text:
    A93A0133.
    DILLS v. BOHANNON et al.
    (431 SE2d 123)
   Beasley, Presiding Judge.

We granted plaintiff Dills’ application for discretionary appeal of an award to defendants Bohannon and Colonial Freight of litigation expenses and attorney fees under OCGA § 9-15-14.

This suit arose out of a collision between a van driven by Dunbar in which Dills was a passenger and a tractor-trailer driven by Bohannon. Both vehicles were proceeding in a northerly direction on 1-75, with Dunbar’s van in the center lane and Bohannon’s tractor-trailer in the right lane. Dunbar’s vehicle struck Bohannon’s vehicle in the rear. State Trooper Ralston, the investigating police officer, testified that when he arrived on the scene it was raining, the road was wet, and he observed no skid marks, but he did observe debris in the right-hand lane, from which he concluded that this was the area of impact. He returned to the scene later and still did not find any skid marks. Amos, an eyewitness who had observed the collision, testified that it was caused by Dunbar’s swerving into the right lane. Another eyewitness said the same thing. At the scene of the collision, Dunbar stated that he had fallen asleep and lost control of the van. However, he testified that several days after the collision, he returned to the scene, observed skid marks in the middle lane, and recalled that he had not fallen asleep but rather the tractor-trailer had swerved into his lane of travel.

Dills sued Brooks International, Inc. and its insurer, Home Indemnity Company, alleging that negligence by Dunbar caused the collision and that his negligence was imputable to Brooks, in whose business Dunbar was engaged at the time of the collision. An arbitration hearing was scheduled. Dills filed a motion to add Dunbar, Bohannon, and Bohannon’s employer, Colonial Freight Systems, Inc., as party defendants, stating that Dills had learned during the course of discovery that Brooks was maintaining that Dunbar was an independent contractor and not an employee, and that Dunbar was maintaining that Bohannon’s negligence caused or contributed to the collision. Dills also moved to file an amended complaint alleging that Bohannon’s negligence, imputable to Colonial Freight, caused the collision. The trial court granted the motion.

The arbitrators entered an award finding for Dills in the amount of $250,000 against Brooks, Dunbar, and Home Indemnity only, and these defendants filed a demand for jury trial as to all questions of fact and law. Dills filed a demand for jury trial as to all defendants but subsequently negotiated a $125,000 settlement with Dunbar, Brooks, and Home Indemnity. She sought unsuccessfully to negotiate a settlement with Bohannon and Colonial Freight. Nonetheless, she dismissed her complaint against all defendants.

Colonial Freight and Bohannon then filed a motion seeking an OCGA § 9-15-14 award of litigation expenses and attorney fees against Dills. Counsel submitted a supporting affidavit in which he stated that there was no evidence that Bohannon was in any way at fault except for Dunbar’s contention which, under the circumstances, was of no validity, and that Colonial Freight and Bohannon had incurred a total of some $9,600 in litigation expenses and attorney fees.

After hearing argument of counsel and considering all matters of record, the trial court granted these defendants’ motion in the amount requested.

In two respects, “[t]he Supreme Court in Porter v. Felker, 261 Ga. 421 (405 SE2d 31) (1991) has overruled the principle set forth in a line of cases in this court that the denial of a defendant’s motion for summary judgment on the plaintiff’s complaint constitutes a ‘binding determination,’ id. at 422 (2), that plaintiff’s claim did not lack substantial justification. [Cits.]” Seckinger v. Holtzendorf, 200 Ga. App. 604, 605 (409 SE2d 76) (1991). First, the Court in Porter made plain that the erroneous denial of a defendant’s motion for summary judgment is not a binding determination. 261 Ga. at 422 (2). Absent that, the Court in Porter held that “a trial court’s award to a party whose motion for summary judgment was denied must be vacated except in unusual cases where the trial judge could not, at the summary judgment stage, foresee facts authorizing the grant of attorney fees.” Id. at 422 (3).

1. Bohannon and Colonial Freight did not file a motion for summary judgment. The question therefore is whether such a motion, if filed by them, would have been denied. On the present record, the answer is “yes.”

Where a party gives testimony contradicting an out-of-court admission of such party, it is for. the trier of fact to say whether it was true or false when made. Faulkner v. Brown, 92 Ga. App. 602, 603 (1) (89 SE2d 583) (1955). In summary judgment proceedings, the court cannot weigh the evidence or determine its credibility. Where the facts as testified to by the parties create a conflict in the evidence as to a material issue, summary judgment is precluded. HOH Co. v. Ethridge, 168 Ga. App. 20, 22 (2) (308 SE2d 43) (1983). Dunbar’s testimony did create a conflict in the evidence as to whether he or Bohannon caused the collision. Although his testimony may have been lacking in credibility and beyond reasonable belief, we have not found nor been cited to any exception to summary judgment rules applicable to such testimony.

A motion for summary judgment filed by Bohannon and Colonial Freight might have been granted on grounds that Dills, without reasonable explanation, gave self-contradictory testimony, so that the court could take against her that version of her testimony most unfavorable to her. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680) (1986). However, Dills’ deposition has not been filed and made a part of the record, so we cannot make this determination.

2. The next question is whether this is one of those unusual cases where unforeseen facts authorizing the grant of attorney fees and litigation expenses arose subsequent to the time these defendants’ motion for summary judgment would or could have been denied. Ansa Mufflers Corp. v. Worthington, 201 Ga. App. 602 (411 SE2d 573) (1991).

It could be argued that by appealing the arbitration award as to Bohannon and Colonial Freight, Dills “unnecessarily expanded the proceeding,” within the meaning of OCGA § 9-15-14 (b). However, there is no authority for awarding attorney fees and litigation expenses on this ground. Compare Osborn & Walcott Mfg. Co. v. Blanton, 109 Ga. 196 (3) (34 SE 306) (1899).

That the defendants’ motion for summary judgment would have been denied constitutes a binding determination that plaintiff’s claim did not lack substantial justification, i.e., was not substantially frivolous, substantially groundless, or substantially vexatious, and was not interposed for delay or harassment. OCGA § 9-15-14 (b).

Judgment reversed.

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

Decided April 5, 1993 —

Reconsideration denied April 23, 1993

Mitchell, Coppedge, Wester, Bisson & Miller, Terry L. Miller, for appellant.

White, Smith, Howard & Ajax, Bruce H. Beerman, Dennis, Corry, Porter & Gray, Robert E. Corry, Jr., for appellees.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A93A0775.
    CARSON v. THE STATE.
    (431 SE2d 156)
   McMurray, Presiding Judge.

Via indictment, defendant, Christopher Jerome Carson, and a co-defendant, Melvin Malcolm, were charged and accused with violating the Georgia Controlled Substances Act by selling cocaine. Defendant moved to sever his trial from the trial of the co-defendant. The motion was denied and defendant and the co-defendant were tried together by a jury of their peers. Defendant was found guilty; the co-defendant was acquitted. Defendant was given a life sentence and moved for a new trial. The new trial motion was denied and defendant appealed. Held:

1. Defendant asserts the trial court erred in denying his motion to sever. We disagree.

“Whether to sever the trials of co-defendants is a matter of discretion with the trial judge, and, absent abuse, his decision will not be disturbed by the appellate court. OCGA § 17-8-4; Glover v. State, 188 Ga. App. 330 (373 SE2d 39) (1988). Factors to be considered by the court in its exercise of discretion are as follows: (1) Will the number of defendants create confusion as to evidence and law relative to the separate defendants? (2) Is there a danger that evidence admissible against only one defendant (or, where there are more than two defendants, only against certain ones of them) will nevertheless be considered against another?; and (3) Are the defendants’ respective defenses antagonistic to the defenses, or the rights, of another? Glover v. State, supra at 331. It is the defendant who has the burden of showing, on his motion to sever, that any of the named criteria are applicable so as to prejudice his defense.” Causey v. State, 192 Ga. App. 294, 297 (4) (384 SE2d 674).

Defendant failed to carry his burden of showing that he was prejudiced by any of the applicable criteria. First, there were only two defendants and the evidence and law with regard to each defendant was nearly identical. (Defendant and his co-defendant were charged with the same sale of cocaine. The evidence demonstrated that defendant received the money for the sale and directed the buyer to his co-defendant (who dispensed the drug).) It cannot be said, therefore, that the number of defendants created confusion. Second, there was no danger that evidence that was inadmissible against one defendant was admissible against another defendant. (Although the co-defendant was permitted to ask the buyer about prior dealings with defendant, see Division 4, the trial court cautioned the jury that it was not to consider prior dealings as evidence of guilt.) Finally, the defendant’s and co-defendant’s defenses were not antagonistic. Each of them denied any involvement in the sale. Accordingly, the trial court did not abuse its discretion in denying the motion to sever.

2. The buyer testified that he asked defendant if he could make a cocaine purchase; that he believed he paid defendant $100, but he could not be sure; that defendant directed him to see the co-defendant, who was sitting in defendant’s automobile; and that he entered defendant’s automobile and obtained the cocaine. The buyer’s testimony was bolstered by the testimony of an undercover officer who averred that he saw the buyer pay $100 to defendant. This evidence was sufficient to enable any rational trier of fact to find defendant guilty of selling cocaine beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Cleveland v. State, 204 Ga. App. 101, 102 (1) (418 SE2d 430). The mere fact that the buyer was unable to remember whether he handed the money to defendant or the co-defendant is of no consequence. See Cleveland v. State, supra.

3. The trial court did not err in permitting the State to introduce similar transaction evidence (consisting of previous cocaine sales transactions in the same general vicinity). Hunt v. State, 204 Ga. App. 799, 801 (2) (d) (420 SE2d 656).

4. In his fourth enumeration of error, defendant complains that the co-defendant was permitted to ask a police officer why the officer and the buyer sought out defendant on the night in question. In this regard, defendant asserts that his character was put in issue when the officer replied that defendant was a “potential target” in a drug investigation. In his fifth enumeration of error, defendant asserts the trial court erred in permitting a police officer to give “hearsay” testimony, to wit: that the buyer told him that it would be possible to purchase cocaine from defendant. We find no reversible error in either instance inasmuch as the evidence explained the circumstances leading to defendant’s arrest. Frazier v. State, 195 Ga. App. 599, 600 (4) (394 SE2d 396) (officer’s testimony that he was told defendant Frazier would be able to supply him with cocaine deemed admissible to explain circumstances leading to defendant’s arrest).

In passing, we note that in each instance the testimony was offered to explain why the officer and the buyer sought out defendant in the first place and that the trial court gave a cautionary instruction to that effect. We also note that the buyer and a police officer positively identified defendant as the perpetrator of the crime; that the buyer testified that cocaine was obtained from defendant’s automobile; that, although defendant denied that he sold cocaine to the buyer, he admitted he was present when the sale took place and that he shook hands with the buyer; and that similar transaction evidence demonstrated that defendant previously sold cocaine in the same general vicinity (see Division 3). Under these circumstances, it is highly probable that the testimony of the officer (that the buyer told him it would be possible to purchase cocaine from defendant and that defendant was a “potential target” of a drug investigation) did not contribute to the jury’s verdict. Osborne v. State, 193 Ga. App. 276, 277 (3) (387 SE2d 383); Harrison v. State, 187 Ga. App. 268, 269 (2) (370 SE2d 7). Accordingly, we find no ground for reversal.

Decided April 23, 1993.

Michael M. White, for appellant.

Daniel J. Porter, District Attorney, Thomas N. Davis, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


author: Johnson, Judge.

text:
    A93A0142.
    BRANTLEY v. THE STATE.
    (431 SE2d 159)
   Johnson, Judge.

Shannon Brantley appeals from his conviction of child molestation and from the denial of his motion for a new trial. In his sole enumeration of error, Brantley contends that the trial court erred in denying his motion for a new trial based upon newly discovered evidence. This contention is without merit. “It is incumbent on a party who asks for a new trial on the ground of newly discovered evidence to satisfy the court: (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness. Failure to show any one requirement is sufficient to deny a motion for new trial.” (Citations and punctuation omitted.) Tims v. State, 168 Ga. App. 409, 411 (2) (309 SE2d 405) (1983). The newly discovered evidence in this case was a report of a physical examination of the victim conducted approximately three months after the alleged incident of molestation. This report revealed that there was a tiny opening in the victim’s hymen and no evidence of irritation or redness. The indictment alleged, and the evidence at trial showed, that Brantley committed child molestation by fondling the victim. Because there was no evidence presented showing that Brantley had penetrated the victim’s vagina, the health report was neither exculpatory nor material. See Assad v. State, 195 Ga. App. 692, 693 (1) (394 SE2d 617) (1990). Because it is unlikely that the admission of the report would have produced a different verdict, the trial court did not abuse its discretion in denying Brantley’s motion for a new trial.

Decided April 27, 1993.

Andrew, Threlkeld & Thompson, Richard S. Thompson, for appellant.

Richard A. Malone, District Attorney, Samuel H. Altman, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, J., and Senior Appellate Judge John W. Sognier concur.


text:
    A93A0754.
    EBERHART v. THE STATE.
    (431 SE2d 158)
   Johnson, Judge.

Andrew Eberhart appeals from his convictions of possession of cocaine with intent to distribute and possession of marijuana with intent to distribute. Eberhart’s sole argument is that there was insufficient evidence that he was in possession of either the cocaine or marijuana.

The evidence shows that police officers executed a search warrant at an apartment leased in the name of Savina Huff. The police found Huff, Eberhart and a child in the apartment. One of the officers testified that Eberhart had a personal relationship with Huff and lived in the apartment with her. The apartment has two bedrooms. The master bedroom contained adult male and female clothing and appeared to be occupied by Eberhart and Huff. The other bedroom was occupied by the child. In the master bedroom, at the foot of the bed, the police found a brown paper bag containing 18 individually packaged “rocks” of “crack” cocaine, a larger chunk of crack cocaine which could be cut into approximately 25 more rocks, and 23 plastic bags of marijuana. Next to the brown paper bag the police found a locked briefcase. Eberhart either unlocked the briefcase for the police or gave them the combination to unlock it. Inside the briefcase the police found marijuana stems and residue, finger scales typically used to weigh marijuana, a single-edged razor blade, two $100 bills and an envelope addressed to Eberhart at the apartment. In a kitchen cabinet the police found a bowl containing a bag of cocaine, a razor blade and three bags of marijuana; they also found a number of empty plastic bags similar to those used to package the individual rocks of crack found in the bedroom.

Decided April 27, 1993.

Janet S. Willy, for appellant.

Harry N. Gordon, District Attorney, for appellee.

The evidence authorized the jury to conclude that Eberhart was in joint possession of the premises with Huff; the totality of the evidence was such as to be inculpatory of Eberhart without being exculpatory of Huff because the jury was authorized to find that they shared non-exclusive and joint possession of the drugs. Cantrell v. State, 204 Ga. App. 330, 331 (419 SE2d 141) (1992); Mobley v. State, 190 Ga. App. 771, 773 (1) (380 SE2d 290) (1989). The equal access rule applies for the most part to areas which are open, notorious and easily accessible to other persons. Cantrell, supra. The drugs were found in a bedroom and a kitchen in areas accessible to the occupants of the apartment and not to others. Reviewing the evidence in the light most favorable to the jury’s verdict, we find that a rational trier of fact could have found Eberhart guilty of the two charges beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Blackburn, J., and Senior Appellate Judge John W. Sognier concur.


author: Judge John W. Sognier.

text:
    A93A0033.
    SPENCER v. SOUTHTRUST BANK OF ATLANTA.
    (430 SE2d 853)
   Judge John W. Sognier.

Appellee-plaintiff made a loan to appellant-defendant which was evidenced by a promissory note. A written guaranty of appellant’s note was executed by Goulding Place Developers, Inc. (Goulding) and, as security for its guaranty, Goulding gave a security deed to its real property. Thereafter, appellant defaulted on his note and Goulding defaulted on its guaranty. Pursuant to the power of sale in the security deed, appellee foreclosed on Goulding’s property. The proceeds from the foreclosure sale were not sufficient to cover the entire unpaid balance due on appellant’s note. Although appellee did not seek confirmation of the foreclosure sale, it initiated the instant action to recover the remaining unpaid balance from appellant. Cross-motions for summary judgment were filed as to whether the lack of confirmation of the foreclosure sale was a bár to the action. The trial court held that it would not bar the instant action and granted summary judgment in favor of appellee. Appellant appeals from this order of the trial court.

The confirmation statute, OCGA § 44-14-161, “is in derogation of the common law and must be strictly construed. [Cits.]” First Nat. Bank & Trust Co. v. Kunes, 128 Ga. App. 565, 566 (1) (197 SE2d 446), aff’d, 230 Ga. 888 (199 SE2d 776) (1973). The purpose of this statute “is to protect debtors from deficiency judgments when the forced sale of their property brings less than the fair market value. [Cit.]” (Emphasis supplied.) Commercial Exchange Bank v. Johnson, 197 Ga. App. 529, 530 (1) (398 SE2d 817) (1990). “ ‘A deficiency judgment is the “imposition of personal liability on [the] mortgagor for [the] unpaid balance of [the] mortgage debt after foreclosure has failed to yield [the] full amount of [the] due debt.” (Cit.)’ [Cit.]” C. K. C., Inc. v. Free, 196 Ga. App. 280, 282 (2) (395 SE2d 666) (1990).

Appellant and Goulding are debtors as to appellee. However, appellant is not a mortgagor as to the property which appellee sold at the foreclosure sale. The real property was owned by Goulding and the security deed was given to secure Goulding’s guaranty. Enforcement of the guaranty as between appellee and Goulding would have no bearing on appellant’s personal liability to appellee on his note. Under OCGA § 10-7-20, appellee “may release or compound with [Goulding] without releasing” appellant. “To ‘compound’ ... is ‘to compromise, to effect a composition, to obtain discharge from a debt by the payment of a smaller sum.’ ” Williams-Thompson Co. v. Williams, 10 Ga. App. 251, 253 (4) (73 SE 409) (1912). By foreclosing on the property and failing to obtain confirmation, appellee may have compounded with Goulding and released Goulding from further liability on its guaranty. However, the foreclosure and failure to obtain confirmation did not release appellant from further liability on his note. “The holder of a note may compound with the surety thereon without releasing the principal. [Cits.]” Gilstrap v. Smith, 101 Ga. 120, 121 (28 SE 608) (1897).

Goulding is the mortgagor of the property which was sold at the foreclosure sale and the foreclosure sale was conducted as the result of Goulding’s default on its guaranty. Under these circumstances, enforcement of appellant’s personal liability on the note would not result in a “deficiency judgment” against him. The instant .action is merely a suit on a note after appellee, in its capacity as creditor, has compounded with Goulding, in its capacity as guarantor. It follows that the trial court correctly granted summary judgment in favor of appellee.

Decided April 14, 1993 —

Reconsideration denied April 28, 1993

Peterson, Dillard, Young, Self & Asselin, Steven L. Polk, Frank L. Wilson III, James M. LaChance, for appellant.

Kitchens, Kelley & Gaynes, Mark A. Kelley, for appellee.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A93A0388.
    MOON v. THE STATE.
    (431 SE2d 128)
   McMurray, Presiding Judge.

Defendant was indicted for burglary in that “without authority and with intent to commit a theft therein [he] did enter a dwelling house of another. ...” The evidence adduced at a jury trial revealed the following: On April 1, 1991, George Crowe (“the victim”) returned home and, before entering the house, he looked through a window and noticed an intruder inside the house carrying a shotgun. The victim summoned the police and Sergeant Harry W. White of the City of Morrow Police Department arrived at the scene, entered the victim’s home and discovered defendant in a bathroom splashing water on his face. Sergeant White searched defendant and found several keys in defendant’s possession. One of the keys appeared to be newly cut, so Sergeant White tested it in the lock of the victim’s door. The key. unlocked the victim’s door and the sergeant informed another officer of his discovery. Defendant then stated that it was his house key and that “me and [the victim] have the same front door lock, because my key opens his door.” Sergeant White discovered that the victim and defendant were acquainted, but that defendant did not have permission to enter the victim’s house.

Defendant was found guilty of burglary. This appeal followed. Held:

1. Defendant contends the trial court erred in allowing the State to introduce evidence of his statement to Sergeant White, i.e., “me and [the victim] have the same front door lock, because my key opens his door.” Defendant argues that the statement was made in violation of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694), and that the State failed to produce the statement within ten days of trial in violation of his OCGA § 17-7-210 demand.

(a) Even if the evidence indicates that defendant’s statement to Sergeant White regarding the key was made while defendant was in custody (see Crum v. State, 194 Ga. App. 271, 272 (390 SE2d 295)), the evidence establishes that the statement was made by defendant voluntarily and not in response to any form of questioning or interrogation. In this vein, Sergeant White testified that defendant spontaneously made the statement in response to Sergeant White’s statement to another law enforcement officer (while at the scene of the initial investigation) that the key unlocked the victim’s door. “ ‘(T)he necessity of administering Miranda warnings exists only when the individual is interrogated while in custody.’ Ramos v. State, 198 Ga. App. 65, 66 (2) (400 SE2d 353).” McClendon v. State, 201 Ga. App. 262, 264 (1b) (410 SE2d 760). Consequently, Miranda v. Arizona, supra, provides no basis for excluding defendant’s statement to Sergeant White regarding the key to the victim’s front door. See Cash v. State, 224 Ga. 798, 799 (1) (164 SE2d 558); Brown v. State, 183 Ga. App. 476, 478 (2) (359 SE2d 233).

(b) “ ‘OCGA § 17-7-210 (Code Ann. § 27-1302) provides in pertinent part: “(b) If the defendant’s statement is oral or partially oral, the prosecution shall furnish, in writing, all relevant and material portions of the defendant’s statement . . . (d) If the defendant’s statement is oral, no relevant and material (incriminating or inculpatory) portion of the statement of the defendant may be used against the defendant unless it has been previously furnished to the defendant, if a timely written request for a copy of the statement has been made by the defendant.” ’ (Emphasis supplied.) Van Kleeck v. State, 250 Ga. 551 (1) (299 SE2d 735).” Cook v. State, 199 Ga. App. 14, 16 (4), 17 (404 SE2d 128). In the case sub judice, there is no dispute that defendant filed a timely request for copies of any statement he made while in police custody. It is also undisputed that the State produced copies of statements made by defendant while in police custody prior to trial. However, the State’s attorney explained at trial that she did not notify defense counsel of defendant’s statement to Sergeant White regarding the key to the victim’s home because she first learned of the statement on the morning of trial when Sergeant White appeared to testify. Relying on these circumstances, the State contends there was no harm in admitting the newly discovered statement into evidence, arguing that it was given to defense counsel as soon as possible and that defense counsel was given an opportunity to question Sergeant White outside the presence of the jury before admission of the statement into evidence. See OCGA § 17-7-210 (e) and Broomall v. State, 260 Ga. 220, 221 (2) (391 SE2d 918).

We do not agree that the statement given to Sergeant White by defendant was newly discovered within the meaning of OCGA § 17-7-210 (e). There is no question that the statement was known to law enforcement officers long before trial and the record discloses no reason why the statement was not made available to the State’s attorney prior to trial. However, we find no harmful error.

Decided April 9, 1993 —

Reconsideration denied April 28, 1993.

Summer & Summer, Daniel A. Summer, for appellant.

Robert E. Keller, District Attorney, Deborah C. Benefield, Assistant District Attorney, for appellee.

“ ‘[I]n Wallin v. State, 248 Ga. 29 (279 SE2d 687) (1981), where the state similarly provided the defendant with an incomplete in-custody statement, the Supreme Court applied the “highly probable that it did not contribute to the verdict” test and found the error harmless.’ Dickey v. State, 179 Ga. App. 383, 384 (1), 385 (346 SE2d 864).” Cook v. State, 199 Ga. App. 14, 16 (4), 17, supra. The circumstances of the case sub judice demand the same result. Defendant was caught in the victim’s house without authority. Further, there is evidence that defendant had unauthorized access to the victim’s key before the burglary; that the victim’s house had been searched by an intruder on the day defendant was caught in the victim’s house and that defendant was in possession of a key which matched the lock to the door of the victim’s house. This evidence was more than sufficient to meet the standard of proof required under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Thus, we find it highly probable that introduction of defendant’s custodial statement to Sergeant White did not contribute to the verdict.

2. Defendant asserts the general grounds, arguing the State failed to prove he entered the victim’s house with intent to commit a theft. This contention is without merit.

“ ‘ “(T)he presence of valuables inside the premises can support an inference of intent to steal [cit.], particularly when no other motive is apparent. [Cit.] The evidence supported the verdict.” Parrish v. State, 141 Ga. App. 631 (1) (234 SE2d 174) (1977).’ Green v. State, 158 Ga. App. 321 (1) (279 SE2d 763). See also Fennell v. State, 159 Ga. App. 194, 195 (283 SE2d 72); Loury v. State, 147 Ga. App. 152 (1) (248 SE2d 291); and Ealey v. State, 139 Ga. App. 604, 605 (2), 607 (229 SE2d 86).” McNair v. State, 190 Ga. App. 412 (1), 413 (379 SE2d 424).

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A0671.
    HOWARD v. JONAH et al.
    (430 SE2d 833)
   McMurray, Presiding Judge.

Plaintiff Howard, while an inmate at the Men’s Correctional Institution in Hardwick, Georgia (“the prison”), filed an action against two prison physicians (defendants Jonah and Cooper) and the warden of the prison (defendant Secklinger), alleging that he was subjected to cruel and unusual punishment due to deliberate indifference to his medical condition and that he received substandard medical care for foot and back injuries. Specifically, plaintiff alleges that defendants ignored his medical condition and that they did not immediately provide him with tennis shoes, a back brace and a cane as prescribed by “the Grady Hospital Physical Therapy Clinic and Dr. Pugh at GD & CC Jackson due to a lower Back Problem and Foot Problem.”

Defendants denied the material allegations of the complaint and, in response to an oral motion to dismiss asserted by defendants at a hearing, the trial court entered the following order: “This case is one for medical malpractice or professional negligence against prison doctors and other prison officials. As such, the complaint is subject to the pleading requirements set forth in O.C.G.A. § 9-11-9.1. Said Code section requires that in actions for medical malpractice the plaintiff must attach to the complaint an affidavit of an expert setting forth an opinion that the defendant violated the standard of care, setting forth at least one specific negligent act or omission and the factual basis therefor. Because plaintiff’s compláint fails to attach this affidavit, the complaint should be dismissed. . . . However, in deference to plaintiff’s pro se status, the Court will adopt the suggestion of defendants’ counsel, with which plaintiff agreed at the hearing, and will allow plaintiff 30 days from the date of entry of this Order in which to amend his complaint by filing with the Clerk of this Court the affidavit required by O.C.G.A. § 9-11-9.1.”

Plaintiff filed an unsworn document entitled “Affidavit,” in support of his complaint purporting to comply with the trial court’s order allowing him to amend his complaint within 30 days. The trial court found this document insufficient under OCGA § 9-11-9.1 and dismissed plaintiff’s complaint “with prejudice.” This appeal followed. Held:

1. Any complaint alleging professional malpractice must include “an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” OCGA § 9-11-9.1 (a). An unsworn document “can not be regarded as an affidavit.” Redwine Bros. v. Jarrell, 14 Ga. App. 294 (2) (80 SE 728). In the case sub judice, the “Affidavit” plaintiff filed in support of his complaint is an unsworn document and is thus insufficient to satisfy the requirements of OCGA § 9-11-9.1 (a). Consequently, the trial court did not err in dismissing any professional malpractice claims asserted in plaintiff’s complaint. However, the trial court erred in dismissing plaintiff’s complaint in its entirety as the allegation that plaintiff was subjected to cruel and unusual punishment due to deliberate indifference to his medical condition remains unresolved.

Decided April 7, 1993 —

Reconsideration denied April 28, 1993

Edgar W. Howard, pro se.

Michael J. Bowers, Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, William F. Amideo, Terry L. Long, Assistant Attorneys General, Tinkler & Groff, William P. Tinkler, Jr., for appellees.

2. Other grounds asserted in plaintiff’s enumerations of error and brief either provide no basis for review or are without merit.

Judgment affirmed in part and reversed in part.

Beasley, P. J., and Cooper, J., concur.

       Defendant asserts his action, pro se, on a form entitled, “Inmate Form for Civil Action.” In a section of the form complaint entitled, “Nature of Action,” the following appears: “tort Action Medical Malpractice Cruel & Unusual punishment Deliberate indifference.”

       In a portion of the form complaint provided for “legal argument,” plaintiff cites Estelle v. Gamble, 429 U. S. 97 (97 SC 285, 50 LE2d 251), where the United States Supreme Court recognized that deliberate indifference to an inmate’s serious medical needs may constitute cruel and unusual punishment in violation of the Eighth Amendment and authorize a civil rights action under 42 USC § 1983.


author: Blackburn, Judge.

text:
    A93A0878.
    OSTA v. MORAN.
    (430 SE2d 837)
   Blackburn, Judge.

On April 5, 1991, appellant, Salim M. Osta, M.D., P.C., A Georgia Corporation d/b/a Oncology Medical Clinic (Clinic) and Antonio Moran, Jr., M.D., entered into an agreement titled “Employment Agreement” (Agreement). Thereafter, Moran filed a declaratory judgment action seeking, among other things, a declaration that the noncompetition covenant contained in the Agreement was invalid and unenforceable. The Clinic appeals from an order of the Superior Court of Glynn County which held that the noncompetition covenant was invalid because it was overbroad in restriction. The covenant contained the following language: “14. Noncompetition. Upon the termination of the Doctor’s employment hereunder for any reason whatsoever, the Doctor shall not, for a period of two years thereafter, except with the written consent of the [Clinic], engage in the practice of medicine within a 50-mile radius of any office operated by the [Clinic] for the practice of medicine. This provision shall not terminate at the time Doctor becomes a shareholder in the corporation, should same occur.”

1. The Clinic asserts that the trial court erred in applying an overly restrictive standard in determining the validity of the noncom-petition covenant. The Clinic argues that the Agreement was an employment agreement and a sale of business agreement. Its argument is based on the portion of the Agreement which offers Moran (referred to as the employee in the Agreement) the option to purchase 50 percent of the outstanding stock of the Clinic, at the end of two years, conditioned upon his good standing with the Clinic as an employee with no violations of any provision of the Agreement. The option is further conditioned upon Moran’s ability to pay the purchase price for the stock which was to be determined at the time of the sale according to one of two possible formulas.

The Agreement contains an option to purchase 50 percent of the stock of the Clinic. The option is not available until a future date and is conditioned upon the occurrence or nonoccurrence of specific events. “An agreement to reach an agreement is a contradiction in terms and imposes no obligation on the parties thereto.” (Citation and punctuation omitted.) Russell v. City of Atlanta, 103 Ga. App. 365, 367 (119 SE2d 143) (1961). “Unless all the terms and conditions are agreed on, and nothing is left to future negotiations, a contract to enter into a contract in the future is of no effect.” (Citation and punctuation omitted.) Id. See also OCGA § 13-3-2.

The Agreement before this court does not contain all terms and conditions regarding the sale of the Clinic’s stock and it clearly contemplates future negotiations. Therefore, this court finds that the Agreement was not a contract for the sale of a business and that it is exactly what it purports to be, an “Employment Agreement.” Furthermore, this court declines to adopt the Clinic’s argument that doctors are not “employees” and, therefore, the court should apply the “blue penciling” standard to its employment contracts. The cases cited by the Clinic for this proposition are distinguishable from the present case.

In Rash v. Toccoa Clinic Med. Assoc., 253 Ga. 322 (320 SE2d 170) (1984), the court distinguished an employment agreement from the partnership agreement before it. “In a partnership agreement. . . as opposed to an employment agreement, the consideration flows equally among the contracting parties. ... [A] partner has not only restricted himself, but he has also exacted from each of the other contracting parties a like restriction.” Id. at 325. This is not the case before us. Similarly, in Roberts v. Tifton Med. Clinic, 206 Ga. App. 612 (426 SE2d 188) (1992), we determined that the parties were of equal bargaining position, not merely because they were physicians, but because the physician who had violated the covenant, Roberts, was president of the corporation that owned the clinic. There, we determined that he was an equal bargainer by virtue of his high-paying salary within the firm, his voting ability in the firm, and the fact that he was a shareholder in the corporation. Again, this is not the case before us.

In the present case, Moran held no official status with the Clinic other than that of employee; he was not an owner, he held no stock, he had no voting rights. The Agreement determines Moran’s benefits and responsibilities as an employee. This court declines to create a bright line distinction between physicians and employees. The trial court applied the appropriate standard by declining to blue pencil or sever the portions of the Agreement that it determined were invalid as overbroad.

2. The Clinic’s second enumeration of error asserts, that the trial court erred in its determination that the restrictive covenant in the Agreement was geographically overbroad and, therefore, unenforceable. “ ‘Georgia law prohibits contracts or agreements, tending to defeat or lessen competition or in general restraint of trade. However, covenants against competition in employment contracts are considered in partial restraint of trade, and they are enforceable if strictly limited in time and territorial effect, and if they are otherwise reasonable considering the business interests of the employer sought to be protected and the effect on the employee.’ [Cit.]” Koger Properties v. Adams-Cates Co., 247 Ga. 68 (274 SE2d 329) (1981).

The Georgia Supreme Court has established guidelines for the determination of the reasonableness of a restrictive covenant. “[T]he three-element test of duration, territorial coverage, and scope of activity [is used], not as an arbitrary rule but as a helpful tool in examining the reasonableness of the particular factual setting to which it is applied.” Watson, supra at 673. The application of the test is to be made by the court, as a matter of law. Rollins Protective Svcs. Co. v. Palermo, 249 Ga. 138 (287 SE2d 546) (1982).

While it is true that a sufficiently limited restriction need not specify exact geographical boundaries, “[a] restriction relating to the area in which the employer does business is generally unenforceable due to overbreadth, unless the employer can show a legitimate business interest that will be protected by such an expansive geographic description.” W. R. Grace & Co. v. Mouyal, 262 Ga. 464, 466 (422 SE2d 529) (1992). In the present case, the Clinic cannot justify the potentially extensive geographic limitation placed upon Moran. No matter where Moran sets up his practice for the next two years, the Clinic could move within 50 miles of that location and cause Moran to move pursuant to the terms of the Agreement. The only interest protected by the present restriction is that of the Clinic to avoid competition, which is not a legitimate business interest. Howard Schultz & Assoc. v. Broniec, 239 Ga. 181, 184 (236 SE2d 265) (1977). For the reasons set out above, the order of the trial court is affirmed.

Decided April 12, 1993 —

Reconsideration denied April 28, 1993

Fendig, McLemore, Taylor & Whitworth, Gilbert C. McLemore, Jr., for appellant.

C. Nelson Jarnagin, Randall M. Clark, for appellee.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.

       The Georgia Supreme Court has “noted that covenants in the sale of a business, unlike covenants in contracts of employment, can be blue penciled to make them valid.” Lyle v. Memar, 259 Ga. 209, 210 (378 SE2d 465) (1989). See also Watson v. Waffle House, 253 Ga. 671 (324 SE2d 175) (1985). If the Agreement is found to be unenforceable as written, the Clinic argues that this court should blue pencil the Agreement to make it enforceable.

       Id.

       The Clinic attempts to assert that it will not move its location in order to thwart Moran’s practice as long as Moran sets up his practice 50 miles from the Clinic’s present location. However, this is not in the wording of the Agreement and cannot be considered by this court. OCGA § 13-2-2 (1).


text:
    A93A0087.
    MILLER v. THE STATE.
    (430 SE2d 873)
   Judge John W. Sognier.

Appellant was tried before a jury and found guilty of burglary. Pursuant to the grant of an out-of-time appeal, he appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict of guilt.

1. Appellant enumerates the general grounds.

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses. Cox v. State, 205 Ga. App. 375 (1) (422 SE2d 68) (1992); Alexander v. State, 200 Ga. App. 411 (1) (408 SE2d 485) (1991). The victim identified appellant as the stranger she discovered in her garage holding various items of her property who, when confronted, dropped the items and fled. “ ‘(T)he presence of valuables inside the premises can support an inference of intent to steal (cit.), particularly when no other motive is apparent. (Cit.)’ ” Green v. State, 158 Ga. App. 321 (1) (279 SE2d 763) (1981). A rational trier of fact could reasonably have found from the evidence adduced below proof of appellant’s guilt beyond a reasonable doubt. Green v. State, supra. “ ‘ “[T]he fact that [appellant] may have failed in accomplishing his apparent purpose does not render a finding of burglary improper. (Cits.)” (Cits.)’ [Cit.]” Prothro v. State, 186 Ga. App. 836, 837 (1) (368 SE2d 793) (1988). The enumeration of the general grounds is. without merit.

Decided April 28, 1993.

M. Byron Morgan, for appellant.

Robert E. Keller, District Attorney, Gina C. Naugle, Assistant District Attorney, for appellee.

2. “The contention that trial counsel jeopardized appellant’s right to appeal his [conviction] is obviously without merit. We have ‘reached the merits of (this appeal). . . . Under these facts, there is no way in which the appellant could show . . . prejudice.’ [Cit.] It follows that the trial court did not err in denying appellant’s motion for new trial [on the ground of ineffective assistance of trial counsel].” Southerton v. State, 205 Ga. App. 366, 367 (422 SE2d 251) (1992).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A93A0059.
    BAULDING v. TURNER.
    (430 SE2d 836)
   McMurray, Presiding Judge.

Following the death of his wife, Doris Ramey Turner, appellee M. H. Turner filed an application for 12 months’ support. The administrator of Mrs. Turner’s estate filed a caveat. The case made its way to the Superior Court of Polk County and a jury awarded Turner the sum of $27,696.50. To satisfy the award, the jury set aside a one-half undivided interest in a house and two other parcels of real estate, a curio cabinet, a glass top table, mahogany chairs and bedroom furniture. Judgment was entered accordingly and the administrator moved for a new trial. The motion for a new trial was denied and the administrator appealed. Held:

The administrator asserts that the evidence was not sufficient to support the jury’s award. We disagree.

“As the surviving spouse of the deceased, [Turner] was entitled as a matter of law to a year’s support. OCGA § 53-5-2 (b); Gentry v. Black, 256 Ga. 569, 570 (351 SE2d 188) (1987); Byrd v. McKinnon, 189 Ga. App. 768, 769 (377 SE2d 686) (1989). The amount of the award is a separate question to be determined under the criteria of OCGA § 53-5-2 (c), which provides that the amount should be ‘sufficient to maintain the standard of living that the surviving spouse . . . had prior to the death of the (decedent),’ considering support available from the applicant’s separate estate, earning capacity, any other sources apart from a year’s support, and ‘(s)uch other relevant criteria as the court deems equitable and proper.’ Baker v. Baker, 194 Ga. App. 477, 478 (390 SE2d 892) (1990).” Johnson v. Johnson, 199 Ga. App. 549, 550 (2) (405 SE2d 544). See also Bell v. Bell, 201 Ga. App. 218 (411 SE2d 47).

Decided April 9, 1993 —

Reconsideration denied April 29, 1993.

Kenneth J. Jones, for appellant.

Daniel B. Simon III, for appellee.

In light of evidence concerning Turner’s sources of income, debts, expenses and obligations (including needed household repairs), advanced age and health, and in light of stipulations reflecting the value of the property awarded by the jury, we conclude that the evidence was sufficient to support the year’s support award. Bell v. Bell, 201 Ga. App. 218, supra; Johnson v. Johnson, 199 Ga. App. 549, supra. Accordingly, we find no error.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A0293.
    HARRIS v. HANNA CREATIVE ENTERPRISES.
    (430 SE2d 846)
   Johnson, Judge.

Johnny Harris was involved in a motor vehicle collision with a driver employed by Hanna Creative Enterprises d/b/a Domino’s Pizza. Harris executed a release of all claims against the employee in exchange for $10,000. Harris then filed a personal injury action against Hanna, claiming that it was vicariously liable for the alleged negligence of its employee and directly liable for having negligently trained and supervised the driver. Based on Harris’ release of all claims against the employee, Hanna moved for partial summary judgment on the vicarious liability claims. The trial court granted the motion, ruling that Harris’ release of all claims against the employee also discharged Hanna from any vicarious liability. Hanna then moved for summary judgment on the remaining direct liability claims for negligent training and supervision of drivers. The court granted that motion, finding, among other things, that Harris had not filed a response to Hanna’s motion. Harris appeals.

1. Harris contends that the court erred in granting summary judgment to Hanna on the vicarious liability claims. Harris relies on the ruling in Posey v. Med. Center-West, 257 Ga. 55 (354 SE2d 417) (1987), that a general release given to one joint tortfeasor does not release all other joint tortfeasors. Harris’ reliance on Posey is misplaced because, as to the vicarious liability claims, Hanna and its employee are not joint tortfeasors. “The legal concept of joint tortfeasors is classically understood to mean those individuals whose separate and distinct acts of negligence concur to proximately produce an injury. . . . [A] negligent employee and his vicariously liable employer are not joint tortfeasors in the classic sense, in that the employer has committed no separate and distinct act of negligence and the employee has no right of contribution against his employer.” (Citations and punctuation omitted.) Gay v. Piggly Wiggly Southern, 183 Ga. App. 175, 176-177 (1) (358 SE2d 468) (1987). “Where the liability of the employer for the negligent acts of his employee rests only on the doctrine of respondeat superior, the employer becomes liable although he was not negligent because the employee’s negligence was imputed to him as a matter of law, and thus the nonnegligent employer is not a joint tortfeasor in the sense in which the phrase is ordinarily used.” (Citations and punctuation omitted.) C. W. Matthews Contracting Co. v. Studard, 201 Ga. App. 741, 743 (2) (412 SE2d 539) (1991). Because Hanna and its employee are not joint tortfeasors, Harris’ release of the employee also released Hanna from any claims based on the employee’s alleged negligence. Compare Brown v. Elder, 182 Ga. App. 352 (355 SE2d 740) (1987); Townsend v. Brantley, 163 Ga. App. 899, 900 (2) (296 SE2d 186) (1982); Giles v. Smith, 80 Ga. App. 540, 543 (1) (j) (56 SE2d 860) (1949). The trial court did not err in granting summary judgment to Hanna on the vicarious liability claims.

2. Harris complains that the court, in granting Hanna’s motion for summary judgment on the direct liability claims, erred in finding that he had not filed a response to the motion. Harris argues that at the time the court entered its order, he still had one day to file a response. This argument is without merit. Harris was required to file a response to the motion within thirty days of the date it was filed (Uniform Superior Court Rule 6.2), plus an additional three days because Hanna served the motion by mail (OCGA § 9-11-6 (e)). It is clear from the record that Hanna did not file a response within the required thirty-three days. The court entered its order on the thirty-fourth day after the motion was filed. Harris does not claim, and the record does not reveal, that he ever filed a response to the motion. The trial court did not err in finding that Harris did not respond to the motion.

Moreover, the court did not grant Hanna’s motion for summary judgment as to the direct liability claims based solely on the fact that Harris did not respond to the motion. In its order, the court states that it considered all pleadings, affidavits and discovery in the record. Having reviewed the entire record, we find that there are no genuine issues of material fact as to the direct liability claims and therefore the court did not err in granting summary judgment.

Decided April 13, 1993 —

Reconsideration denied April 29, 1993

Pat D. Dixon, Jr., for appellant.

Gilbert, Harrell, Gilbert, Sumerford & Martin, Wallace E. Harrell III, Lisa S. Godbey, Whelchel, Brown, Readdick & Bumgartner, John E. Bumgartner, for appellee.

Judgment affirmed.

Blackburn, J., and Senior Appellate Judge John W. Sognier concur.


text:
    A91A2148.
    JORDAN et al. v. CITY OF ROME et al.
    (432 SE2d 124)
    Decided April 29, 1993.

      Robins, Kaplan, Miller & Ciresi, Daniel A. Ragland, William H. Stanhope, for appellants.

      Brinson, Askew, Berry, Seigler, Richardson & Davis, Robert M.

      Brinson, J. Anderson Davis, Robert N. Farrar, for appellees...
   Blackburn, Judge.

In Jordan v. City of Rome, 203 Ga. App. 662 (417 SE2d 730) (1992), this court reversed in part the trial court’s grant of summary judgment for the appellees, holding that no special relationship was required for liability of-municipalities with regard to provision of police protection in Georgia. This court affirmed the grant of summary judgment for the appellees on a claim alleging negligent and improper training of the radio dispatch officers.

In City of Rome v. Jordan, 263 Ga. 26 (426 SE2d 861) (1993), however, the Supreme Court upheld the affirmance of the grant of summary judgment on the claim regarding the training of the radio dispatch officers, but reversed the portion of this court’s judgment which reversed the trial court. Accordingly, our original judgment in Divisions 1 and 2 of Jordan v. City of Rome, supra, is vacated, and the judgment of the Supreme Court is hereby made the judgment of this court. The trial court’s judgment, therefore, is affirmed.

Judgment affirmed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Beasley, P. J., Cooper, Andrews, Johnson, JJ., and Senior Appellate Judge John W. Sognier concur.


text:
    A93A0049.
    JORDAN et al. v. TROWER.
    (431 SE2d 160)
   Judge John W. Sognier.

Jacqueline Trower brought suit against Mary Jordan and Christopher Elim, Jr., individually and as trustees and executors under the will of Carlton Ezekiel Reese, on a claim for injunctive and other relief and an accounting. After a jury rendered a verdict in favor of Trower, the court entered judgment for $9,000 in damages and $8,000 in attorney fees and ordered the defendants to turn the estate over to Trower. The defendants appeal from the judgment and from the court’s denial of their motion for new trial.

Reese died on November 20, 1989, leaving appellee, his daughter, as his only heir at law. In his will, which he had changed shortly before his déath, appellants were named as co-executors and co-trustees. After appellee’s caveat to the will was rejected by the probate court, the will was admitted to probate on April 12, 1990. Under the will, the decedent bequeathed his entire estate in trust to Keisha Trower, appellee’s 20-year-old daughter. Keisha Trower filed a renunciation of her interest in the estate on May 1, 1990. There being no successor beneficiary named in the will, appellee requested that appellants relinquish the estate to her as the heir at law. Appellants refused and indicated they intended to transfer the estate to Keisha free of the trust. Appellee then filed this action.

1. In three enumerations of error, appellants contend the trial court erred by denying their motion for new trial made on the ground that the evidence was insufficient to support the verdict. They contend the renunciation was invalid because Keisha previously had accepted property distributions from the estate. Alternatively, appellants maintain the renunciation should not be enforced because the outcome is contrary to the decedent’s intent and because the renunciation resulted from coercion.

OCGA § 53-2-115, which sets forth the procedure for renunciation of succession to interests in property, provides in pertinent part that “[t]he following shall bar the right to renounce as to the property: . . . [a]ny acceptance of property by a transferee.” Id. at (d) (2). Evidence was adduced that in December 1989, appellants disbursed approximately $460 to Keisha from the decedent’s accounts for her use in purchasing clothing for the funeral and for other expenses. On April 17, 1990, appellee tendered a check for this amount to appellants. Keisha testified that she asked appellee to draw this check on their joint account because she did not want her receipt of those funds to affect adversely her right to renounce her interest in the estate.

Possession and use of the testator’s property has been held to constitute acceptance of the bequest so as to bar a later renunciation when the possession occurred over a long period of time and indicated an intent to claim rights in the property, and when the belated attempt at renunciation impaired the rights of third-party creditors. Crumpler v. Barfield & Wilson Co., 114 Ga. 570 (40 SE 808) (1902) (14 years); King v. Skellie, 79 Ga. 147 (3 SE 614) (1887) (7 years); Daniel v. Frost, 62 Ga. 697 (1879) (20 years). In the case at bar, the beneficiary merely received a de minimis sum from the estate prior to the filing of the will for probate. She did not obtain, nor even seek, possession of the property of the estate as a whole and undertook no actions that would indicate an intention to assert an ownership interest in the property of the estate. Compare Crumpler, supra. Under these circumstances, the jury was authorized to conclude that Keisha Trower’s actions did not constitute the type of “acceptance” or possession of the property of the estate that would preclude her from timely renouncing her interest.

Appellants’ contention that the renunciation should not be permitted because it was contrary to the decedent’s intent to will his estate to his granddaughter is without merit “because the decedent is presumed to have executed his will with knowledge of the law that entitled his heirs to disclaim his testamentary bequests, [cit.], and thus was aware that his estate plan could be altered after his death if his beneficiar[y] exercised [her] renunciation right.” Brown v. Momar, Inc., 201 Ga. App. 542, 545-546 (2) (411 SE2d 718) (1991).

Finally, the record is devoid of support for appellants’ argument that the renunciation was procured by fraud. The evidence established that after conferring with appellee and an attorney, Keisha Trower executed the renunciation while away at college in Washington, D.C. Keisha testified that the decision was hers, that no one influenced her to renounce her interest, and that she felt that this outcome, rather than the recently executed will, reflected the decedent’s true wishes. Appellants provided no evidence to rebut this testimony other than their unsubstantiated speculations. Consequently, we hold the trial court did not err by denying appellants’ motion for new trial on the ground of sufficiency of the evidence.

2. Appellants contend the trial court’s decision to admit into evidence a letter from their counsel to appellee’s counsel was error because the letter contained a proposition made with a view to compromise and thus was inadmissible under OCGA § 24-3-37. We do not agree. The letter, written in response to a request from appellee’s counsel that the estate be turned over to appellee, stated appellants’ position that the renunciation had been coerced and indicated their intention to turn the assets of the estate over to Keisha Trower free of the trust. This contention is without merit, for there is no evidence of any effort to compromise. “[T]he plaintiff . . . simply made a demand [for distribution of the estate according to law] and there was a [response] which was not in the nature of a proposition made with a view to compromise. The [letter] does not indicate any effort of the parties to reach a [compromise]. [Cit.]” Campbell v. Mutual Svc. Corp., 152 Ga. App. 493, 494 (2) (263 SE2d 202) (1979). See Graves v. Graves, 252 Ga. 27, 28-29 (1) (310 SE2d 901) (1984); Progressive Life Ins. Co. v. Smith, 71 Ga. App. 157, 161 (2) (30 SE2d 411) (1944). The evidence was not required to be excluded under OCGA § 24-3-37 and was admissible to support appellee’s contention that appellants were stubbornly litigious and caused her unnecessary trouble and expense by forcing her to litigate her rights to the estate, see Progressive Life, supra, which was relevant to her claim for litigation expenses under OCGA § 13-6-11. See generally Altamaha Convalescent Center v. Godwin, 137 Ga. App. 394, 395-396 (2) (224 SE2d 76) (1976).

3. Appellants’ challenge to the admission of a letter concerning the payment of life insurance proceeds is likewise without merit. On cross-examination of appellant Elim, appellee’s counsel elicited the testimony, over objection, that Elim had received from counsel a letter demanding payment directly to Keisha of life insurance policies purchased by the decedent naming her as the beneficiary. Elim testified that he never responded to the letter. He testified further that he discovered records indicating that insurance policies had been purchased but did not locate the policies, and acknowledged that no insurance proceeds were paid to Keisha. The trial court did not abuse its discretion by concluding that this evidence was relevant to appellee’s claim of mismanagement of the estate and her petition for an accounting. See generally Southern R. Co. v. Lawson, 256 Ga. 798, 802 (4) (353 SE2d 491) (1987) (“The most acceptable test for relevancy is whether the evidence offered renders the desired inference more probable than it would be without the evidence. [Cits.]”).

4. Appellants also maintain the trial court erred by admitting into evidence the testimony of appellee’s witness concerning the value of a truck owned by the decedent without laying the proper foundation. Specifically, appellants contend the witness could not give an opinion as to value because he had not seen the truck. “Opinion evidence as to the value of an item, in order to have probative value, must be based upon a foundation that the witness has some knowledge, experience or familiarity with the value of the property in question or similar property and he must give reasons for the value assessed and also he must have had an opportunity for forming a correct opinion. [Cits.]” (Emphasis supplied; punctuation omitted.) Ricker v. Hopkins Chevrolet, 147 Ga. App. 358, 361 (248 SE2d 720) (1978). See OCGA § 24-9-66.

Decided April 29, 1993.

Brown & Hart, Carl C. Brown, Jr., for appellants.

Capes, Dunbar, Sanders, Bruckner & Clarke, Ziva P. Bruckner, for appellee.

In the case at bar, the witness detailed his years of experience in valuing and appraising used vehicles in his work in vehicle financing. Based on a hypothetical question setting forth the condition and features of the truck, he gave his opinion of its value. The witness having testified concerning his familiarity with the type of vehicle at issue, his opportunity for forming a correct opinion as to value was established, and the evidence was sufficient for consideration by the jury. See Long v. Marion, 182 Ga. App. 361, 364-365 (4) (355 SE2d 711) (1987). Any further question as to the value of his testimony then went to its weight and credibility, not its admissibility. See id. at 365 (4).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


author: Andrews, Judge.

text:
    A93A0093.
    BRIDGES v. THE STATE.
    (431 SE2d 164)
   Andrews, Judge.

Bridges was charged with one count of burglary and one count of theft by taking. He entered a plea of guilty on August 3,1992 and was sentenced to seven years, five years in prison and two years of probation. With respect to the burglary plea, the portion of the judgment entitled “Other Conditions of Probation” included a fine, probation fee and court costs. The order also stated that “[a] surcharge of $85 is to be paid for County Jail operation, staffing, and construction. . . . Restitution to be determined and paid to either victim or insurance carrier.”

1. In his first enumeration, citing OCGA §§ 17-14-8 through 17-14-10, Bridges argues that the trial court erred in ordering him to pay restitution in the absence of a presentence hearing, despite his request. In response, the State argues that Bridges’ argument is premature, since Bridges has not been ordered to pay a specific amount of restitution.

Cannon v. State, 246 Ga. 754 (3) (272 SE2d 709) (1980), is controlling. “We find that [OCGA §§ 17-14-8 through 17-14-10] contemplate a hearing and specific written findings by the court in determining whether it will order restitution and, if so, the amount thereof.” Cannon, supra at 756. The trial court did not comply with those requirements. “Under Patterson v. State, 161 Ga. App. 85, 86 (289 SE2d 270) (1982), the portion of the sentence imposing restitution must be reversed and the case remanded for a hearing on the issue and for entry of specific written findings pursuant to OCGA § 17-14-8.” Taylor v. State, 182 Ga. App. 494, 496 (4) (356 SE2d 216) (1987); see also Garrett v. State, 175 Ga. App. 400 (333 SE2d 432) (1985). Our conclusion that the findings under OCGA § 17-14-10 were necessary before ordering restitution is also consistent with the Supreme Court’s holding in Harris v. State, 261 Ga. 859 (1) (413 SE2d 439) (1992).

Decided April 29, 1993.

Lavender & Lavender, Robert W. Lavender, Michelle C. Feinberg, for appellant.

Lindsay A. Tise, Jr., District Attorney, John H. Bailey, Jr., Francis J. George, Assistant District Attorneys, for appellee.

2. In his second enumeration, citing Woods v. State, 204 Ga. App. 415 (2) (419 SE2d 513) (1992), Bridges claims, and the State concurs, that the trial court erred in ordering a surcharge for operation, staffing and construction of the county’s jail.

We agree. “There are no statutes which specifically authorize charging criminal defendants with the costs for operation, staffing and construction of jails. This case is very similar to and is controlled by Walden v. State, 258 Ga. 503, 504 (371 SE2d 852) (1988). We hold that the $185 fee is not taxable to Woods in the absence of specific statutory authority for imposing such a fee, and therefore reverse the trial court’s order to the extent it holds otherwise.” Woods, supra at 417.

Judgment affirmed in part, reversed in part, and remanded in part.

Pope, C. J., and Birdsong, P. J., concur.


text:
    A93A0159.
    BRINSON v. THE STATE.
    (430 SE2d 875)
   Judge John W. Sognier.

Appellant was tried before a jury and found guilty of burglary and aggravated sodomy. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts of guilt.

1. Over appellant’s hearsay objection, the investigating officer was permitted to relate the victim’s description of her assailant, given to the officer ten or fifteen minutes after the victim had been taken to the hospital. The trial court’s evidentiary ruling that her description came within the res gestae exception to the hearsay rule is enumerated as error.

This testimony as to what the victim told the witness very shortly after the attack was properly admissible as part of the res gestae pursuant to OCGA § 24-3-3. Haralson v. State, 234 Ga. 406, 407-408 (3) (216 SE2d 304) (1975); Barker v. State, 144 Ga. App. 339-340 (2) (241 SE2d 11) (1977). “The fact that some of the statements [might have been] in reply to questions of the [witness] would not render them inadmissible. [Cits.]” Littles v. State, 236 Ga. 651, 652 (2) (224 SE2d 918) (1976). “Such evidence should be admitted if it is relevant and made without premeditation. [Cit.] A trial [court’s] determination that evidence is admissible as part of the res gestae will not be disturbed unless it is clearly erroneous. [Cit.]” Robinson v. State, 197 Ga. App. 600, 601 (2) (399 SE2d 94) (1990). We find no error.

2. Over appellant’s “chain of custody” objection, the trial court admitted into evidence the test results of a medical rape evidence kit containing a blood sample and an alleged semen sample taken from the body of the victim. “The evidence shows that the blood [and other fluid] sample [s] [were] handled in the normal course of testing and there is nothing in the record that creates a suspicion that the [samples] tested [were] other than [those] taken from the [body of the victim].” Patterson v. State, 224 Ga. 197, 199 (2) (160 SE2d 815) (1968). “In view of the evidence as to the tamper-resistant nature of the materials and procedures used to send the [samples] by registered mail, and the absence of [any physical manifestations of] tampering, it appears to a reasonable certainty that the evidence which reached the crime laboratory [serologist] is the same as that which was [taken from the victim’s body]. . . . [I]t is obvious that one of the two officers who testified that he had mailed the [samples] has faulty recollection on this point. [However], none of the points argued by [appellant] amounts to evidence of tampering or cast[s] [any] doubt on the identity of the exhibits [so as] to amount to a broken chain of custody. [Cits.]” Richards v. State, 189 Ga. App. 146, 147 (1) (375 SE2d 278) (1988). “There being, at most, bare speculation of tampering or substitution, the trial court correctly admitted the [samples] into evidence. [Cit.]” Langham v. State, 196 Ga. App. 71, 72 (1) (395 SE2d 345) (1990). See also Mutcherson v. State, 179 Ga. App. 114 (345 SE2d 661) (1986).

3. Appellant was charged with the burglary of a motel room. At the close of the State’s evidence, he moved for a directed verdict of acquittal as to the burglary charge. The denial of that motion is enumerated as error.

Appellant argues that because he was a friend of the persons renting the motel room he had implied permission to enter through the open door. However, the lodgers testified that they had not given him permission to enter, but that they were on their way out when appellant knocked on their door. They told appellant that they were leaving and left with the door closed and locked. Appellant then entered the room when the motel maid, the victim of appellant’s sexual assault, left the door open while she was cleaning the room.

Decided April 29, 1993.

Charles R. Sheppard, for appellant.

Michael C. Eubanks, District Attorney, Richard E. Thomas, Nancy J. Berger, Assistant District Attorneys, for appellee.

“The essential elements of burglary [as proscribed by OCGA § 16-7-1 (a)] are unauthorized entry and intent to commit a theft or other felony. Without proof of the essential element of unauthorized entry, a burglary conviction cannot stand. [Cits.]” Caldwell v. State, 183 Ga. App. 110, 111 (1) (357 SE2d 845) (1987). “The [S]tate proved that the dwelling was entered without authority of the . . . lawful occupant. This was sufficient to allow the case to go to the jury for decision. . . .” Murphy v. State, 238 Ga. 725, 729 (2) (234 SE2d 911) (1977). In view of the direct testimony that appellant had no authority to enter the motel room, the trial court correctly denied his motion for directed verdict of acquittal. Dressler v. State, 158 Ga. App. 11, 13-14 (4) (279 SE2d 454) (1981).

4. Appellant enumerates the general grounds as to the aggravated sodomy count, arguing that the State failed to prove lack of consent.

“A person commits the offense of aggravated sodomy when he commits sodomy with force and against the will of the other person.” OCGA § 16-6-2 (a). The victim’s testimony was ample proof that the act of anal sodomy was committed with force and against her will. Robertson v. State, 184 Ga. App. 796 (1) (363 SE2d 43) (1987). Having reviewed the evidence in the light most favorable to the jury’s verdict, we conclude that a rational trier of fact could reasonably have found from the evidence adduced below proof of appellant’s guilt of aggravated sodomy beyond a reasonable doubt according to the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Clark v. State, 186 Ga. App. 882 (369 SE2d 282) (1988).

Judgments affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A93A0164.
    JONES v. THE STATE.
    (430 SE2d 877)
   Andrews, Judge.

Jones was convicted of possession of cocaine with intent to distribute and of obstruction of a police officer and appeals. In his sole enumeration of error, he claims that the evidence was insufficient to convict him.

Viewing the evidence most favorably to the verdict, it was that special agent Gregory Hobbs of the Thomasville-Thomas County drug squad received information from a confidential informant at 9:30 p.m. on January 24, 1992, regarding Jones’ activities at a trailer park in Coolidge. After receiving the call, Hobbs, who was in his marked patrol car with agent Mullins, contacted deputy sheriff Kornegay and sheriff’s posse members William and Eddie Brown and requested that they meet him and proceed with him to the trailer park.

The officers met and drove to the trailer park in three separate patrol cars. The first to arrive were William and Eddie Brown. They were followed by Kornegay, and then by Hobbs and Mullins.

When the first vehicle pulled into the driveway of the trailer park, Jones was sitting in his pickup truck. There was a group of about four people standing outside around a fire. Upon seeing the patrol car, Jones jumped out of his truck and ran to the left of one of the trailers. The officers chased Jones. None of the people standing around the fire ran away from the officers.

Jones ran in a crouched position with his hands held close to his body. After chasing Jones behind a trailer, Brown told Jones to stop and Jones complied. Hobbs then performed a pat-down search of Jones, during which $437, comprised in part of thirteen $20 bills, fourteen $10 bills, and twelve $1 bills, were found in his front pocket. One hundred and forty-two dollars were found in the ashtray of the pickup truck where Jones had been sitting in the form of five $20 bills, two $10 bills, three $5 bills, and seven $1 bills.

After the chase, the officers retraced Jones’ path of travel and found a container of crack cocaine in the path. The substance was divided into 17 pieces, was packaged in a plastic bag, and had a street value of about $340. There was no testimony that anyone had seen Jones in possession of the drugs, nor was there any testimony that anyone had witnessed Jones throwing it. The man who lived in the mobile home closest to where the drugs were found testified that the drugs on the ground did not belong to him and that he knew nothing about how the substance got there. There was no testimony that any person other than Jones had been seen in the area in which the drugs were found.

Jones testified at trial and denied that the drugs were his. He stated that on the evening in question people were standing around the fire, drinking and smoking marijuana. He testified that he ran when the police arrived because he was scared in that he was associating with people whom he knew to be in possession of drugs.

In Jones’ sole enumeration of error he argues that the evidence here was insufficient for conviction. He cites Prescott v. State, 164 Ga. App. 671 (297 SE2d 362) (1982), and argues that his mere presence near the contraband was insufficient evidence upon which to convict him and that other persons had an equal opportunity to commit the crime. He also claims that the existence of another reasonable explanation for the presence of the contraband on the ground bars his conviction here.

We find Jones’ arguments without merit. “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused. OCGA § 24-4-6. A reasonable hypothesis as used in this Code section refers only to such reasonable inferences as are ordinarily drawn by ordinary men in the light of their experience in everyday life; it does not mean that the act might by bare possibility have been done by someone else.” (Punctuation omitted.) Bean v. State, 204 Ga. App. 242, 243 (1) (418 SE2d 798) (1992).

Here, there was sufficient evidence to support the conviction. Jones jumped out of his truck and ran upon seeing the police officers. No one else in the area ran from the officers. There was no testimony that any other person was seen in the area in which the contraband was found. Furthermore, Jones was in possession of a large amount of money in small denominations.

“Thus, contrary to defendant’s contentions, the State was able to show more than defendant’s mere spatial proximity to the contraband. The evidence points toward defendant and only him. We hold sufficient evidence was presented to authorize the jury to disregard the only hypothesis offered by defendant and to authorize defendant’s conviction. . . .” (Citations and punctuation omitted.) Bean, supra at 243. There was no affirmative evidence that anyone other than Jones had an equal opportunity to commit the crime. Cochran v. State, 190 Ga. App. 884, 885 (1) (380 SE2d 319) (1989).

With regard to the charge of obstruction of a police officer, Jones argues that there is no evidence that he failed to comply with any request of the police officers. Appellant claims that there was no evidence that he “attempted to conceal or destroy evidence” as charged in the indictment and that therefore the evidence was insufficient. Based'on our conclusion above, we find this argument without merit. See generally OCGA § 16-10-24; Bean, supra at 243 (3).

The evidence was sufficient for conviction on both charges. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided April 29, 1993.

Whitehurst, Cohen & Blackburn, Steven B. Kelley, for appellant.

H. Lamar Cole, District Attorney, James E. Hardy, Mark E. Mitchell, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, C. J., and Birdsong, P. J., concur.


text:
    A93A0191.
    SCOTT v. THE STATE.
    (430 SE2d 879)
   McMurray, Presiding Judge.

Defendant was charged in a two-count indictment with aggravated assault in that he “did unlawfully make an assault upon the person of [the victim] with a certain knife, a deadly weapon, by cutting him . . .” (Count 1) and for theft by taking (Count 2). The evidence adduced at a jury trial reveals the following: During the afternoon of June 9, 1991, the victim chased the defendant and a confederate as the suspects fled a suspected crime scene. As the victim reached inside the suspects’ get-away vehicle, the defendant stabbed the victim several times with a knife or a nail file, wounding the victim’s arm. The jury found defendant guilty of aggravated assault and not guilty of theft by taking. This appeal followed the denial of defendant’s motion for new trial. Held:

1. In his first enumeration, defendant contends the trial court erred in failing to give his written request to charge on the lesser included offense of battery as set out in OCGA § 16-5-23.1 (a).

“The offense of battery is not necessarily a lesser included offense of aggravated assault. See Tuggle v. State, 145 Ga. App. 603, 604 (244 SE2d 131); accord Mathis v. State, 184 Ga. App. 455, 458 (361 SE2d 856). Although the element of physical or bodily harm is a requisite for battery (see OCGA § 16-5-23.1), where the physical or bodily harm is committed with a deadly weapon, simple battery is not a lesser included offense. Powell v. State, 140 Ga. App. 36 (230 SE2d 90). An issue of lesser included offense may arise in a case where the use of a deadly weapon is not necessarily alleged and proved (see Tuggle, supra), or where the character of the weapon is in question (see, e.g., Haun v. State, 189 Ga. App. 884 (377 SE2d 878)). However, where the indictment alleges assault with a deadly weapon and the evidence shows that an assault was committed with a deadly weapon, as in [the] case [sub judice], aggravated assault is proved beyond a reasonable doubt, and the evidence does not support a finding that the defendant committed a battery. Therefore, the trial court was not required to charge the jury on battery as a lesser included offense. See State v. Alvarado, 260 Ga. 563, 564 (397 SE2d 550). Compare Haun v. State, supra at 884. See also Doss v. State, 166 Ga. App. 361, 362 (304 SE2d 484).” Givens v. State, 199 Ga. App. 845 (1) (406 SE2d 272).

Decided April 29, 1993.

Fleming & Blanchard, Richard A. Ingram, Jr., Charles R. Sheppard, for appellant.

Michael C. Eubanks, District Attorney, Richard E. Thomas, J. Wade Padgett, Assistant District Attorneys, for appellee.

2. Next, defendant contends the trial court erred in failing to give his written request to charge on the lesser included offense of simple •battery as set out in OCGA § 16-5-23.

“ ‘The State or the accused may . . . request (the trial court) to charge on lesser crimes that are included in those set forth in the indictment or accusation, and (the) failure to so charge as requested, if the evidence warrants such requested charge or charges, shall be error.’ (Emphasis supplied.) State v. Stonaker, 236 Ga. 1, 2 (3) (222 SE2d 354) (1976). [However, ‘where] the evidence shows either the completed offense as charged or no offense, such evidence will not support a verdict for one of the lesser grades of the offense. . . . (Cit.)’ Burley v. State, 172 Ga. App. 34, 35 (3b) (321 SE2d 783) (1984).” Jones v. State, 204 Ga. App. 279 (419 SE2d 542). In the case sub judice, defendant admitted that he stabbed and wounded the victim, but testified that he did so in self-defense. The assault was therefore committed by cutting the victim with a deadly weapon as alleged in the indictment, and so could not have amounted to mere simple battery. Rossell v. State, 195 Ga. App. 327, 328 (2) (393 SE2d 485) (1990); Jones v. State, 204 Ga. App. 279, supra. Consequently, the trial court did not err in refusing to give defendant’s written request to charge on simple battery.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A0407.
    DARIEN BANK v. MILLER et al.
    (431 SE2d 165)
   Andrews, Judge.

The Darien Bank brought this action for the balance due on a promissory note against Miller and Mclver. After a jury verdict and judgment was entered in favor of. the bank and against Miller in the sum of $16,057.16, the bank appealed claiming the amount of the verdiet was inadequate.

In August 1985, Miller and Mclver co-signed as makers of a promissory note to the bank in the principal amount of $68,263.40. The August 1985 note was the last in a series of renewals of the original November 1983 promissory note made by Mclver in the principal amount of $64,536.15. There was evidence Miller endorsed the November 1983 note as an accommodation party to enable Mclver to obtain the original loan, and that Miller’s signature as co-maker on the August 1985 note was also as an accommodation party. Mclver used the bulk of the original loan to purchase a shrimp boat, which was pledged as collateral to secure the note and subsequent renewals.

The shrimp boat was later seized and stored in Key West by U. S. Customs officials after it was discovered being used to haul marijuana. After the bank obtained the release of its collateral from the government, Miller went to Key West to examine the boat, and testified it was heavily damaged and almost a total loss. With the bank’s knowledge, Miller brought the boat back to Georgia to repair and sell it and use the proceeds to reduce the outstanding balance on the note. However, shortly after the boat was docked in Georgia, it was totally destroyed by fire.

The August 1985 renewal note went into default, and the bank brought the present suit to collect amounts due under the note. The bank produced evidence showing the balance due plus attorney fees due under the terms of the note, and deducted from this amount insurance proceeds it recovered as a result of the dockside fire, for a total sum due of $89,560.74. Miller did not contest the bank’s figures, but contended the amount claimed due by the bank on the note should be reduced to the extent the bank impaired the value of the collateral by: (1) failing to procure breach of warranty insurance on the boat prior to its seizure, or failing to pursue collection of such insurance, and (2) failing to collect the full amount of insurance coverage due as a result of the fire. Miller claimed that as an accommodation party to the note, he was discharged from the debt to the extent of the impairment. See OCGA §§ 11-3-606 (1) (b); 11-3-415.

In three enumerations of error, the bank attacks the $16,057.16 verdict and judgment as inadequate.

1. The bank’s first enumeration claiming the trial court erroneously denied its motion for summary judgment is rendered moot by the entry of a verdict and judgment based on evidence introduced at trial. Ray v. Atkins, 205 Ga. App. 85, 91 (421 SE2d 317) (1992).

2. In its second enumeration, the bank claims Miller had no right to discharge for impairment of collateral under OCGA § 11-3-606 (1) (b) because he was a co-maker and not an accommodation party on the note. Accordingly, the bank contends the trial court erred in denying its motion for a directed verdict seeking a ruling that Miller was not an accommodation party. There was no error in the trial court’s denial of the motion.

Evidence showed Mclver paid several thousand dollars of the proceeds of the original note to Miller as repayment on a previous debt, but Miller also testified that he signed as a co-maker on the note merely as an accommodation party with the understanding that Mclver remained primarily responsible on the note. “A party who signs an instrument in any capacity for the purpose of lending his name to another person thereto is an ‘accommodation party’ under [OCGA § 11-3-415]. . . .” Barylak v. Jordan, 156 Ga. App. 508 (274 SE2d 846) (1980). Although as an accommodation party Miller would remain liable to the bank in his capacity as co-maker (Brice v. Northwest Georgia Bank, 186 Ga. App. 871, 872 (368 SE2d 816) (1988)), he would nevertheless retain a right of recourse against his co-maker, and the right to discharge under the provisions of OCGA § 11-3-606 (1) (b) for impairment of collateral. Bank South v. Jones, 185 Ga. App. 125, 126 (364 SE2d 281) (1987); see Schmuckie v. Alvey, 758 SW2d 31 (Ky. 1988). The intention of the parties is the determinative element in ascertaining whether a co-maker of the instrument is an accommodation party. Barylak, supra at 508. The issue was a jury question in this case.

3. Finally, the bank claims the trial court erred in denying its motion for a new trial. The bank sought a new trial on the general grounds that the verdict was not supported by the evidence, and on the additional ground that Miller was not an accommodation party entitled to discharge for impairment of collateral. We determined in Division 2, supra, that the additional ground has no merit.

In moving for a new trial on the basis of an inadequate verdict, a plaintiff generally may not rely solely on a general allegation that the evidence does not support the verdict, but must raise specific grounds in support of why the verdict is not supported by the evidence so that the trial court’s ruling is specifically invoked upon the questions presented on appeal. Selman v. Manis, 100 Ga. App. 422, 425-427 (111 SE2d 747) (1959). The record does not reflect that the specific arguments made on appeal in support of the bank’s claim were addressed to the trial court.

“We recognize that there are cases in which the amount of the plaintiff’s recovery may be subject to exact computation and in such cases the excessiveness or inadequacy of the verdict is held in some cases to have been properly presented by a general ground of motion for new trial.” Id. at 427. However, this is not the rule where the defendant has presented evidence of unliquidated damages in reduction of the fixed amount sought by the plaintiff. Id. at 426-427. In addition to the fire insurance loss, there was evidence the bank was named payee under a loss payable clause in breach of warranty insurance procured by Mclver, and that the bank impaired the value of the collateral by failing to pursue a potential claim for available coverage which could have reduced or eliminated the amount due on the note. Although it is unclear what the obligations of the bank may have been to Miller to seek collection of any insurance loss, this issue was not raised by the bank below, and we do not address it. See Liberty Nat. Bank &c. v. Interstate Motel Dev., Inc., 346 FSupp. 888, 890-891 (S.D. Ga. 1972).

Decided April 29, 1993.

Pipkin & Williams, James G. Williams, for appellant.

Lane & Gossett, Roger B. Lane, Mark J. Bujold, for appellees.

“On appeal this court is bound to construe the evidence with every inference and presumption being in favor of upholding the jury’s verdict.” (Citations and punctuation omitted.) Catlett v. Catlett, 193 Ga. App. 399, 400 (388 SE2d 14) (1989). We find no error in the trial court’s denial of the motion for new trial. Peterson v. First Franklin Fin. Corp., 201 Ga. App. 849, 850-851 (412 SE2d 612) (1991).

Judgment affirmed.

Pope, C. J., and Birdsong, P. J., concur.

       It appears a default judgment was entered against Mclver, and the subsequent trial and this appeal concern only Miller.


text:
    A93A0429.
    WOODS v. THE STATE.
    (431 SE2d 167)
   Andrews, Judge.

Woods appeals his convictions for burglary and entering a motor vehicle with the intent to commit a theft.

1. The trial court’s charge on the lesser included offense of criminal trespass was substantially the same as the Suggested Pattern Jury Charge on this issue adopted by the Council of Superior Court Judges. See Suggested Pattern Jury Instructions, Vol. II, Criminal Cases, p. 15 (2d ed. 1991). There is no merit in the contention that the charge foreclosed or limited the jury’s consideration of the lesser included offense.

2. Woods contends the trial court erroneously denied his motion based on Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986) in which he claimed the state violated his equal protection rights in exercising its peremptory strikes to discriminate against him by excluding blacks from the jury on the basis of race. Under the initial prong of Batson, the defendant has the burden to establish a prima facie case of racial discrimination as a result of the state’s use of its strikes. To do so, Woods was required to show that he is black; that the prosecutor exercised peremptory strikes to remove blacks from the petit jury, and that these facts and other relevant circumstances, including relevant statistical data as to the racial composition of the petit jury panel, the strikes exercised by both parties, and the racial composition of the resulting jury, raise an inference that the prosecutor struck blacks from the petit jury on the basis of race. Aldridge v. State, 258 Ga. 75, 77-79 (365 SE2d 111) (1988); Burgess v. State, 189 Ga. App. 790, 792-793 (377 SE2d 543) (1989). In developing the evidence of a prima facie case for the trial court’s consideration, the defendant “has the burden to complete the record with information revealing the racial composition of the panel from which the jury was selected, the racial breakdown of the strikes of both parties, and the racial composition of the resulting jury.” Aldridge, supra at 77.

The defendant has failed to complete the record with this information. The only portion of the record disclosing this statistical data was in colloquy between defense counsel, the prosecutor, and the trial judge during the Batson motion. Defense counsel asserted: (1) that after two jurors were struck for cause from the petit jury, seventeen of the remaining forty-six jurors were black (thirty-seven percent black); (2) that the state exercised eight of its ten peremptory strikes for selection of the twelve-person jury; (3) that three of these eight strikes were used to exclude two black jurors, and one juror who was either black or hispanic; (4) that in exercising two strikes in the selection of alternate jurors, the state excluded one black juror; (5) that the resulting jury was composed of six blacks and six whites. Throughout the hearing on the motion, both the prosecutor and the trial judge commented that there was no agreement on the figures recited by defense counsel. Near the close of argument on the motion, defense counsel stated: “I’m wondering what I need to do to perfect the record, your honor.” The trial judge responded: “Well don’t ask me. I’m not going to perfect the record for you, but I will let you perfect the record for yourself if you want to.” Thereafter, defense counsel merely re-asserted her claim that 17 of the 46 petit jurors were black.

As we have previously held, “[c]olloquies between court and counsel and argument of counsel, though included in the record, are not competent evidence of the facts observed therein, and do not suffice to make a proper record of facts required to establish a prima facie case of discrimination.” Shaw v. State, 201 Ga. App. 438, 440 (411 SE2d 534) (1991). There was no effort to complete the record by amendment or supplementation pursuant to OCGA § 5-6-41 (f), nor any stipulation as to facts pursuant to OCGA § 5-6-41 (i). On this record, we find no error in the trial court’s ruling that Woods failed to carry his burden to establish a prima facie case of racial discrimination.

Moreover, even accepting the figures asserted by defense counsel, they show that blacks composed 37 percent of the jury panel, and 50 percent of the resulting 12-person jury. In selection of the twelve-person jury, the state exercised eight of its ten peremptory strikes, and the defense identified two black jurors excluded, and one juror identified as possibly black or possibly hispanic. One of two additional strikes was exercised in the selection of alternates to exclude one black juror. Accordingly, the three or possibly four black jurors excluded out of ten total strikes exercised by the state (thirty to forty percent of the strikes), closely parallels the percentage of blacks on the petit jury (thirty seven percent). “When the racial makeup of the group excluded by the prosecutor closely parallels the racial makeup of the venire, the laws of probability may tend to support the prosecutor’s claim that none of the jurors was excluded because of their race, and virtually any neutral explanation by the prosecutor will be sufficient to support a finding that race was not a factor in his exercise of peremptory challenges.” Ford v. State, 262 Ga. 558, 560 (423 SE2d 245) (1992). Since the trial court ruled that no prima facie case was established, the prosecutor was not required under Batson to explain the strikes. Nevertheless, he offered race neutral, case related explanations for the strikes, which, especially in light of the prosecutor’s diminished burden under the statistical data asserted by the defense, the trial court was authorized to accept. See Wheat v. State, 205 Ga. App. 388, 389 (422 SE2d 559) (1992).

3. Woods claims the trial court erred in denying his motion for a new trial on grounds that: (1) the verdict is contrary to the evidence; (2) the verdict is against the weight of the evidence, and (3) the verdict is contrary to law, and principles of justice and equity. Although a claim that the verdict is against the weight of the evidence is addressed to the trial judge, and not to this court (Daniel v. State, 180 Ga. App. 687, 688 (350 SE2d 49) (1986)) the remaining claims will be considered as relating to the sufficiency of the evidence. Stinson v. State, 185 Ga. App. 543 (364 SE2d 910) (1988).

Woods makes no argument as to his burglary conviction, but claims the evidence was insufficient to support his conviction on the charge that he entered a motor vehicle with the intent to commit a theft. OCGA § 16-8-18. The indictment alleged that “on the 8th day of September 1991, [Woods] did unlawfully and without authority enter a 1988 Ford pickup truck, a motor vehicle, the property of Randell Brothers, Inc., with intent to commit a theft therein.” Viewed in favor of the verdict, evidence showed the owner of the burglarized business testified that a vehicle at the business location, described as a 1988 Ford truck or van used for heating and air conditioning work, was also broken into on the night in question, and tools were taken from the vehicle. A security guard at the business testified that while making rounds he heard a vehicle door slam, and upon investigation, discovered that someone had entered the door of a heating and air conditioning panel or utility truck. As he turned from the truck, he saw a man he later identified as Woods a short distance away throwing something over the fence surrounding the business property. He approached Woods, who told him he worked for the business, and then fled over the fence. Later the same night, the security guard saw Woods inside the business. The police were summoned, and Woods was apprehended after a short chase. Various furnishings were broken into inside the business, and Woods’ fingerprints were matched to those on a screwdriver found in the building. Woods testified that he went on to the business property, and entered a van solely for the purpose of sleeping there for the night.

Decided April 29, 1993.

Elizabeth Markowitz, for appellant.

Lewis R. Slaton, District Attorney, for appellee.

Although the proof did not exactly track the specific description of the motor vehicle in the indictment, we find no fatal variance. See Dobbs v. State, 199 Ga. App. 793, 794 (406 SE2d 252) (1991). The evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Pope, C. J., and Birdsong, P. J., concur.