. App. 635, 636 (1) (236 SE2d 764) (1977).

1. Appellant asserts that the transferral order is erroneous because the juvenile court failed specifically to find “that there were reasonable grounds to believe that appellant was not amenable to treatment or rehabilitation through available facilities.”

Former Code Ann. § 24A-2501 (a) (3), as originally enacted, did provide that the juvenile court must find “that there are reasonable grounds to believe that . . . (ii) the child is not amenable to treatment or rehabilitation through available facilities. . . .” Ga. L. 1971, pp. 709, 737. In 1978, the statute was amended to delete the “non-amenability” of a juvenile to treatment or rehabilitation as a specific and separate factor entering into the decision to transfer. Ga. L. 1978, p. 1758. The relevant statutory provision now provides only that the juvenile court must, in its discretion, determine whether there are reasonable grounds to believe that: “The interests of the child and the community require that the child be placed under legal restraint and the transfer be made. . . .” OCGA § 15-11-39 (a) (3) (C). However, our Supreme Court has “preserved the requirement that the state carry the burden of showing that the child is not amenable to treatment or rehabilitation. [Cit.] In order for an appellate court to determine if the state has carried this burden, ‘there must be evidence in the record for consideration in the appellate court. The transfer order must realistically reflect why the child is not amenable to treatment as a juvenile. Such decision must be based on evidence and the basis for it clearly reflected in the transfer order itself. . . . [Cit.]’ [Cit.] In the instant case the juvenile court’s finding is too general to sustain, since it does not reflect why the child is not amenable to treatment as a juvenile.” In re E. W., 256 Ga. 681, 682 (353 SE2d 175) (1987).

2. Appellant’s remaining enumeration of error is the following: “The Juvenile Court of Gwinnett County abused its discretion in allowing an alleged accomplice to testify against appellant on direct examination and then allowed the alleged accomplice to selectively plead the Fifth Amendment right against self-incrimination when cross-examined by appellant’s counsel, thereby defeating appellant’s right to cross-examine witnesses against him.”

“The true rule is that when a witness declines to answer on cross-examination certain pertinent questions relevant to a matter testified about by the witness on direct examination, all of the witness’ testimony on the same subject matter should be stricken. [Cits.] [If] [t]he witness’ claim of privilege against self-incrimination . . . [is] with respect to matters sought to be elicited on cross-examination which [are] wholly collateral to and unrelated to [his] testimony in chief, and [is] with respect to separate transactions, in no way shown by [his] testimony to be connected with the crime with which the defendant . . . [is] charged[,]” his direct testimony is unaffected and there is no denial of the right to a thorough and sifting cross-examination. (Emphasis in original.) Smith v. State, 225 Ga. 328, 331 (7) (168 SE2d 587) (1969). The witness in the instant case invoked the Fifth Amendment numerous times during his cross-examination. However, even assuming without deciding that, in any or all such instances, the invocation was as to relevant rather than collateral issues, the right to assert error in failing to strike any portion of the witness’ direct testimony was not preserved. Appellant made “no motion . . . at [any] time to exclude [the witness’] testimony. . . .” Fair v. State, 140 Ga. App. 281, 282 (1) (231 SE2d 1) (1976). There was no error.

Decided March 17, 1987.

William M. Schiller, Paul S. Liston, for appellant.

Thomas C. Lawler III, District Attorney, Daniel J. Porter, Assistant District Attorney, for appellee.

3. The only error in this case is that discussed in Division 1. That error does not mandate a reversal. “To foreclose the possibility of a transfer on the basis of the record currently before us would be to impose arbitrarily a result which may not be in the public’s interest, without vindicating any right of the accused.” L. F. K. v. State of Ga., 173 Ga. App. 770, 772 (328 SE2d 394) (1985). “Accordingly, we hereby vacate the court’s finding that there are reasonable grounds to believe that the appellant should be placed under legal restraint, and remand this case to the juvenile court for the entry of specific findings and conclusions balancing the amenability factor against the interests of the community in processing the child as an adult.” In re E. W., supra at 683. If, in compliance with this direction, the juvenile court should determine that it is necessary to conduct a supplementary evidentiary hearing as to appellant’s amenability to treatment, it may do so. See In re E. W., supra at 683, fn. 3. It is not the intent of this Court to retain jurisdiction over this case. After the entry of the new order, the losing party must, at that time, pursue whatever right to secure further appellate review that might be available.

Judgment vacated and case remanded with direction.

McMurray, P. J., and Pope, J., concur.


author: Benham, Judge.

text:
    73579.
    ALL RISK INSURANCE AGENCY, INC. v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY.
    (355 SE2d 465)
   Benham, Judge.

Appellee Southern Bell Telephone & Telegraph Co. (“Southern Bell”) filed a suit on account against appellee All Risk Insurance Agency, Inc. (“All Risk”), seeking payment of an unpaid bill for advertising in Southern Bell’s Yellow Pages directory. Appellant brings this appeal from the judgment entered on the jury verdict rendered in favor of Southern Bell.

1. Southern Bell presented evidence concerning outstanding bills for appellant’s advertisement in the 1981-82 and 1982-83 directories, and an outstanding bill for an ad placed by Peach State Insurance Company. Appellant claims it was entitled to a directed verdict or judgment notwithstanding the verdict on the Peach State and 1981-82 directory claims. A directed verdict or a j.n.o.v. is appropriate “[i]f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. . .” OCGA § 9-11-50 (a); U. S. Fidelity & Guaranty Co. v. Blankenship &c. Co., 153 Ga. App. 335 (265 SE2d 66) (1980). Appellant maintains there was no evidence presented to hold it responsible for the Peach State ad or the 1981-82 directory ad, and additionally, that Southern Bell’s pleadings did not contain an allegation concerning the 1981-82 ad.

Although Southern Bell’s complaint did not seek recovery of the 1981-82 debt, issues tried by the express or implied consent of the parties shall be treated as if raised in the pleadings. OCGA § 9-11-15 (b). “Implied consent usually is found . . . where evidence is introduced without objection.” McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 514 (250 SE2d 424) (1978). At trial, the Southern Bell employee in charge of Yellow Pages’ credit and collections in Georgia testified as to the total amount due on appellant’s account, and identified the three debts, including the unpaid portion of the 1981-82 directory debt, which comprised the total amount due. Appellant voiced no objection to this testimony. Appellant’s president, Lewis Johnson, acknowledged appellant had placed an ad in the 1981-82 directory and testified that he did not pay the balance (33 days) of the 1981-82 bill because of the problems he was having with Southern Bell over the 1982-83 bill.

The testimony concerning the Peach State ad showed that Peach State had gone out of business and it had been requested that the telephone calls made to its advertised number be referred to All Risk’s telephone number. A Southern Bell employee testified that he informed Mr. Johnson in October 1982 that it was company policy to bill the entity deriving the benefit from an ad, i.e., the number to which the calls were referred, for the ad. The Southern Bell representative advised Mr. Johnson that future charges for the Peach State ad could be avoided by requesting an end to the referral. There was no evidence that, armed with this knowledge, Mr. Johnson sought to end the referral. Mr. Johnson also testified that he, acting on behalf of All Risk, entered into an agreement to purchase Peach State Insurance Company. Mr. Johnson stated that All Risk purchased “a few select accounts” from Peach State. Inasmuch as the evidence and the inferences drawn therefrom were sufficient to withstand appellant’s motions for directed verdict and j.n.o.v., the trial court did not err in denying the motions. McFarland v. Hodge Homebuilders, 168 Ga. App. 733 (3) (309 SE2d 853) (1983).

2. The jury returned a verdict in favor of Southern Bell “in the amount of $10,735.86 plus legal interest.” The trial court ordered entry of a judgment for $10,735.86 plus prejudgment interest at a rate of 18%. Appellant maintains that prejudgment interest cannot be awarded on a quantum meruit recovery, and that interest at a rate of 18% violates the Retail Installment and Home Solicitation Sales Act, OCGA § 10-1-1 et seq.

Interest at a rate of 18% per year on a commercial account is authorized by OCGA § 7-4-16. Contrary to appellant’s assertion, appellant’s account with Southern Bell did not constitute a retail installment transaction under OCGA § 10-1-2 (a) (10). See Gold Kist v. McNair, 166 Ga. App. 66 (1) (303 SE2d 290) (1983). Furthermore, there is no evidence that the jury returned a verdict based upon a theory of quantum meruit. Although the amount of damages awarded Southern Bell did not equal the amount appellee sought under its contractual theory of recovery, we will not speculate as to how the jury came to its decision. See Barlow v. Veber, 169 Ga. App. 65 (3) (311 SE2d 501) (1983). We do note, however, that credence is given to the conclusion that the jury found for appellee on a contractual basis by the facts that the jury was told it could award legal interest for breach of contract and it awarded legal interest, and a general jury verdict form was used without objection. See Skelton v. Skelton, 251 Ga. 631 (6) (308 SE2d 838) (1983); Steinemann v. Vaughn & Co., 169 Ga. App. 573, 579 (313 SE2d 701) (1984).

3. Appellant next argues that the trial court erred by including in its charge an instruction to disregard the testimony of a witness who had wilfully and knowingly sworn falsely. See OCGA § 24-9-85 (b). Appellee maintains that conflicts in the testimony of Mr. Johnson and various Southern Bell employees required the jury to consider whether a witness was intentionally testifying falsely.

“In order to make [OCGA § 24-9-85 (b)] applicable, ‘it must appear, among other things, that the witness admits, on the trial, that he wilfully and knowingly swore falsely, or the testimony must be such as to render the purpose to falsify manifest.’ [Cit.] ‘Under this rule ... it has several times been held, that if a witness swears at the trial to a certain state of facts in a material matter, and he has previously sworn to the contrary in the same case, and where he admits that his testimony was false, this constitutes a wilful and knowing false swearing, and requires the jury to reject his testimony entirely, unless it be “corroborated by circumstances or other unimpeached evidence” ’ ” Hill v. State, 159 Ga. App. 489 (2) (283 SE2d 703) (1981). See also Cargill v. State, 255 Ga. 616 (30 (b)) (340 SE2d 891) (1986); Smaha v. George, 195 Ga. 412 (3) (24 SE2d 385) (1943); McLendon v. Johnson, 71 Ga. App. 424 (3) (31 SE2d 89) (1944). Inasmuch as the requisite evidence to support a charge on wilful and false swearing was not present in the case at bar, the trial court erred by instructing the jury on the topic.

4. The harm resulting from the inclusion of the wilful and false swearing instruction in the charge was exacerbated by an improper attack upon the character of Mr. Johnson, appellant’s sole witness. While cross-examining Mr. Johnson, counsel for appellee asked the witness about a certain newspaper article concerning the witness, and identified the article as one about a “pyramid scheme.” Appellant’s counsel then moved for a mistrial outside the presence of the jury, contending Southern Bell had injected character evidence into the trial. The trial court denied the motion and cautioned appellee’s counsel. Appellant now argues that the trial court erred in failing to grant a mistrial or strike the evidence and rebuke appellee’s counsel. See OCGA § 9-10-185.

The trial court is vested with broad discretion in determining whether to grant a mistrial, and its ruling will not be disturbed on appeal unless a manifest abuse of discretion is apparent. Walker v. Bishop, 169 Ga. App. 236 (8) (312 SE2d 349) (1983). No such abuse of discretion being apparent, we will not disturb the denial of the motion for mistrial. However, the trial court neither rebuked counsel in the presence of the jury nor endeavored to remove the improper impression left by the reference to a pyramid scheme from the minds of the jurors. The absence of either corrective action flies in the face of the mandatory language of OCGA § 9-10-185, and is error. Compare Ward v. State, 252 Ga. 85 (2) (311 SE2d 449) (1984); Counts v. Moorehead, 232 Ga. 220 (1) (206 SE2d 40) (1974); Smith v. Westbrook, 133 Ga. App. 791 (2a) (213 SE2d 51) (1975). The reference to Mr. Johnson’s involvement in a pyramid scheme and the charge on wilful and false swearing had the effect of robbing appellant’s sole witness of his character, and permitted the jury to disregard entirely his testimony. The result could be nothing but harmful to appellant and accordingly, we must reverse.

5. Appellant next contends reversible error was committed when the trial court, citing OCGA § 24-5-26, admitted into evidence a photocopy of the advertising sales order contract for All Risk for the 1982-83 directory. The maker of the original testified that the exhibit was a photocopy of the original. Photostatic copies are ordinarily secondary evidence, which may not be admitted over objection without properly accounting for the original. Photostatic reproductions made in the regular course of business for purposes of permanent preservation may be used without accounting for the original under OCGA § 24-5-26. State v. Mincey, 167 Ga. App. 850 (1) (308 SE2d 18) (1983). However, where, as here, the party offering the evidence makes no attempt to establish that the photocopy was made in the regular course of business and fails to properly account for the absence of the original, it is error to admit the photocopy. Id.

Decided March 17, 1987.

Glenville Haldi, for appellant.

Jay L. Strongwater, Daniel M. Klein, for appellee.

6. Appellant argues that testimony allegedly concerning an offer to compromise was improperly admitted. Even if we were to view the testimony as an offer to compromise (but see U-Haul Co. of Western Ga. v. Ford, 171 Ga. App. 744 (2) (320 SE2d 868) (1984)), appellant’s failure to object to the earlier testimony on the subject vitiates his attempt to do so now.

7. Finally, appellant contends that the instruction given on quantum meruit was improper because it did not state that the reasonable value of the service is the reasonable value to the recipient. The charge given was deficient in that it did not say that value was to be computed from the recipient’s standpoint and not according to expenditures of the provider. See Stowers v. Hall, 159 Ga. App. 501 (3) (283 SE2d 714) (1981).

Judgment reversed.

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


text:
    73008.
    SEAY v. THE STATE.
    (355 SE2d 71)
   Benham, Judge.

Appellant appeals his conviction of the offenses of aggravated assault on a peace officer and possession of cocaine.

In his sole enumeration of error the appellant argues that the trial court erred in denying his motion for new trial in which he challenged the verdict as being contrary to law, contrary to the evidence, and strongly against the weight of the evidence. The jury was authorized by the evidence at trial to find that four police officers went to appellant’s apartment with a search warrant. They knocked at the door at least three times and announced that they were police officers and that they had a search warrant. After no response was heard, the police officers kicked down the door and entered the apartment. Inside the apartment, they announced several more times that they were police officers and called for anyone inside “to come out with their hands so that we could see them.” Appellant then asked three times, “Who is it?” After the first and second of appellant’s inquiries, the officers responded that they were police officers. Before the officers could answer the third time, appellant appeared with a shotgun and fired once. Three police officers were hit and injured by pellets from appellant’s weapon. After the shooting, a search of appellant’s apartment was conducted and cocaine was discovered. In a taped interview conducted by a police officer, appellant admitted to possession of the cocaine found in his apartment and admitted to “free basing” and to being “high” when the police arrived.

Decided February 20, 1987

Rehearings denied March 4, 1987 and March 18, 1987.

George W. Woodall, for appellant.

Hobart M. Hind, District Attorney, L. Earl Jones, Assistant District Attorney, for appellee.

When viewed in the light favorable to the verdict, as we are required to do, the evidence was sufficient to enable any rational trier of fact to find appellant guilty of the offenses charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Garvey v. State, 176 Ga. App. 268 (6) (335 SE2d 640) (1985).

Judgment affirmed.

Been, P. J., and Beasley, J., concur.


author: Benham, Judge. Beasley, Judge,

text:
    73040.
    MACON-BIBB COUNTY HOSPITAL AUTHORITY v. WHIPPLE.
    (355 SE2d 83)
   Benham, Judge.

Appellant Macon-Bibb County Hospital Authority, d/b/a Medical Center of Central Georgia, brings this appeal from a judgment entered on a jury verdict awarding appellee, the representative of the Estate of Annie Whipple, $100,000 for injuries the decedent sustained to her hand while receiving intravenous chemotherapy treatment as a cancer outpatient at appellant hospital. There was evidence that Mrs. Whipple experienced pain and suffering as a result of the extravasation of mutamycin from her vein into the soft tissue of her hand. She underwent surgery on her hand by Dr. Ron Freeman, a plastic surgeon, and treatment for pain by Dr. John Brown, a psychologist.

Appellant argues that the jury verdict was excessive and that the trial court erred in refusing to strike the testimony of Dr. Brown and in failing to give a requested charge. We affirm.

1. Appellant contends it was error for the trial court to permit John Brown, a psychologist, to testify as an expert that the injury Mrs. Whipple sustained to her hand affected her survivability. “Generally speaking, nothing more is required to qualify a witness as an expert than to show that, through education, training, or experience, he has special knowledge concerning the matter of science or skill to which his testimony relates.” Queen v. McDaniel, 178 Ga. App. 504, 505 (343 SE2d 783) (1986). Dr. Brown’s qualifications included an undergraduate and a graduate degree in psychology and a doctorate in counseling; membership in various professional organizations; and four years of practical experience at the Macon Pain Clinic assisting individuals in managing chronic pain. The testimony of Dr. Brown, who had treated the decedent at the Macon Pain Clinic, illustrated the psychological effect of the injury on the decedent’s life. “It is a matter within the sound discretion of the trial judge as to whether a witness has such learning and experience in a particular profession as to entitle him to be deemed prima facie an expert. [Cits.]” Anderson v. State, 178 Ga. App. 355 (3) (343 SE2d 411) (1986). The trial judge did not abuse his discretion in allowing Dr. Brown to testify as an expert.

2. Appellant next contends that the trial court erred in failing to charge the jury that Dr. Schnell and Dr. Smith, the physicians treating the decedent’s cancer, were independent contractors. Appellant requested the court to instruct the jury: “The defendant Medical Center of Central Georgia is not legally responsible for the acts and doings of Dr. Ron Freeman, Dr. James Smith or Dr. Fred Schnell as these doctors are independent contractors and not agents or employees of the hospital.” Instead, the trial court submitted to the jury the question whether the relationship between the hospital and the doctors was that of employer and employee, or employer and independent contractor.

Contrary to appellant’s assertion, the trial court’s jury charge was proper. The evidence showed that Mrs. Whipple was a patient of appellant hospital and not a private patient of Dr. Smith or Dr. Schnell. Drs. Smith and Schnell staffed the cancer clinic, a unit of the hospital, every Thursday and were paid an hourly rate by appellant for their services. The evidence presented a question of fact for the jury as to whether the doctors were employees of the hospital or independent contractors. Hollingsworth v. Ga. Osteopathic Hosp., 145 Ga. App. 870 (245 SE2d 60) (1978). “The court’s instruction to the jury should be looked to as a whole, and if the applicable law is stated accurately and fairly, in such manner as to work no prejudice, then this court will not consider a challenge to the wording of isolated segments. [Cits.]” Georgia Kraft Co. v. Laborers’ Intl. Union, 170 Ga. App. 581 (3) (371 SE2d 602) (1984). We find that the trial court’s instruction to the jury was clear and accurate. Furthermore, appellant’s request was not adjusted to the evidence in this case since it included therein that the court charge the jury that Dr. Freeman was an independent contractor. Dr. Freeman treated Mrs. Whipple’s hand after she sustained the burns. There was no evidence or issue in this case that he was negligent, nor was he ever called as a witness at trial. “In order to reverse for failure to give a requested charge, the charge so requested must be entirely correct, accurate and adjusted to the pleadings, law and evidence, and not otherwise covered in the general charge. [Cits.]” Id. at 585. Since appellant’s requested charge was not adjusted to the evidence presented, the trial court correctly refused to give the charge.

3. In its third enumeration of error, appellant contends that the jury verdict of $100,000 was excessive. Appellant argues that since Mrs. Whipple’s medical expenses amounted to $7,600.85, the remainder of the verdict, $92,399.15, was awarded for pain and suffering, and that amount is excessive. “The law fixes no measure for damages for pain and suffering except the enlightened conscience of impartial jurors. In the absence of plain proof that the verdict was the result of prejudice or bias this court will not interfere. There was no direct proof of prejudice or bias here. The verdict will not be set aside under the evidence presented. [Cits.]” Hightower v. McIntyre, 170 Ga. App. 269 (3) (316 SE2d 849) (1984).

Judgment affirmed.

Deen, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur insofar as Division 2 is concerned, but I must concur in the judgment only, with respect to Divisions 1 and 3.

One of the arguments made on appeal, with respect to Dr. Brown’s opinion that the psychological effect of the injury was to shorten Mrs. Whipple’s life, is that this element of damages turned the medical malpractice case into a wrongful death case. What the hospital is saying, as I understand it, is that a shortened life span occasioned by the depressed mental state brought on by the injury is not a recoverable measure of damages in this case. The only elements of damage are expenses and pain and suffering. The quality of life, not the length of it, is relevant, seems to be a position advanced by the hospital.

If the evidence that her life was shortened by her mental attitude contributed to the jury’s verdict, then the hospital may be correct that it was legally excessive. That is because there is then evidence that the jury deliberated under a mistake of law and considered an erroneous element of damages. See Brown v. Svc. Coach Lines, 71 Ga. App. 437, 447 (31 SE2d 236) (1944). A shorter life would not affect the amount of pain and suffering actually experienced by Mrs. Whipple during her life, unless it were argued that the quantum was diminished by having to endure it for a lesser time, which would benefit the defendant. On the other hand, if the jury considered a shorter life to be a loss to Mrs. Whipple, the evidence here would have allowed the jury to embrace it within the “pain and suffering” category.

Decided March 5, 1987

Rehearing denied March 18, 1987

Joseph W. Popper, Jr., Susan S. Cole, for appellant.

Jane M. Jordan, Neal D. McKenney, for appellee.

We cannot address this question because it was not raised below. Insofar as Dr. Brown’s testimony is concerned, the objection was not that the relative length of Mrs. Whipple’s life was not relevant. Rather, the grounds stated were that the testimony regarding “survivability” was outside the witness’ area of expertise, lacked a proper foundation, and was “inappropriate.” In later moving to strike that part of Dr. Brown’s testimony relating to lifespan, defendant added the ground that it was too speculative. There was never an objection based on its being irrelevant to the issue of damages in this case.

Nor was it a ground with respect to the complaint of excessiveness of verdict. The motion for judgment notwithstanding the verdict or in the alternative for a new trial did not mention it. It contains only the general grounds, the denial of directed verdict, and claim of error in the jury charge. Nothing in the record shows that this ground was raised before the trial court. It is therefore not before us. Cox v. City of Lawrenceville, 168 Ga. App. 119, 120 (1) (308 SE2d 224) (1983).

Because I agree that the grounds raised, with respect to Dr. Brown’s testimony and with respect to the excessiveness of the verdict, are not reversible in this case, I concur in the judgment only.


text:
    73337.
    T. V. TEMPO, INC. v. T. V. VENTURE, INC.
    (355 SE2d 76)
   Carley, Judge.

In connection with the termination of their business relationship, appellant-defendant T. V. Tempo, Inc. (Tempo), as maker, executed a promissory note payable to appellee-plaintiff T. V. Venture, Inc. (Venture). This appeal arises in the context of the fourth in a series of suits wherein an adjudication of the issue of Tempo’s liability on the promissory note has been sought. In two of the three previous proceedings, Tempo was named as the defendant in a suit seeking a recovery against it on the note. In these two cases, Tempo filed answers which raised numerous defenses to its liability on the note, and it also filed counterclaims. However, when the main actions against it were dismissed, Tempo in turn voluntarily dismissed its counterclaims. In the third of three prior actions, Tempo was the plaintiff in an action for damages, and included among the allegations of Tempo’s complaint against Venture was the assertion that its execution of the note had been fraudulently induced. This third suit was voluntarily dismissed by Tempo.

The fourth suit which is now under consideration in this appeal was begun when Venture filed another complaint, seeking to recover against Tempo on the note. Tempo’s answer again raised numerous defenses to its liability on the note, and Tempo again filed various counterclaims. Subsequently, Venture moved for summary judgment, contending that there had been a previous adjudication on the merits as against all of the defenses and counterclaims that Tempo was asserting. Venture’s motion relied upon the fact that Tempo had filed voluntary dismissals in the three previous proceedings and upon OCGA § 9-11-41 (a), which provided, at the times relevant to this appeal, that a voluntary dismissal “is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has twice dismissed in any court an action based on or including the same claim.”

The trial court conducted a hearing on Venture’s motion for summary judgment. It held that OCGA § 9-11-41 was a bar to Tempo’s further assertion, by way of counterclaim against Venture, of any claim that it had filed and voluntarily dismissed three times previously. Of all of Tempo’s counterclaims against Venture, the trial court ruled that only two would not be deemed to be barred. With regard to Tempo’s defenses to liability on the note, the trial court held that because OCGA § 9-11-41 would also bar the assertion of any defense that had been raised in three previous suits, all of Tempo’s defenses to liability as set forth in the pleadings in the present litigation were so barred. Accordingly, the trial court granted summary judgment in favor of Venture both on the note and as to all but two of Tempo’s counterclaims. It is from this order that Tempo brings this appeal.

1. In addition to the previous dismissal by a plaintiff of his action, the provisions of OCGA § 9-11-41 also apply “to the dismissal of any counterclaim, cross-claim, or third-party claim.” OCGA § 9-11-41 (c). Accordingly, insofar as on three prior occasions, twice by filing counterclaims and once by filing its own complaint, Tempo initiated and then voluntarily dismissed an action “based on or including the same claim” with regard to the note that it executed, it would appear that OCGA § 9-11-41 (a) bars Tempo’s further pursuit of any legal action against Venture to recover on those claims. Although Tempo does not challenge the trial court’s ruling that all but two of its counterclaims are barred under OCGA § 9-11-41, Tempo does enumerate as error the trial court’s ruling that all of its defenses to liability on the note would also be barred under that statute.

OCGA § 9-11-41 contains no provision expressly negating its applicability as a bar to the subsequent assertion of defenses by a defendant. However, by its express terms, the statute would clearly purport to create a bar only as against one who for the fourth time occupies the capacity of a claimant and seeks affirmative relief for himself, having three times previously brought and voluntarily dismissed a complaint, counterclaim, cross-claim or third-party claim seeking that same affirmative relief. See OCGA § 9-11-41 (a), (c). The voluntary dismissal of an action does not require or involve the defendant’s dismissal of his answer. Although the defendant’s counterclaim may remain viable, the defendant’s answer is rendered moot by virtue of the plaintiff’s dismissal of his complaint. Moreover, there is a fundamental difference between the assertion of a “defense” by a defendant and the assertion of a right to affirmative relief through the filing of a “claim,” “counterclaim,” “cross-claim,” or “third-party claim” by one who thereby occupies the status of a plaintiff. A “defense” is “[t]hat which is offered and alleged by the party proceeded against in an action or suit, as a reason in law or fact why the plaintiff should not recover or establish what he seeks. ... [A] [d]efense is not something by means of which [the] party who interposes it can obtain relief for himself. [Cit.]” Black’s Law Dictionary (4th ed. 1951). The clear intent of OCGA § 9-11-41 is merely to afford a res judicata defense to those against whom the same affirmative relief is being sought for yet a fourth time. If the same affirmative relief has been sought against a party three times previously and the action has been voluntarily dismissed on each occasion, the result is an “adjudication upon the merits” of the claims against him and there can be no further attempt on the part of the plaintiff or other claimant to secure the affirmative relief from him. A statute which merely provides a fourth-time defendant with a res judicata defense cannot be construed as creating a conclusive and absolute right on the part of a three-time defendant to obtain affirmative relief for himself should he subsequently choose to seek it as a plaintiff. The fact that Tempo, on three previous occasions, filed and dismissed an action asserting claims against Venture does not mean that Venture now has the right to recover merely by filing suit against Tempo. The third voluntary dismissal of an action against a defendant “does not, as a matter of law, adjudicate all issues in the case. Such a dismissal merely means that the same plaintiff cannot again sue that same defendant on that same cause of action. The [third voluntary] dismissal of an action . . . against a defendant adjudicates only the non-liability of that defendant to the plaintiff. It does not adjudicate other issues.” (Emphasis supplied.) Rowland v. Vickers, 233 Ga. 67, 68 (209 SE2d 592) (1974). Thus, Tempo’s third voluntary dismissal adjudicated only Venture’s non-liability as to Tempo’s claims arising from the note. Among the issues that Tempo’s third voluntary dismissal did not adjudicate was the liability of Tempo to Venture on the note itself. Accordingly, the trial court erred in holding that OCGA § 9-11-41 should be applied so as to bar Tempo’s “defenses” to liability on the note.

However, included among the assertions denominated as “defenses” by Tempo in its answer are numerous allegations regarding Tempo’s right to secure a set-off or recoupment as against Venture. A set-off or recoupment is not a defense to the liability that is being asserted in the main action. A defendant’s set-off or recoupment seeks affirmative relief against the plaintiff and, therefore is, in effect, a “counterclaim” rather than a “defense.” See Gwinnett Commercial Bank v. Flake, 151 Ga. App. 578, 579-580 (1) (260 SE2d 523) (1979). Accordingly, Tempo’s mistakenly designated “defenses” of set-off and recoupment must be treated as counterclaims. See OCGA § 9-11-8 (c). As discussed above, OCGA § 9-11-41 does apply so as to bar counterclaims. Therefore, we hold that the trial court did not err in ruling that Tempo’s “defenses” which asserted such claims for affirmative relief against Venture by set-off and recoupment as had been sought in its three previously dismissed actions were barred under OCGA § 9-11-41. Such of Tempo’s “defenses” of set-off and recoupment as were not so barred were correctly considered by the trial court to be counterclaims and summary judgment as to those claims was properly denied to Venture. The trial court erred only insofar as it held that Tempo was barred from asserting any defense against its liability to Venture on the note itself, including the affirmative defenses enumerated in OCGA § 9-11-8 (c).

2. For the reasons discussed in Division 1, the trial court erroneously held that Tempo was barred from defending as against its liability on the note. Venture, as the movant for summary judgment, did not pierce Tempo’s defensive pleadings, but relied instead on the contention that OCGA § 9-11-41 (c) was a total bar to Tempo’s assertion of any defense to liability. It follows that genuine issues of material fact remain as to the merits of Tempo’s defenses to liability on the note and the trial court erred in granting summary judgment to Venture.

3. The judgment of the trial court holding that OCGA § 9-11-41 is a bar to Tempo’s assertion of defenses is affirmed as to the misdesignated “defenses” of set-off and recoupment but reversed as to the defenses raised to liability on the note itself. The judgment of the trial court granting summary judgment in favor of Venture on the note is reversed. The judgment of the trial court granting summary judgment to Venture on all but two of Tempo’s counterclaims is not enumerated as error and, accordingly, is affirmed. Remaining enumerations of error are rendered moot by virtue of this disposition of the appeal.

Decided February 26, 1987

Rehearing denied March 18, 1987

Kirk W. Watkins, for appellant.

Thomas M. Strickland, for appellee.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Pope, J., concur.


author: Beasley, Judge.

text:
    73339.
    COMMERCIAL PLASTICS & SUPPLY CORPORATION OF GEORGIA et al. v. MOLEN.
    (355 SE2d 86)
   Beasley, Judge.

For use in his business, Molen ordered 500 pieces of a foam-like material from Commercial Plastics and issued a check to the company for $3,320.63. The company was able to deliver only part of the order and held the check until the balance arrived. The transaction disintegrated, and in this suit which ultimately materialized, Commercial Plastics contends that it was entitled to summary judgment.

Molen stated that at the time the order was placed Commercial Plastics’ employee Caine agreed to hold the check until Molen’s company was paid for the job for which the ordered material was to be used. Molen further stated that at the time he gave Commercial Plastics the check, he told Caine there were insufficient funds to cover it; that on the day of delivery of the supplies, only 350 pieces were available so he took delivery of the lesser amount; that Caine thereafter asked if the check could be deposited and that he again explained that his own company had not yet been paid so the check should not be deposited because it was for an incorrect amount, and that Caine agreed not to deposit the check.

Commercial Plastics maintained that when it received the additional materials Molen was so advised, but that after numerous calls he failed to pick them up so the company deposited the check. It was returned for insufficient funds. Attempts were made to contact Molen, and a certified letter, return receipt requested, was sent stating that if payment was not received in ten days an arrest warrant would be obtained. The letter was sent to the address imprinted on the check and numerous deliveries were attempted unsuccessfully.

Caine swore out a warrant for Molen’s arrest and a preliminary hearing was held at which Molen claims the company’s employee Pruitt swore falsely under oath that there was no agreement to hold the check until Molen received payment. Molen was bound over and required to post bond. Agreement was reached and executed for Molen to pay the check and the company to request that the criminal charge be dropped. Molen then filed suit against Commercial Plastics and employees Pruitt and Caine, claiming breach of the alleged agreement to hold the check, false swearing by employee Pruitt, and malicious prosecution.

Defendants moved for summary judgment which was denied. The court concluded that defendants’ affidavits had failed to pierce plaintiff’s allegation of an agreement to hold the check, that the complaint was not separated into counts setting forth the three causes of action, and that defendants’ motion was for total rather than partial summary judgment and there remained a question of fact as to some claims. We granted defendants’ application for interlocutory review.

1. Appellants contend that the trial court erred in not granting summary judgment on malicious prosecution (OCGA § 51-7-40) because termination of the criminal action as a result of compromise, i.e., their agreement to ask that the criminal charge be dropped in exchange for payment, cannot be considered as a termination in Molen’s favor for the purpose of grounds for such a suit. Molen counters that prosecution of the criminal action did not terminate as a result of the prosecuting party withdrawing a warrant or by compromise of the parties but rather by action of the district attorney’s office in dismissing the charge.

“The elements of malicious prosecution include: (1) prosecution for a criminal offense; (2) the prosecution instigated under a valid warrant, accusation, or summons; (3) termination of the prosecution in favor of the plaintiff; (4) malice; (5) want of probable cause; and (6) damage to the plaintiff. OCGA § 51-7-40; [cits.]” Medoc Corp. v. Keel, 166 Ga. App. 615 (1) (305 SE2d 134) (1983). With respect to the third ingredient, “where the termination of the prosecution has been brought about by compromise and agreement of the parties, an action for malicious prosecution cannot be maintained. [Cits.]” Waters v. Winn, 142 Ga. 138, 140 (2) (82 SE 537) (1914).

The record shows conclusively that the parties agreed that defendants would request the office of the district attorney to dismiss any criminal charges against Molen relating to the bad check and would cooperate with the district attorney in any way in order to cease prosecution of the case against Molen in exchange for Molen’s payment of an agreed amount owed; that Molen paid Commercial Plastics $1,200 and executed a promissory note to the company for the balance and shortly thereafter paid it with interest; and that the criminal case was dismissed. The fact that the dismissal was effected by the state does not alter the crucial fact that the impetus was the agreement and compromise of the parties. The key is found in a quotation in Waters, supra at 141: “ ‘If he [the plaintiff] settled the demand understanding and voluntarily, he is estopped from denying that the defendant had probable cause for bringing the suit.’ ” Defendants were entitled to summary judgment as to Molen’s claim of malicious prosecution on this basis.

2. Appellants additionally argue that under OCGA § 16-9-20 (h), any holder of a worthless check or instrument who gives notice substantially as provided in subparagraph (a) (2) (B), which was done, is immune from civil liability for giving such notice and proceeding. Molen’s failure to pick up the letter does not affect their immunity, they contend.

Molen maintains that Commercial Plastics cannot claim immunity because through its agents it knew facts which destroyed the criminal charge, i.e.: from the beginning he told the company the check would not be good until he himself was paid; the check was drawn for an incorrect amount; and the company had specifically agreed to hold the check until he had been paid.

“In order for the immunity provided in subsection (C) to attach, it must appear that the notice was sent and that the holder of the check proceeded ‘under the forms of such notice.’ ” Stallings v. Coleman, 165 Ga. App. 667, 668 (1) (302 SE2d 412) (1983). The record shows that correct notice was sent to Molen. The question then becomes whether or not defendants proceeded “ ‘under the forms of such notice.’ ” Id.

Defendants flatly deny that there was any agreement with Molen to hold the check. But this and Molen’s version are irrelevant because no evidence of the agreement to hold the check would be admissible. “In any civil action for damages which may be brought by the person who made, drew, uttered, or delivered such instrument, no evidence of statements or representations as to the status of the check, draft, order, or deposit involved or of any collateral agreement with reference to the check, draft, order, or deposit shall be admissible unless such statements, representations, or collateral agreement shall be written upon the instrument at the time it is delivered by the maker thereof.” OCGA § 16-9-20 (h). There was no alleged agreement on the check. There is no dispute that appellants gave all relevant information to the authorities. Therefore, unlike the circumstances in Stallings, defendants showed that they proceeded under the forms of the notice and are therefore entitled to the immunity for the activities mentioned in the notice.

3. Appellants further contend that they were entitled to summary judgment on the claim of breach of the alleged agreement to hold Molen’s check. We agree inasmuch as no evidence of the asserted agreement would be admissible. OCGA § 16-9-20 (h); see Division 2, supra.

Decided March 6, 1987

Rehearing denied March 18, 1987.

H. Andrew Owen, Jr., Perry A. Phillips, for appellants.

Russell B. Waldon, for appellee.

4. Lastly, appellants maintain that the trial court erred in denying their motion for summary judgment on the claim of “false swearing” by employee Pruitt.

We agree that appellants were also entitled to summary judgment on the final claim, that of “false swearing” by employee Pruitt. Had the preliminary hearing in question not been a judicial proceeding, there may have been potential criminal liability for false swearing under OCGA § 16-10-71 or, since it was a judicial proceeding, potential criminal liability for perjury under OCGA § 16-10-70. However, Molen provides no authority for such a civil cause of action.

Judgment reversed.

Been, P. J., and Benham, J., concur.


text:
    73482.
    FREEMAN v. C. W. REDFERN ENTERPRISES, INC.
    (355 SE2d 79)
   Carley, Judge.

In March of 1983, appellee-defendant C. W. Redfern Enterprises, Inc. (Redfern, Inc.) purchased a kitchen remodeling firm known as Kitchen Stylists, Inc. It is undisputed that Redfern, Inc. thereafter continued to operate the business and used “Kitchen Stylists, Inc.” as its purported trade name. In June of 1983, appellant entered into a contract for the remodeling of the kitchen in his home. Appellant’s contract was with “Kitchen Stylists, Inc.” The contract contained an arbitration clause. Following some period of performance under the contract, a dispute arose. Appellant subsequently brought this suit, naming Kitchen Stylists, Inc., but not Redfern, Inc. as among the defendants. However, Redfern, Inc. did file an answer, asserting that it had been “improperly denominated as Kitchen Stylists, Inc. . . .” Redfern, Inc.’s answer raised arbitration as a defense and it subsequently moved to enforce the arbitration clause in the contract. The trial court granted the motion, but certified its order for immediate review in this court. This appeal results from the grant of appellant’s application for interlocutory appeal.

1. Appellant’s sole enumeration is that the trial court erroneously granted Redfern, Inc.’s motion to compel arbitration. This contention is based upon several grounds. Appellant first urges that Redfern, Inc. is without standing to enforce the arbitration clause because it is not a proper party to this suit. Appellant contends that he contracted with and brought suit against only Kitchen Stylists, Inc. and that it is only that entity and not Redfern, Inc., that may seek to enforce the arbitration provision of the contract.

From the record, it is clear that appellant’s only contract was with Redfern, Inc., insofar as “Kitchen Stylists, Inc.” was merely a trade name for the kitchen remodeling firm that was owned and operated by Redfern, Inc. Assuming that appellant is correct in his assertion that Redfern, Inc. did not undertake proper measures to register Kitchen Stylists, Inc. as its trade name (see OCGA § 14-2-41 et seq.), Redfern, Inc. would not thereby be rendered incompetent to contract or to sue or be sued in its assumed trade name. See generally OCGA § 10-1-491; Mozley v. DeVore, 122 Ga. App. 867 (179 SE2d 102) (1970). Appellant brought suit against Kitchen Stylists, Inc. on a contract which bears that name. Kitchen Stylists, Inc. was, however, a trade name employed by Redfern, Inc. Redfern, Inc. answered the suit using its own name rather than its trade name. It is clear that Redfern, Inc. is a proper party to the instant suit and may seek enforcement of the arbitration clause of the contract.

2. Appellant urges that the arbitration clause is rendered void and unenforceable by reason of Redfern, Inc.’s fraud in the inducement. Review of the record reveals no evidence of fraudulent or deceitful conduct on the part of Redfern, Inc. which would render the contract null and void.

3. Appellant urges that the arbitration clause is overbroad and violates the public policy of this State.

As a general rule, Georgia courts have been reluctant to enforce contractual arbitration clauses. “Otherwise nothing would be easier than for the more astute party to oust the courts of jurisdiction. By first making the contract and then declaring who should construe it, the strong could oppress the weak, and in effect so nullify the law as to secure the enforcement of contracts usurious, illegal, immoral, or contrary to public policy.” Parsons v. Ambos, 121 Ga. 98, 101 (48 SE 696) (1904). Accordingly, a contract provision requiring arbitration will generally be enforced only if it “ ‘limits its applicability to questions such as the amount of loss or damage and requires arbitration as a condition precedent to a right of action upon the contract itself. . . . [Cit.]’ ” Savannah Transit Auth. v. Ledford, 179 Ga. App. 238 (345 SE2d 915) (1986). Appellant urges that the contractual arbitration clause at issue fails to meet these strict requirements and is thus unenforceable.

Decided February 26, 1987

Rehearing denied March 18, 1987

David M. Brown, for appellant.

Gerald F. Handley, Eugene P. Chambers, Jr., Arthur L. Myers, Jr., for appellee.

Appellant’s reliance upon the general rule of unenforceability of arbitration provisions in contracts is misplaced. The General Assembly has established the public policy of this State with regard to the enforceability of arbitration agreements contained in construction contracts such as that which is here in issue. See OCGA § 9-9-80 et seq. The arbitration agreement contained in the construction contract for remodeling appellant’s kitchen is clearly valid and enforceable pursuant to the relevant statutory provisions.

4. Appellant urges that Redfern, Inc. has waived the right to rely upon the arbitration agreement by engaging in actions which are inconsistent with the right of arbitration. See generally McCormick-Morgan, Inc. v. Whitehead Elec. Co., 179 Ga. App. 10 (345 SE2d 53) (1986). However, the record shows that arbitration under the contract was sought when the dispute first arose, and that appellant filed this legal action only after the arbitration clause had been invoked. Red-fern, Inc. raised arbitration as a defense when it filed its answer. While Redfern, Inc. did agree to numerous consent orders while discovery proceeded, there is no evidence that it took any action inconsistent with its assertion that arbitration was the proper disposition of the controversy. Compare McCormick-Morgan, Inc. v. Whitehead Elec. Co., supra.

5. Appellant’s remaining contentions that the trial court’s arbitration order is erroneous are either moot or have no merit.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


author: Sognier, Judge.

text:
    73778.
    GEMINI CONSTRUCTION COMPANY, INC. v. CHILDS et al.
    (355 SE2d 81)
   Sognier, Judge.

The background to this action by J. A. Childs Construction Company (Childs) and others seeking to enforce the terms of an oral settlement negotiated with Gemini Construction Company (Gemini), is fully set forth in J. A. Childs Constr. Co. v. Gemini Constr. Co., 170 Ga. App. 314 (316 SE2d 606) (1984). In that case we dismissed the appeal from the trial court’s denial of Childs’ motion to enforce the settlement on procedural grounds. On remand, a bench trial was had and a judgment was entered in favor of Childs. Gemini appeals.

Decided March 3, 1987

Rehearing denied March 18, 1987.

Appellant challenges the sufficiency of the evidence supporting the trial court’s finding that an oral agreement existed and that the settlement effected by the agreement was full, final and complete. “When a trial court sits as both judge and jury, the court’s findings of fact are binding on appeal, and, unless wholly unsupported or clearly erroneous, will not afford a basis for reversal. OCGA § 9-11-52 (a); [Cit.] On appeal, this court must not substitute its judgment for that exercised by the trial court when there is some support for the trial court’s conclusion. Our duty is not to weigh evidence de novo, but to merely determine if there is any evidence which supports the judgment below. [Cit.]” Cessna Fin. Corp. v. Design Engineering, 176 Ga. App. 206, 208 (335 SE2d 625) (1985). Appellees’ counsel testified that the items appellant now claims were not resolved in the settlement agreement were never mentioned to him during the negotiation period in question and formed no part of the deliberations surrounding the agreement. Appellant’s former attorney who negotiated the agreement testified he had the authority to reach a settlement in the sum agreed upon but had “no recollection” whether the allegedly unresolved items were discussed on the date the trial court found a settlement was reached. “Even in the face of conflicting evidence, the trial court’s judgment will be upheld as long as there is ‘any evidence’ to uphold the lower court’s determination. [Cit.]” Id. Brumbelow v. Northern Propane Gas Co., 251 Ga. 674 (308 SE2d 544) (1983), cited by appellant, is distinguishable in that it involved OCGA § 15-19-5 and carefully distinguished OCGA § 15-19-6, id. at 674, fn. 1, which is the applicable statute here. We find no error in the trial court’s order returning to appellees all funds (including accrued interest) over and above the settlement amount deposited by appellees into court during the pendency of the litigation. There is no evidence of record that appellees were obligated under the settlement agreement to pay appellant any interest on the amount negotiated by the parties. Since the amount in issue was determined contractually, the authority appellant cites regarding interest on judgments is not applicable.

Accordingly, there being some evidence to support the trial court’s determination, the judgment below must be affirmed. See Cessna Fin. Corp., supra; Holcomb v. Evans, 176 Ga. App. 654, 655 (1) (337 SE2d 435) (1985).

Judgment affirmed.

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

Henry Randolph, Jr., pro se.

Charles E. Walker, Donald D. Smith, for appellees.


text:
    72986.
    INMAN v. THE STATE.
    (355 SE2d 119)
   Beasley, Judge.

Appellant claims he was deprived of federal constitutional due process because his conviction of burglary (OCGA § 16-7-1) was based on the testimony of an accomplice corroborated only by an inference which was not rationally connected. The question therefore is whether the inculpatory testimony of an accomplice was lawfully corroborated. Shumake v. State, 159 Ga. App. 141 (1) (282 SE2d 756) (1981).

Acknowledging that corroboration of the testimony by a single accomplice is necessary, OCGA § 24-4-8, our courts have held that the corroborating evidence itself need not be sufficient to warrant conviction, but only tend to connect and identify defendant with crime. Whitfield v. State, 159 Ga. App. 398 (283 SE2d 627) (1981). “Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict.” Reaves v. State, 242 Ga. 542, 543 (250 SE2d 376) (1978); Castell v. State, 250 Ga. 776, 780 (1) (301 SE2d 234) (1983). See also Gunter v. State, 243 Ga. 651 (2) (256 SE2d 341) (1979).

It was established that defendant was in recent possession of an item taken during the burglary of the store. According to appellant’s girl friend, the mother of his child, he and another accomplice visited her and each gave her one of the stolen leather coats. This occurred within a few hours of the burglary. Appellant argues that recent possession is not viable evidence which can act as corroboration, citing Bankston v. State, 251 Ga. 730 (309 SE2d 369) (1983). We do not read Bankston to reach such result. Although our Supreme Court held that “recent, unexplained possession is not automatically sufficient to support a conviction for burglary, . . . recent possession is to be viewed as probative evidence of the crime,. . . and reviewed along with the other evidence in the case to determine whether any rational juror could find the defendant guilty beyond a reasonable doubt.” Bankston, supra at 731. See Chaney v. State, 169 Ga. App. 616 (1) (314 SE2d 457) (1984).

Bankston leaves unchanged the rule that “[r]ecent possession of stolen property, not satisfactorily explained, is sufficient basis for the corroboration of an accomplice’s testimony.” Green v. State, 139 Ga. App. 652, 653 (1) (229 SE2d 129) (1976); Cole v. State, 156 Ga. App. 288, 290 (1) (274 SE2d 685) (1980); Brady v. State, 169 Ga. App. 316, 317 (1) (312 SE2d 632) (1983). Whether “a defendant’s explanation of his possession of stolen property was satisfactory or reasonable” is a jury question. Brown v. State, 157 Ga. App. 473, 474 (1) (278 SE2d 31) (1981). The jury was not required to accept appellant’s explanation of the recent possession and discard the inference of guilt which the facts concerning the recent possession served.

Decided March 18, 1987.

Susan C. Janowski, James A. Yancey, Jr., for appellant.

Harry D. Dixon, Jr., District Attorney, Richard E. Currie, Assistant District Attorney, for appellee.

Recognizing that the credibility of witnesses was for the jury and that on appeal we construe the evidence in favor of the verdict, the evidence was sufficient for the jury to find defendant guilty beyond a reasonable doubt. Collins v. State, 176 Ga. App. 634, 637 (1) (337 SE2d 415) (1985). In citing Collins, we are aware, as should also be the bench and bar, that the statement in Collins at page 636 regarding “no further proof” must be modified in view of Bankston. Even if defendant did not enter the building, he was criminally responsible for the burglary as an aider and abetter. OCGA §§ 16-2-20 and 21.

Judgment affirmed.

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


author: McMurray, Presiding Judge. Pope, Judge,

text:
    73021.
    SIMON v. THE STATE.
    (355 SE2d 120)
   McMurray, Presiding Judge.

Defendant was charged by a two-count accusation with the offenses of driving under the influence of alcohol in violation of OCGA § 40-6-391 (a) (1) (Count 1) and of driving while there was 0.12 percent or more by weight of alcohol in the defendant’s blood in violation of OCGA § 40-6-391 (a) (4) (Count 2). (Defendant entered a plea of guilty to the offense of operating a motor vehicle without insurance in violation of OCGA § 33-34-12, which was charged by a separate accusation.) A jury returned a verdict of guilty as to both Count 1 and Count 2. Defendant was sentenced as to Count 1 and the no insurance offense only. Defendant appeals his conviction of the two violations of OCGA § 40-6-391. Held:

1. Defendant contends that the trial court erred in admitting evidence of two prior driving under the influence convictions. The prior incidents occurred on May 30, 1982 and October 27, 1982. The incident at bar occurred on October 25, 1985. “Once the identity of the defendant is shown to be the same as that of the perpetrator of an independent crime of sufficient similarity that proof of that crime tends to prove the offense charged, evidence of the independent crime may be introduced to show identity, motive, plan, scheme, bent of mind and course of conduct. Williams v. State, 251 Ga. 749 (312 SE2d 40) (1983); Head v. State, 246 Ga. 360 (271 SE2d 452) (1980); Hamilton v. State, 239 Ga. 72 (235 SE2d 515) (1977).” Cunningham v. State, 255 Ga. 35, 37 (4) (334 SE2d 656). Identity of defendant as the perpetrator of both prior incidents was shown. The State showed that both, the prior offenses and the offenses charged, involved driving under the influence of alcohol in the metropolitan Atlanta area and that defendant was driving the same vehicle in all of the incidents. There are sufficient similarities between the incidents that the two prior incidents were admissible to show course of conduct and bent of mind. Also, we note that defendant stipulated at trial that the prior charges were similar. Cunningham v. State, 255 Ga. 35, 37 (4), supra.

2. During the direct examination of a State’s witness called to give evidence concerning one of the prior convictions, the witness was giving a narrative of the incident when he stated “At that time I placed him under arrest for driving under the influence and left of center. There were some additional charges that were —” At this point the assistant solicitor interrupted and stopped the witness’ testimony. The defendant moved for a mistrial based on the mention of other charges against defendant. The trial court gave proper and comprehensive instructions to the jury “to disregard any statement about some other charges . . . strike that from your memory and you are not to consider that in your deliberations in connection with this case.” The defendant did not request further instructions or renew his motion for mistrial following the trial court’s instructions to the jury. Under these circumstances an enumeration addressed to such ground is without merit. Sheppard v. State, 168 Ga. App. 441 (1) (309 SE2d 665); Grayson v. State, 159 Ga. App. 138, 139 (1) (282 SE2d 755).

3. The intoximeter operator testified that she conducted the intoximeter test on defendant at 2:49 a.m. and that the results were “.14 grams per 100 cc’s of blood.” On cross-examination the intoximeter operator testified that she was not able to testify as to defendant’s blood alcohol content level at the time of the violation, 40 minutes earlier.

Defendant moved for a directed verdict as to Count 2 (violation of OCGA § 40-6-391 (a) (4)), driving when there is 0.12 percent or more by weight of alcohol in defendant’s blood. Defendant argues that the evidence was insufficient to establish the alcohol content at the time he was driving or in actual physical control of a moving vehicle. However, we have held that the absence of testimony about the metabolic rate of alcohol in the blood (presumably so as to permit calculation of the blood alcohol content at the actual time of the offense from the results of a subsequently administered chemical test) does not render the evidence insufficient to support the conviction. Morris v. State, 172 Ga. App. 832, 833 (1) (324 SE2d 793). A rational trier of fact could reasonably have found from the evidence adduced at trial proof of defendant’s guilt of Count 2 beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Kimberly v. State, 180 Ga. App. 521 (1) (349 SE2d 489).

4. Defendant contends that the trial court erred in its charge to the jury by giving the language of OCGA § 40-6-392 (b) (3) which states that “[i]f there was at that time 0.10 percent or more by weight of alcohol in the person’s blood, it shall be presumed that the person was under the influence of alcohol.” This charge which lacks any qualifying instruction as to the effect of the presumption is impermissibly burden shifting. Sandstrom v. Montana, 442 U. S. 510, 517, 519 (99 SC 2450, 61 LE2d 39); Francis v. Franklin, 471 U. S. _ (105 SC 1965, 85 LE2d 344). While the trial court also gave the instruction discussed in the two-judge case of Peters v. State, 175 Ga. App. 463, 468 (2) (333 SE2d 436), concern that the jurors resolved the contradiction in instructions by choosing to abide by the mandatory presumption, requires reversal as to Count 1 (violation of OCGA § 40-6-391 (a) (1)); Sandstrom v. Montana, 442 U. S. 510, 515, supra. This error does not require reversal of the conviction under Count 2 (violation of OCGA § 40-6-391 (a) (4)), since the erroneous burden-shifting charge is not relevant to the determination of any of the elements of the crime established in OCGA § 40-6-391 (a) (4). See Lester v. State, 253 Ga. 235, 237 (2) (320 SE2d 142); Peters v. State, 175 Ga. App. 463, 469 (a), supra.

5. In summary, defendant’s conviction and sentence as to Count 1 are reversed. His conviction as to Count 2 is affirmed. Upon the return of this case to the trial court defendant may be sentenced as to Count 2.

Judgment affirmed in part and reversed in part.

Carley and Pope, JJ., concur as to Divisions 1, 2, 3 and 5. Carley and Pope, JJ., concur specially as to Division 4, and also concur in the judgment.

Pope, Judge,

concurring specially.

Although I agree with the majority that defendant’s conviction on Count 1 of the indictment must be reversed, I am compelled by what I perceive as continuing uncertainty concerning what constitutes a proper charge in a case prosecuted under OCGA § 40-6-391 (a) (1) to attempt to clarify the reasoning which I think dictates the majority’s result.

Prior to our holding in Peters v. State, 175 Ga. App. 463 (2) (333 SE2d 436) (1985), overruled on other grounds, Hogan v. State, 178 Ga. App. 534 (343 SE2d 770) (1986), it was permissible in this state for a trial court to give in charge the language found in OCGA § 40-6-392 (b) (3) so long as the trial court also charged that the presumption contained in that code section was rebuttable, reasoning that such an instruction obviated any due process concerns by creating a permissible rather than a mandatory presumption. See, e.g., Brown v. State, 174 Ga. App. 470 (330 SE2d 408) (1985); Olsen v. State, 168 Ga. App. 296 (1) (308 SE2d 703) (1983); McCann v. State, 167 Ga. App. 368 (306 SE2d 681), cert. den., 464 U. S. 1044 (1983). In Peters we reexamined our previous position in light of the recent United States Supreme Court case Francis v. Franklin, 471 U. S. __ (105 SC 1965, 85 LE2d 344) (1985), and, applying the reasoning contained therein, found that the charge previously upheld in McCann, supra, and its progeny, appeared to instruct the jury to apply both mandatory and permissive presumptions. We also adopted the Court’s conclusion in Franklin that “ ‘(a) reasonable juror could easily have resolved the contradiction in the instruction by choosing to abide by the mandatory presumption and ignore the prohibition of presumption.’ Francis v. Franklin, [85 LE2d supra at 358.]” Peters, supra at 468. Thus “we . . . caution [ed] the bench and bar that, in all likelihood, such charge in the language of OCGA § 40-6-392 (b) (3) is subject to reversal based upon impermissible burden shifting, even where the jury is instructed that the presumption contained therein is rebuttable. We suggest instructing the jury in cases prosecuted under OCGA § 40-6-391 (a) (1) to the effect that where the blood-alcohol content is shown to be 0.10 percent or higher, the jury may infer that the person was under the influence of alcohol, and that whether such inference is made is a matter solely within the discretion of the jury.” Peters, supra at 468. But see Stewart v. State, 176 Ga. App. 148 (335 SE2d 603) (1985).

In the present case, the trial court gave in charge both the language found in OCGA § 40-6-392 (b) (3) and that suggested by us in Peters. Although possibly constituting an improvement over the “rebuttable presumption charge,” I agree with the majority that the charge given in the case sub judice suffers the same constitutional infirmity as that discussed in Peters. Thus, I find it necessary once again to caution the bench and bar concerning the possibility of reversal when the jury is charged in the language found in OCGA § 40-6-392 (b) (3); rather, I would urge the trial courts in this state to give instead the language suggested in Peters, which is also found in the Council of Superior Court Judges Suggested Pattern Jury Instructions, Vol. 2, Criminal Cases.

Based on the foregoing, I would remand the case to the trial court for sentencing under Count 2.

Decided March 18, 1987.

John Kirby, for appellant.

Ralph T. Bowden, Solicitor, Elliott A. Shoenthal, Assistant Solicitor, for appellee.

I am authorized to state that Judge Carley joins in this special concurrence.


text:
    73247.
    HORTON v. WOMBLES et al.
    (355 SE2d 124)
   Benham, Judge.

In his complaint filed September 17, 1981, appellant alleged that the City of Wrightsville negligently repaired a sewer line located near his residence, causing sewage to back up into his home and damage his property. In their answer, appellees, the mayor and city council members of Wrightsville, defended on the grounds that the maintenance of sewers was a governmental function and thus not a proper subject for a tort action; that appellant had sued the wrong parties; and that appellant had failed to give the proper ante litem notice. A motion to dismiss accompanied appellees’ answer.

In 1984, appellant filed a motion for summary judgment on the issue of liability. Appellees filed no response to the motion but their counsel appeared at the motion hearing and argued for dismissal of the lawsuit. The trial court granted appellees’ motion to dismiss, effectively denying appellant’s motion for summary judgment. In his sole enumeration of error, appellant asserts as error the denial of his motion for summary judgment.

1. The appeal of the denial of a motion for summáry judgment is generally obtained through the grant of an application for interlocutory review since the denial of summary judgment is usually not a final judgment. In the case at bar, however, the denial of appellant’s motion for summary judgment was encompassed in the final judgment, the grant of appellees’ motion to dismiss. Therefore, appellant’s appeal is not premature. See Southeast Ceramics v. Klem, 246 Ga. 294 (1) (271 SE2d 199) (1980).

2. Citing OCGA § 9-11-56, appellant argues the trial court should have granted his motion for summary judgment since appellees failed to respond to his motion. We disagree. Contrary to appellant’s argument, OCGA § 9-11-56 does not require an adverse party to respond to a motion for summary judgment. Furthermore, “[t]he opposing party in a summary judgment proceeding is under no duty to present counter evidence in opposition to the motion for summary judgment until the moving party has produced evidence demanding that judgment. [Cits.]” Peoples Bank of Bartow County v. Austin, 159 Ga. App. 223 (2) (283 SE2d 81) (1981). In support of his motion, appellant submitted his affidavit in which he restated his assertions that appellees were responsible for the damage appellant had incurred. The trial court dismissed appellant’s complaint on the ground that the maintenance of a sewer system is a governmental function for which an action for negligent performance will not lie. “[T]here is complete unanimity in the holdings of our appellate courts that ‘in an action based on negligence alone a municipal corporation is not liable for damage caused by the negligent maintenance of its system of sewerage and drainage, such maintenance being a governmental and not a ministerial function.’ [Cit.]” Johnson v. City of Atlanta, 117 Ga. App. 586, 589 (161 SE2d 399) (1968).

Decided March 18, 1987.

Floyd Mincey, for appellant.

Eric L. Jones, for appellees.

Since appellant presented no evidence that demanded summary judgment in his favor, the trial court did not err in denying his motion.

Judgment affirmed. Deen, P. J., concurs. Beasley, J., concurs in judgment only.