author:
Smith, Judge.
      Beasley, Chief Judge,

text:
    A95A1072.
    OKEKPE v. COMMERCE FUNDING CORPORATION.
    (463 SE2d 23)
   Smith, Judge.

This is a direct appeal from the denial of a motion to dismiss appellee’s filing of a foreign judgment under the Uniform Enforcement of Foreign Judgments Law, OCGA § 9-12-130 et seq. That law applies only to foreign judgments of other states that have adopted the uniform act in substantially the same form as Georgia. OCGA § 9-12-138. When it applies, however, “[a]ny litigation ensuing is limited to that which is afforded any other Georgia judgment. OCGA § 9-12-132.” Eastlawn Corp. v. Bankers Equip. Leasing Co., 211 Ga. App. 551, 555 (1) (439 SE2d 753) (1993) (Beasley, P. J., dissenting).

OCGA § 9-12-132 provides: “A copy of any foreign judgment authenticated in accordance with an act of Congress or statutes of this state may be filed in the office of the clerk of any court of competent jurisdiction of this state. The clerk shall treat the foreign judgment in the same manner as a judgment of the court in which the foreign judgment is filed. A filed foreign judgment has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, staying, enforcing, or satisfying as a judgment of the court in which it is filed and may be enforced or satisfied in like manner.”

It is therefore clear that the denial of a motion to set aside a judgment filed under OCGA § 9-12-130 et seq. should be treated no differently for appeal purposes than any other judgment. See generally Eastlawn Corp., supra; Agency Mgmt. Svcs. v. Escape Travel/Tour Svcs., 199 Ga. App. 882, 883 (1) (406 SE2d 285) (1991).

In substance, this is an appeal from the denial of Okekpe’s motion for relief from a foreign judgment rendered in Virginia based on that state’s lack of personal jurisdiction, OCGA § 9-11-60 (d) (1); it is therefore subject to the discretionary appeal statute, OCGA § 5-6-35 (a) (8). See generally Rebich v. Miles, 264 Ga. 467, 468 (448 SE2d 192) (1994) (“ ‘underlying subject matter’ ” is dispositive under OCGA § 5-6-35 (a) even when a particular judgment or order “is procedurally subject to a direct appeal under OCGA § 5-6-34 (a)”). Any rule to the contrary that may have been implied in the following cases is expressly disapproved. Kaylor v. Turner, 210 Ga. App. 2 (435 SE2d 233) (1993); Arnold v. Brundidge Banking Co., 209 Ga. App. 278 (433 SE2d 388) (1993); O’Quinn v. Southeast Radio Corp., 190 Ga. App. 608 (380 SE2d 487) (1989); Sanders v. S. D. Leasing, 189 Ga. App. 409 (376 SE2d 420) (1988).

When the discretionary appeal statute is applicable to the subject matter of the case, only a notice of appeal properly filed under OCGA § 5-6-35 (g) is sufficient “to secure a review of the issues” presented. Id. Since no proper notice of appeal has been filed in accordance with the mandatory procedure for discretionary review of the subject matter of this case, it must be dismissed.

Appeal dismissed.

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

Beasley, Chief Judge,

concurring specially.

The majority opinion expressly disapproves any rule that may have been implied, in several cases, contrary to the holding in this case. The holding is that an appeal from a denial of what was in effect a motion under OCGA § 9-11-60 (d) (1) to set aside a domesticated judgment needs the court’s approval pursuant to the discretionary appeal procedure. OCGA § 5-6-35 (a) (8). I totally agree that the direct appeal in this case must be dismissed for failure to follow that procedure. Appellant attempts to directly appeal from what amounts to a denial of a motion to set aside a foreign judgment which has been filed for enforcement in this state, and Georgia appellate procedure requires that permission first be obtained for appeals from denials of motions to set aside judgments. I depart from the disapproval of four earlier opinions.

1. O’Quinn v. Southeast Radio Corp., 190 Ga. App. 608 (380 SE2d 487) (1989) was appealed the right way, as a matter of appellate procedure, because it was an appeal from the grant of plaintiff’s motion for summary judgment. There is a right to a direct appeal from a grant of summary judgment even when it does not resolve the entire case. OCGA § 9-11-56 (h). O’Quinn did not involve a motion to set aside a judgment under the post-judgment remedies statute, OCGA § 9-11-60. Thus, O’Quinn does not imply that a direct appeal may be taken from a denial of such a motion.

It does appear that O’Quinn was in error in referring to Southeast Radio Corporation’s action as one under OCGA § 9-12-130. From the fact that the trial court entertained a motion for summary judgment, and Southeast did not challenge the employment of such a motion, I conclude that Southeast’s action was not the expeditious process provided by the 1986 Uniform Enforcement of Foreign Judgments Law but rather the cumbersome pre-1986 process which the Uniform Act still allows the creditor the option of using. OCGA § 9-12-136. We should have noted that summary judgment is not available in proceedings under the Uniform Enforcement of Foreign Judgments Law, because motions for summary judgment under OCGA § 9-11-56 are pre-judgment devices to resolve a civil dispute, prior to trial, by reference to the record and the evidence of record.

A.A.A., Inc. v. Lindberg, 112 Ga. App. 753 (324 SE2d 480) (1984), which was decided before the enactment of the Uniform Law, illustrates the use of this alternate, traditional action which survives the enactment. The creditor was obliged to file a complaint to domesticate its foreign judgment and follow the procedure provided by the Civil Practice Act in obtaining any judgment. Thus it was subject to a defense, and a motion for summary judgment was available to dispose of it. Both parties filed motions for summary judgment, and the court granted that of the plaintiff/judgment creditor. Had both motions been denied, there would have been a trial on the contested issue of the foreign court’s jurisdiction. This lengthy collateral action is the very kind of process that the Uniform Law was intended to avoid.

2. Sanders v. S. D. Leasing, 189 Ga. App. 409 (376 SE2d 420) (1988), also does not imply that direct, rather than discretionary, appeal lies from a ruling on a debtor’s post-judgment motion to set aside a judgment under OCGA § 9-11-60. Since the creditor did try to follow the Uniform Law rather than the traditional procedure in that case, it did not have to file a motion for summary judgment because OCGA § 9-12-132 provides that the mere filing of an authenticated foreign judgment with the clerk gives it the force and effect of a domestic judgment. The debtor tried to challenge the foreign court’s jurisdiction merely in a response to the motion for summary judgment, but this court correctly ruled that such a challenge would have to be by motion to set aside the already domesticated judgment. The direct appeal was properly before us because the trial court had granted the judgment creditor’s motion; the debtor was not appealing from any denial of a motion to set aside; he never made one. (The trial court should actually have just dismissed the motion for summary judgment as it was unnecessary.)

If Sanders had involved the traditional complaint procedure for domesticating a foreign judgment, then defending against the creditor/plaintifPs motion for summary judgment was proper and that part of this court’s opinion would be incorrect. The defendant would not have to await the final judgment against him in such an action and then try to set it aside under OCGA § 9-11-60 (d); in fact, that would probably be deemed too late, as he had opportunity to do so before judgment was reached under that procedure. OCGA § 9-11-12 (b) (2). The court expressly left open the question of whether a direct proceeding under OCGA § 9-11-60 could be brought on the filed foreign judgment: “Whether the ‘court of rendition’ is Arkansas, or, under OCGA § 9-12-132, may be deemed to be Georgia, a direct attack was not made in this case.” Id. at 410. What we did not say in that case and should have said however, even though it was not a raised issue, is that a motion for summary judgment is not proper. There it was filed by the plaintiff/appellee and granted. Even though a motion for summary judgment was not a proper way for plaintiff to proceed to enforce the domesticated judgment, we had jurisdiction of the direct appeal because it still was an appeal from the grant of summary judgment to plaintiff. OCGA § 5-6-34 (a) (1).

There was no motion under OCGA § 9-11-60 (d) in the case, a ruling on which would have prompted a right to seek appeal by the discretionary appeal method. The decision does not imply that an appeal from a ruling on such a motion could proceed by direct appeal.

3. Arnold v. Brundidge Banking Co., 209 Ga. App. 278 (433 SE2d 388) (1993), apparently was a case in which the creditor employed the streamlined procedure of the Uniform Law, although the opinion states that the creditor “filed an action . . . seeking to domesticate and enforce a judgment obtained” in a foreign state, which would be the traditional procedure. I surmise that it was pursuant to the Uniform Law because the debtor moved to set it aside. Such a motion is a post-judgment motion, not a pre-judgment motion. Under the Uniform Law, the creditor already had its domesticated judgment, by the mere filing of it under OCGA § 9-12-132. I do not know why, or whether actually (it may have been just our interpretation), the trial court “denied (the) motion, domesticated the (foreign) judgment, and entered final judgment in favor of (the creditor).” Id.

The affirmance by this Court was correct, however, because as pointed out, the debtor did not prove, in support of his motion to set aside, that the foreign court lacked personal jurisdiction of him. Arnold recognizes that the judgment debtor who seeks to set the judgment aside by motion has an opportunity to present evidence in support of such a motion. Id. at 279.

One other point regarding Arnold. The opinion states that “In a motion to set aside a foreign judgment the standard is identical to that of OCGA § 9-11-60 (d). OCGA § 9-12-132.” The standard is not “identical”; the motion is made under OCGA § 9-11-60 (d), so the standard is the standard applied in such instances. OCGA § 9-12-132 provides that “A filed foreign judgment has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, staying, enforcing, or satisfying as a judgment of the court in which it is filed and may be enforced or satisfied in like manner.” It does not say that the procedures to challenge the judgment are “similar”; the filed foreign judgment simply becomes a domestic judgment and the creditor goes on from there. Any challenge by the debtor must proceed according to the law for challenging domestic judgments. So he would move to set aside for lack of personal jurisdiction just as would a debtor with a default judgment obtained in a Georgia court, such as when the latter was not served with process and did not learn of the judgment until enforcement steps were taken. See Castellana v. Conyers Toyota, 200 Ga. App. 161, 162-163 (1) (407 SE2d 64) (1991).

Instead of, and in addition to, moving to set aside in Georgia, Arnold also had the option of seeking a stay of the enforcement of the judgment while he proved, either in the Georgia court or in the foreign court, lack of the foreign court’s personal jurisdiction. OCGA § 9-12-134.

I note that the burden of proving personal jurisdiction in the foreign court, or the lack of it, may be different when the traditional domestication procedure is followed. In Brown v. U. S. Fid. &c. Co., 208 Ga. App. 834, 835 (2) (432 SE2d 256) (1993), the judgment creditor “brought this action to domesticate the default judgment and moved for summary judgment. After a hearing at which appellant argued that the New York court lacked personal jurisdiction over him, [the judgment creditor’s] motion for summary judgment was granted.” Brown. That action was the traditional one, not one under the Uniform Law, which is never mentioned in the opinion. The court stated in Division 2: “When a suit is brought to domesticate a foreign judgment, the judgment may be collaterally attacked on the ground that the foreign court lacked personal jurisdiction over the defendant. Economou v. Economou, 196 Ga. App. 196 (1) (395 SE2d 830) (1990). Moreover, if the foreign judgment is a default judgment entered against a nonresident of the foreign state, there is no presumption of personal jurisdiction and the burden is on the plaintiff seeking to domesticate the judgment, in this case appellee [creditor], to negate the defendant’s lack of jurisdiction defense. Atlantic Nat. Bank of Fla. v. Chance, 194 Ga. App. 634 (391 SE2d 677) (1990).” The debtor raised the defenses by response to the plaintiff/creditor’s motion for summary judgment. This Court concluded that the creditor did meet its burden of negating the debtor’s “lack of jurisdiction defense” by documentary evidence and affirmed the grant of summary judgment.

4. Kaylor v. Turner, 210 Ga. App. 2 (435 SE2d 233) (1993), says it is an “action . . . pursuant to the Uniform Enforcement of Foreign Judgments Act,” but then recites that the plaintiffs “filed an action to domesticate the [foreign] judgment in Georgia.” Id. at 3. The parties proceeded through the steps for an action brought by the judgment creditors according to the traditional complaint procedure. The judgment debtors set forth defenses, apparently by “answer,” including the foreign court’s lack of jurisdiction in the revival action. The parties “submitted this case for the trial court’s consideration on stipulated facts.” Id. The trial court found that the foreign court had personal jurisdiction over the defendants. Id. at 4.

The opinion then goes on to apply the Uniform Law in Division 2, erroneously doing so if this case proceeded below in accordance with the traditional procedure. OCGA § 9-12-132 simply had nothing to do with the action because, as permitted by OCGA § 9-12-136, the judgment creditors had “brought an action to enforce a judgment instead of proceeding under [the Uniform Law].”

Nevertheless, the appeal does not involve a motion to set aside pursuant to OCGA § 9-11-60 (d) which would have to be pursued by the discretionary appeal procedure. Instead, it involves a direct appeal from a trial court judgment which reduced a foreign judgment to a domestic judgment. Consequently, the affirmance of the trial court’s judgment is correct.

These, then are my reasons for questioning the disapproval of the four cases for the bases asserted by the majority opinion. Although they are problematic, it is not for the reason they are cited for disapproval in this Okekpe case.

5. OCGA § 5-6-35 (a) (8) requires an appeal from a denial of motion to set aside a judgment under OCGA § 9-11-60 (d) to proceed by way of application under OCGA § 5-6-35 (b). Jaraysi v. Southern Bell Tel. &c. Co., 176 Ga. App. 105 (335 SE2d 463) (1985), followed in Leader Nat. Ins. Co. v. Martin, 185 Ga. App. 27, 30 (2) (363 SE2d 281) (1987), which was followed in Agency Mgmt. Svcs. v. Escape Travel/Tour Svcs., 199 Ga. App. 882, 883 (1) (406 SE2d 285) (1991). (Agency, unlike Jaraysi and Leader Nat. Ins. Co., is a case involving a foreign judgment. In Agency, a non-precedential opinion, our court mistakenly states that plaintiff “instituted this action for enforcement of a foreign judgment [the traditional method] . . . pursuant to . . . OCGA § 9-12-130 et seq. [the new method].” Perhaps for that reason the court did not question the appropriateness of a “motion to set aside,” which is dealt with in Division 1 of that opinion. Agency is right, as far as it goes; it assumes such a motion under OCGA § 9-11-60 (d) is available to attack a foreign judgment filed pursuant to OCGA § 9-12-132 in the first place.)

After plaintiff in this case filed its foreign judgment in the trial court pursuant to OCGA § 9-12-132 and served defendant, the latter filed a “response to motion” contending it “should not be filed” because the foreign court did not have jurisdiction over him and thus the judgment was “fatally flawed.” This is a peculiar pleading because the plaintiff had not filed a motion in a pending case but rather simply a foreign judgment; moreover, the filing of the foreign judgment did not lend itself to a “response” from the judgment debtor.

At any rate, plaintiff went along with it instead of moving to strike this “response” and took defendant’s deposition, presumably on the question of the foreign court’s personal jurisdiction of him.

Thereafter defendant filed a motion “to dismiss plaintiff’s complaint” under OCGA § 9-11-12 (b) (2) and (6) and OCGA § 9-11-60 (a) on the same ground advanced in the earlier “response,” i.e., the foreign court’s lack of personal jurisdiction. Of course, OCGA § 9-11-12 (b) (2) (lack of jurisdiction over person) and (6) (failure to state a claim) are totally inapplicable because this Code section only provides a pre-judgment procedure. It is inapplicable for the same reason that summary judgment under OCGA § 9-11-56 is inapplicable in these domestication filings under the Uniform Enforcement of Foreign Judgments Law. See Eastlawn Corp. v. Bankers Equip. Leasing Co., 211 Ga. App. 551, 555 (439 SE2d 753) (1993) (Beasley, P. J., dissenting).

Defendant’s other procedural authority, OCGA § 9-11-60 (a), allows collateral attack on a judgment which is “void on its face.” It is inapplicable, too, if for no reason other than that the ground of avoidance is lack of personal jurisdiction, which is not shown on the face of the judgment. Hawkins v. Walker, 158 Ga. App. 562 (281 SE2d 311) (1981); but see Murphy v. Murphy, 263 Ga. 280, 282 (430 SE2d 749) (1993). Defendant is simply wrong when he asserts in his motion that the judgment is void on its face for this reason, in an apparent effort to squeeze his problem into OCGA § 9-11-60 (a) so he can collaterally attack the domesticated foreign judgment. The shoe does not fit.

In addition, there was no “complaint” to dismiss. This is not “an action to enforce a judgment,” which is distinguished by OCGA § 9-12-136. It is the mere filing of the foreign judgment in the Georgia court, i.e., domestication, for enforcement here where assets are located.

Nevertheless, the court treated the motion as proper procedurally, found as fact that the foreign court had had personal jurisdiction of defendant when it rendered the foreign judgment against him, and denied the “motion to dismiss.” Thus the issue of the foreign court’s personal jurisdiction was tried and decided in Georgia, not in the state in which the judgment was rendered, and plaintiff relied on the foreign state’s law to prove it.

Although the trial court did not characterize the motion as one authorized by OCGA § 9-11-60 (d) (1), the majority does so. Having made such a characterization, of course an application for discretionary appeal is required. OCGA § 5-6-35 (a) (8). Is such a motion available to attack a foreign judgment filed pursuant to OCGA § 9-12-132?

That Code section, which provides for the filing, force and effect following filing of a foreign judgment, states that the clerk shall treat it as one of its own judgments and that once filed, the judgment “has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, staying, enforcing, or satisfying as a judgment of the court in which it is filed and may be enforced or satisfied in like manner.” The question is whether the same methods for obtaining relief from a Georgia judgment are available to the judgment debtor who seeks relief from a domesticated foreign judgment. Specifically, can he move to set it aside under OCGA § 9-11-60 (d) (D?

It appears that OCGA § 9-12-132 intends the answer to be “yes.” But a judgment may only be attacked directly under OCGA § 9-11-60 (b), unless it is void on its face, which this one is not. There are two methods for directly attacking a judgment; one is by motion for new trial and the other is by motion to set aside. OCGA § 9-11-60 (b). Complaints in equity are no longer available to obtain relief from judgments. OCGA § 9-11-60 (e).

I cannot imagine that we would allow a motion for new trial to be used to attack the domesticated foreign judgment. For one thing, we would be usurping the foreign court’s power over its own judgments. For another, we would be reviewing pleadings and transcripts from foreign courts to see if they erred under their law. For a third, what would be the consequences of our grant of a new trial? Would the foreign court have to accept our ruling that a new trial be held? I should hope not. It is obvious to me that the broad range given by OCGA § 9-12-132 to filed foreign judgments does not intend to include a direct attack by way of a motion for new trial.

What about a motion to set aside, as the majority opinion categorizes the motion in this case? Like the motion for new trial, it may be filed “only in the court of rendition.” OCGA § 9-11-60 (b). Does the filing of the foreign judgment in Georgia qualify the Georgia court as “the court of rendition” because now it is a Georgia judgment? That is precisely what is intended by OCGA § 9-12-132, after Georgia has given the foreign judgment “full faith and credit” by its filing. OCGA § 9-12-131.

This is so even though the Georgia court in which it is filed does not “render” any judgment at all; nothing in the Uniform Law contemplates such. Instead, the foreign judgment itself is acted upon. With respect to it, it would appear that there cannot be two courts of rendition, and the fact that it is filed in Georgia does not eliminate the foreign court as the court rendering the judgment. However, for purposes of enforcement in Georgia, though not elsewhere, the Georgia court is considered a court of rendition in OCGA § 9-11-60 (d). The effect, in the foreign state, of a Georgia court’s setting aside the domesticated judgment would only affect its enforceability here. For that reason, the judgment debtor may want to take advantage of a stay proceeding, as authorized in OCGA § 9-12-134, and have the root judgment set aside so it cannot be domesticated anywhere, wherever the judgment debtor has assets. It is noted that OCGA § 9-12-132 allows “defenses” but does not say “attacks,” the language of OCGA § 9-11-60, but that would appear to be inconsequential.

I am afraid we have mixed up the two proceedings and now must unravel the snarled strand. We must return to the light of Hammette v. Eickemeyer, 203 Ga. App. 243 (416 SE2d 824) (1992), which is quoted in the dissent in Eastlawn Corp. v. Bankers Equip. Leasing Co., supra. I may have erred in the Eastlawn dissent when I stated that the procedure used in the trial court in Signet Bank/Va. v. Tillis, 196 Ga. App. 433 (396 SE2d 54) (1990), was “improper.” Although the Uniform Law was available to the judgment creditor in that case, since it sought domestication after 1986, it may have chosen the traditional procedure of filing a complaint to domesticate, as permitted by OCGA § 9-12-136. At any rate, there was an answer and, thereafter, the plaintiff's motion for summary judgment. I am correct in Eastlawn about Signet, if the action in Signet started out under the Uniform Law.

Decided September 22, 1995

Reconsideration denied October 12, 1995.

Giddens, Davidson & Mitchell, Earl A. Davidson, Kenneth Mitchell, for appellant.

Stokes, Lazarus & Carmichael, Marion B. Stokes, Derek W. Johanson, Lane R. Frostbaum, for appellee.

The Eastlawn dissent is correct in pointing out that summary judgment is not available in these instances and that the Uniform Act expedites the recognition and enforcement of foreign judgments so that judgment creditors are not faced with two successive lawsuits in different states in order to collect on one debt.

Hammette recognized that one of the judgment debtor’s re-courses is a stay of enforcement under OCGA § 9-12-134. Subsection (b) would allow it in this instance so the judgment debtor could move to set aside the foreign judgment in the foreign state, in “the court of rendition” of the root judgment, under the foreign state’s rule comparable to OCGA § 9-11-60 (d). Hammette held that a counterclaim was not allowable against a Uniform Act filing.

       Of course, if the motion had been one to set aside the judgment after it finally became domesticated, it still would have been a direct appeal because rulings on such motions were not at that time subject to the discretionary appeal procedure. OCGA § 5-6-35 was enlarged to include such rulings effective July 1, 1984, and A.A.A.’s appeal would have been taken some months before, as the decision of the Court of Appeals was October 16. A.A.A., supra at 756.

       Although the form provided by the clerk’s office for the filing of such judgments is erroneously styled “Suit for Enforcement of Foreign Judgment,” the body of the form and its manner of utilization clearly establish that the Uniform Law was invoked.


source: Caselaw Access Project

author: Pope, Presiding Judge. Beasley, Chief Judge,

license: Public Domain

text:
    A95A1133.
    BENNETT et al. v. JONES et al.
    (463 SE2d 158)
   Pope, Presiding Judge.

Plaintiff Susan Bennett was injured in a car crash caused by defendants. Defendants admitted liability, and the case went to trial for the jury to determine Bennett’s damages and those of her husband on his loss of consortium claim. Although the case was assigned to Fulton Superior Court Judge Elizabeth Long, a Fulton County magistrate sitting as a superior court judge pursuant to OCGA § 15-1-9.1 presided over the trial. The jury awarded Bennett $40,000 and her husband $1,400. Following the denial of their motion for new trial, plaintiffs appeal.

1. Plaintiffs first argue that their motion for new trial should have been granted because the magistrate who presided over their case was not authorized to do so. Specifically, they argue that the dictates of OCGA § 15-1-9.1 were not strictly followed, as the order designating the magistrate to sit as a superior court judge on the days in question specified that he was to “serve and assist Judge Josephine Holmes Cook” rather than Judge Elizabeth Long. Plaintiffs made no objection to the magistrate presiding over their trial until they filed their motion for new trial, however, and the Supreme Court has explicitly held that if there is no objection to the appointment of the magistrate sitting as a superior court judge prior to the commencement of the trial, the issue is not preserved for appellate review. Troncone v. Troncone, 261 Ga. 662 (3) (409 SE2d 516) (1991) (implicitly overruling Adams v. Payne, 219 Ga. 638 (135 SE2d 423) (1964)); see also Ball v. Cox Cable Middle Ga., 211 Ga. App. 447 (439 SE2d 704) (1993). In other words, parties cannot wait until after they see the result of the trial to challenge the magistrate’s authority under OCGA § 15-1-9.1.

Nonetheless, we strongly admonish superior court judges requesting assistance to be careful about how they word their OCGA § 15-1-9.1 orders, as well as how they utilize those appointed to sit as superior court judges under that statute. See Cramer v. County of Spalding, 261 Ga. 570 (3) (a) (409 SE2d 30) (1991). Furthermore, in light of the recent appointment of additional superior court judges, we hope that the practice of relying on judicial assistance under OCGA § 15-1-9.1 on an ongoing rather than occasional basis will soon become less prevalent.

2. Plaintiffs’ challenges to the trial court’s jury instructions are without merit. The court properly charged the jury on impeachment, as defendants on cross were able to bring out several discrepancies in Bennett’s testimony, including discrepancies regarding the quality of her relationship with her husband before and after the accident and discrepancies regarding her performance evaluations at work. Contrary to plaintiffs’ assertion, this conflicting testimony was material to the issue of her damages.

Nor did the trial court err in charging the jury that Bennett could recover only for injuries proximately caused by the defendants’ negligence, but that she could recover for aggravation of pre-existing conditions. This charge was properly adjusted to the evidence, which showed that Bennett had headaches before this accident as well as after. Plaintiffs’ doctor testified that the accident caused the headaches, but he also testified that he was not aware that Bennett had headaches before the accident. Plaintiffs posit that the headaches before the accident were different from the headaches after the accident, but the evidence does not compel this conclusion.

Decided October 12, 1995

Louis Levenson, for appellants.

Gray, Gilliland & Gold, David S. Currie, T. Jeffery Lehman, for appellees.

Judgment affirmed.

Ruffin, J., concurs. Beasley, C. J., concurs specially.

Beasley, Chief Judge,

concurring specially.

I fully concur in the opinion except with respect to the gratuitous admonishment of superior court judges in the use of OCGA § 15-1-9.1 to obtain assistance. Although it appears (outside of this record) that it is a prevalent practice in some jurisdictions and that elongated “temporary” appointment of magistrates is made, we are in no position to assess the need for invoking this extraordinary means for attempting adequate and timely disposition of a court’s caseload. Regardless of the reason, if there is an insufficient number of superior court judges, responsibly working to their maximum to handle the business of the court, then they are compelled to use the authority granted by OCGA § 15-1-9.1 to fulfill the court’s obligations to the public. If there is misuse or use beyond what was contemplated by the legislature, then the causes should be identified and appropriate remedies installed.


author: Johnson, Judge.

text:
    A95A1185, A95A1186.
    COMMISSIONER OF INSURANCE v. STRYKER; and vice versa.
    (463 SE2d 163)
   Johnson, Judge.

After investigating certain business practices of Guy Stryker, an insurance agent, the Commissioner of Insurance issued an order revoking Stryker’s license to transact insurance business in the State of Georgia. The revocation was to become effective the following month unless Stryker requested a hearing, which he did. An administrative hearing officer heard evidence and found that Stryker violated several provisions of the Georgia Insurance Code, namely: OCGA §§ 33-23-21 (4), (5), and (11) and 33-23-35 (b). OCGA § 33-23-21 (4), (5), and (11) provide that a license may be revoked if the license holder has misappropriated, converted to his own use, or illegally withheld money belonging to an insured; has committed fraudulent or dishonest practices; or has shown a lack of trustworthiness or competence to act as a licensee. OCGA § 33-23-35 (b) provides that return premiums due the insured shall be accounted for, shall not be commingled with the licensee’s personal funds, and shall be promptly accounted for and paid to the insured. The hearing officer recommended that the Commissioner issue Stryker a probationary license for 12 months and further recommended that if Stryker failed to execute a probation agreement within 30 days, that his agent’s license be revoked. The Commissioner adopted the hearing officer’s recommendations. Stryker did not execute the probation agreement but instead appealed to superior court, where the case was heard by a part-time magistrate sitting by designation as a superior court judge. The Commissioner’s decision was reversed. We granted the Commissioner’s application for discretionary review. The Commissioner appeals in Case No. A95A1185. Stryker appeals in Case No. A95A1186.

Case No. A95A1185

1. The Commissioner argues that the superior court failed to apply the proper standard in reviewing the administrative decision. We agree and reverse the superior court’s judgment.

“Judicial review of an administrative decision shall be conducted by the court without a jury and shall be confined to the record. OCGA § 50-13-19 (g). The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. OCGA § 50-13-19 (h). . . . The clearly erroneous standard of review to be applied by the superior court prevents a de novo determination of evidentiary questions leaving only a determination of whether the facts found by the ALJ are supported by any evidence. [Cit.]” (Punctuation omitted.) Sawyer v. Reheis, 213 Ga. App. 727, 728-729 (1) (445 SE2d 837) (1994). As discussed below, it is clear that the superior court made a de novo determination of evidentiary questions and substituted its own judgment for that of the agency.

2. The administrative agency’s determination that Stryker failed to promptly refund his clients’ money was supported by the record. At the hearing, three of Stryker’s clients testified that they applied for insurance through him, paid him premiums, and then when their applications were rejected by the insurer or when the client cancelled within a free trial period, they encountered long delays before receiving refunds. The clients added that Stryker refused to return their phone calls and missed appointments with them and that they received no relief until they contacted the insurers directly and the Commissioner. The evidence showed that Stryker already received his clients’ refund checks from the insurer, but that he deposited the money into his business account and used it to pay operating expenses. He waited between 48 and 57 days after depositing the checks before sending the clients their refunds. An expert witness testifying on Stryker’s behalf stated that, in his opinion, a “prompt” refund was one made within 30 days and that 30 days is “pushing the limit” as to what is considered prompt. In her decision, the hearing officer acknowledged that “there is no bright line standard” as to what constitutes promptness in refunding payments as required by OCGA § 33-23-35 (b). However, the hearing officer, expressly referencing the testimony of Stryker’s own expert witness, found that 30 days was “at the outside limit of what is considered prompt” and that, based on industry standards, the premium refunds issued by Stryker were not promptly made. There being evidence that the refunds were not prompt, the superior court erred in reversing the Commissioner’s judgment on that issue.

3. Similarly, the administrative agency’s finding that Stryker violated OCGA § 33-23-21 (4) by misappropriating or illegally withholding money belonging to an insured was supported by evidence of record. As discussed in Division 2, testimony established that Stryker withheld return premiums sent by the insurer and then delayed payment to clients in order to pay his office expenses. This finding should have also been upheld.

4. The administrative agency’s determination that Stryker committed fraudulent or dishonest practices in violation of OCGA § 33-23-21 (5) is also supported in the record. Stryker’s use of client funds to pay office expenses, failure to inform clients of the status of their refunds, and failure to return clients’ calls or attend meetings with them as scheduled support the finding that Stryker acted dishonestly or fraudulently.

5. Finally, the Commissioner’s finding that Stryker exhibited a lack of trustworthiness or competence in violation of OCGA § 33-23-21 (11) is supported by testimony that he was not diligent in servicing his clients’ policies or in submitting their applications to the insurer, that he failed to respond to requests for information from the insurer, and that he failed to account for his clients’ money. This finding should have been upheld by the superior court as well.

“The interpretation of a statute by an administrative agency which has the duty of enforcing or administering it is to be given great weight and deference.” (Citations omitted.) Hosp. Auth. of Gwinnett County v. State Health Planning Agency, 211 Ga. App. 407, 408 (2) (438 SE2d 912) (1993). It is clear that the superior court judge failed to give the Commissioner’s interpretation of the statutes the deference to which it was entitled. Compare Butts County v. Pine Ridge Recycling, 213 Ga. App. 510, 512 (1) (445 SE2d 294) (1994).

Case No. A95A1186

6. In his cross-appeal, Stryker challenges the constitutionality of OCGA §§ 33-23-21 (11) and 33-23-35 (b). This Court is not authorized to consider these arguments because jurisdiction over challenges to the constitutionality of statutes is within the exclusive jurisdiction of the Supreme Court. Ga. Const. 1983, Art. VI, Sec. VI, Par. II (1). We decline to transfer the appeal to the Supreme Court, however, because the Supreme Court is not required to pass upon the constitutionality of a statute unless it clearly appears in the record that the point was distinctly passed upon by the trial court. Raskin v. Wallace, 215 Ga. App. 603, 604 (1) (451 SE2d 485) (1994). The superior court judge expressly declined to rule upon the constitutionality of OCGA § 33-23-21 (11), leaving nothing for the Supreme Court to review on that issue. Assuming, without deciding, that the superior court’s finding as to OCGA § 33-23-35 (b) amounts to a ruling on the constitutionality of that subsection, we still find it unnecessary to transfer the appeal. The question of whether OCGA § 33-23-35 (b) is valid is immaterial because, as discussed above, the record supported the Commissioner’s findings that Stryker violated two other Code subsections as well (OCGA § 33-23-21 (4) and (5)), the constitutionality of which Stryker does not challenge. Inasmuch as OCGA § 33-23-21 provides that a violation of any one of the subsections authorizes a revocation of an agent’s license, a holding that two of the subsections are invalid would not change the outcome.

7. Stryker’s contention that his right against self-incrimination was violated when he was compelled to testify at the administrative hearing is without merit. As part of an investigation or hearing, the Commissioner has the power to examine any individual under oath. OCGA § 33-2-16 (a). In any event, Stryker stated before he took the stand that he reserved his right to invoke his privilege against self-incrimination with respect to particular questions. Our review of the record reveals no instance where Stryker asserted his right against self-incrimination but was compelled to answer. We find no error.

8. Stryker claims that the superior court erred in holding that the Commissioner was authorized to enter an order revoking his license more than 30 days after the hearing, when OCGA § 33-2-23 (a) requires it be done in 30 days. However, Stryker cannot show that he was injured by the court’s ruling because despite the court having found that the order was issued timely, it reversed the Commissioner’s order. Furthermore, the language of OCGA § 33-2-23 (a), that the Commissioner “shall” issue an order within 30 days after the hearing is, in the context of this statute, not mandatory but directory. In its ordinary significance, “shall” is a word of command; however, in the absence of injury to the defendant and in the absence of a penalty for failure to comply with the statute, “shall” denotes simple futurity rather than a command. Hardison v. Fayssoux, 168 Ga. App. 398, 400 (309 SE2d 397) (1983). Because Stryker has not shown harm by the delay and the statute does not provide for a penalty where the order is not issued within this time period, we conclude that the 30-day provision is not mandatory. See Collins v. Birchfield, 214 Ga. App. 144, 146-147 (447 SE2d 38) (1994). Therefore, this enumeration is without merit.

Decided October 12, 1995

Michael J. Bowers, Attorney General, Dennis R. Dunn, Senior Assistant Attorney General, William W. Calhoun, Assistant Attorney General, for appellant.

Michael L. Wetzel, for appellee.

Judgment reversed in Case No. A95A1185. Judgment affirmed in Case No. A95A1186.

Birdsong, P. J., and Smith, J., concur.


author: McMurray, Presiding Judge.

text:
    A95A1308.
    McCLERN v. THE STATE.
    (463 SE2d 49)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty on two counts of aggravated assault and one count of burglary. This appeal followed the entry of judgment of conviction and sentence. Held-.

1. Defendant challenges the sufficiency of the evidence, arguing that the victims’ eyewitness testimony was insufficient to authorize his conviction for the crimes charged. This enumeration is without merit.

Both victims identified defendant as one of three men who entered their home and committed acts which constitute the crimes for which defendant was convicted. Further, the arresting law enforcement officer testified that defendant fled when he approached defendant a short time after commission of the crimes charged. This evidence was sufficient to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of being a party to two counts of aggravated assault and one count of burglary. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Preston v. State, 216 Ga. App. 152, 153 (2) (453 SE2d 759).

2. Defendant contends the trial court erred in failing to give the following request to charge: “Mere association by one, with other persons involved in the commission of a crime, without more, will not, of itself, authorize a jury to find such person guilty of consent in, or concurrence in, the commission of the crime; unless, the evidence shows, beyond a reasonable doubt, that such person aided and abetted in the actual perpetration of the crime, or participated in the criminal endeavor.”

Decided October 12, 1995.

Austin A. Hammond, for appellant.

Robert E. Keller, District Attorney, Nancy Trehub, Assistant District Attorney, for appellee.

Defendant testified in his own defense at trial, explaining that he was not involved or even present during commission of the crimes charged. In fact, defendant testified that he did not know he was identified as one of the victims’ assailants until after his apprehension and arrest. These circumstances demonstrate that defendant’s defense was either deliberate deceit by the victims or misidentification.

“[W]hen a requested charge deals with a matter not in issue, it is not error for a trial court to deny the request. Anderson v. State, 163 Ga. App. 603, 604 (4) (295 SE2d 564) (1982).” Jones v. State, 171 Ga. App. 184, 187-188 (6) (a) (319 SE2d 18). In the case sub judice, the defense of guilt by association was not an issue at trial. Consequently, the trial court did not err in refusing to give defendant’s written request to charge on this subject. See Tolbert v. State, 215 Ga. App. 113 (1) (449 SE2d 671).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A1798.
    SIMMONS et al. v. KROGER COMPANY et al.
    (463 SE2d 159)
   Johnson, Judge.

Robert and Annie Simmons filed suit against the Kroger Company, Lawrence Elder, the store manager, and Gregory Walker, a store security guard, jointly and severally for damages on claims of false imprisonment, false arrest, battery, tortious misconduct and loss of consortium arising from an incident which occurred on December 24, 1991, at the Kroger store located on Cascade Road in southwest Atlanta.

Robert Simmons asked a store butcher how to slice a country ham which he had at home. The butcher offered to slice it for him, so Simmons sent his son home to get the ham. When his son returned, Simmons went into the parking lot to meet him. Relying on information from a store clerk, who has never been identified, Walker, in uniform and carrying a gun, followed Simmons into the parking lot and asked him to return to the store with him. Simmons, an attorney, asked if Walker had probable cause to stop or arrest him and was told that he had been seen eating some candy. According to Simmons’ affidavit, he attempted to turn and walk away, and Walker grabbed his arm and told him if he did not come with him he would be arrested for resisting arrest. Simmons was taken up a flight of stairs to the store’s security office. Simmons told Walker that he considered himself under arrest and wanted his wife, also an attorney, to be present. Walker told him that he was not under arrest. Elder, the store manager, told Mrs. Simmons, who had been shopping but who was now present, that the office was off limits to customers. Mrs. Simmons told her husband that if he was not under arrest, he needed to get his things and leave. Walker then told Mrs. Simmons that if she did not leave, she would be arrested for criminal trespass. Elder told Simmons he was not going anywhere and slammed the door. According to both Walker’s deposition and Simmons’ affidavit, no further questions were asked, and after some time, Simmons was released.

Without stating its reasons therefor, the trial court granted Kroger’s motion for summary judgment on the Simmonses’ claims of false arrest and tortious misconduct. The remaining counts of false imprisonment, battery and loss of consortium were tried before a jury which returned a verdict in the amount of $23,300 in favor of the Simmonses. The Simmonses now appeal the grant of summary judgment on the false arrest and tortious misconduct claims. See Culwell v. Lomas & Nettleton Co., 242 Ga. 242, 243 (248 SE2d 641) (1978).

1. The trial court in this case denied the defendants’ motion for summary judgment on the false imprisonment claim but granted it as to the false arrest claim. Because the elements of false imprisonment and false arrest are different, the denial of summary judgment on one claim does not preclude the grant of summary judgment on the other. See OCGA §§ 51-7-1 through 51-7-3; OCGA §§ 51-7-20 through 51-7-22; Kemp v. Rouse-Atlanta, 207 Ga. App. 876 (429 SE2d 264) (1993). “An arrest under process of law, without probable cause, when made maliciously, shall give a right of action to the party arrested.” OCGA § 51-7-1. Examining the three elements of the tort, we consider first whether there was an arrest under process of law. An action for false arrest may lie either when there has been an arrest pursuant to a warrant or when the arrest is made without a warrant. Gantt v. Patient Communications Systems, 200 Ga. App. 35, 38 (2) (a) (406 SE2d 796) (1991). It is undisputed that there is no warrant involved in this case. The parties disagree, however, about whether there was an arrest. “An arrest is accomplished whenever the liberty of another to come and go as he pleases is restrained, no matter how slight such restraint may be.” (Citations and punctuation omitted.) State v. Henderson, 215 Ga. App. 215, 218 (450 SE2d 288) (1994). When Simmons asked Walker if he was under arrest, he was told he was not. However, when his wife told him to get his things and leave the security office, he was prevented from doing so. Because Simmons was not free to go, we conclude that Simmons was under arrest while in the security office. Having established there was an arrest, we turn to what has been characterized as the gravamen of a false arrest claim, whether there was probable cause. K-Mart Corp. v. Coker, 261 Ga. 745, 746 (1) (410 SE2d 425) (1991). “Lack of probable cause is defined in OCGA § 51-7-43 as existing ‘when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused.’ Unless the facts regarding probable cause are undisputed, it is a question for the jury. [Cits.]” Gantt, supra at 38 (2) (a). See OCGA § 51-7-3. In this case, Walker asserts that his actions were the result of information from a store clerk, whose name he did not know and who has never been identified. No steps were taken to verify the clerk’s information. “Probable cause is defined to be the existence of such facts and circumstances as would excite the belief in a reasonable mind, that the person charged was guilty of the crime for which he was arrested or prosecuted. . . . The defendant is not necessarily required to verify his information, where it appears to be reliable; but where a reasonable man would investigate further before beginning the prosecution ... , he may be liable for failure to do so. All such factors as the reliability of the source, the availability of further information and the difficulty of obtaining it, the reputation of the accused, and his opportunity to offer an explanation, and the apparent necessity of prompt action, are to be considered in determining whether it was reasonable to act without verification.” (Citations and punctuation omitted.) McGonagil v. Treadwell, 216 Ga. App. 850, 854 (2) (456 SE2d 260) (1995). Whether Walker acted reasonably in relying on unverified information from a source he has never identified, either at the time of or after the incident, creates an issue of fact regarding the presence or absence of probable cause which should have been allowed to go to the jury.

Malice, the final element comprising the tort of false arrest, is defined by statute as “a general disregard of the right consideration of mankind, directed by chance against the individual injured.” OCGA § 51-7-2. See Pinkston v. City of Albany, 196 Ga. App. 43, 46 (1) (395 SE2d 587) (1990). Malice can be inferred where there is a total absence of probable cause. McMillan v. Day Realty Assoc., 159 Ga. App. 366, 368 (2) (283 SE2d 298) (1981). The element of malice in this case cannot properly be considered until the issue of probable cause has been resolved by the jury. The trial court erred in removing the count of false arrest from jury consideration. Compare Brown v. Winn-Dixie Atlanta, 194 Ga. App. 130 (389 SE2d 530) (1989).

2. A business owes the public a duty to protect its invitees from abusive language and conduct on the part of its employees. Doe v. Village of St. Joseph, 202 Ga. App. 614, 617 (3) (415 SE2d 56) (1992). In a store crowded with Christmas Eve shoppers, Walker, acting as Kroger’s agent, detained Simmons and ordered him to come with him and answer questions about some candy he had allegedly been seen eating. When Simmons asked if he was under arrest, he was told that if he did not go with Walker, he would be arrested. At that point, in public view, Walker grabbed Simmons’ arm and escorted him to a security office. Simmons noticed numerous customers watching the incident. We believe that this description of the events creates a genuine issue of material fact regarding whether Simmons was subjected to abusive language or conduct by Kroger’s agents so as to support a claim of tortious misconduct. Accordingly, the trial court’s grant of summary judgment in favor of the defendants on this claim must also be reversed. Compare Fly v. Kroger Co., 209 Ga. App. 75, 78 (3) (432 SE2d 664) (1993).

Decided October 12, 1995.

Simmons & Simmons, Robert L. Simmons, Annie R. Simmons, pro se.

Webb, Carlock, Copeland, Semler & Stair, Douglas A. Wilde, for appellees.

Appellees argue that the Georgia Shoplifter’s Act bars a claim of tortious misconduct. This is an overbroad reading of the statute as well as the cases which have construed it. OCGA § 51-7-60 insulates a merchant and his agents from liability for words spoken in the course of an arrest or detention only if there was a basis for a reasonable belief that the person detained was in fact engaged in shoplifting in the store. Swift v. S. S. Kresge, 159 Ga. App. 571, 573 (284 SE2d 74) (1981). This Court has repeatedly held that a determination of whether the merchant acted reasonably is a matter for jury consideration. Bi-Lo v. McConnell, 199 Ga. App. 154, 156 (3) (404 SE2d 327) (1991); United States Shoe Corp. v. Jones, 149 Ga. App. 595, 597 (2) (255 SE2d 73) (1979).

Judgment reversed.

Birdsong, P. J., and Smith, J., concur.


text:
    A95A1932.
    WEAVER v. BOWERS et al.
    (463 SE2d 50)
   Johnson, Judge.

On June 26, 1984, Henry Weaver filed a complaint to collect monies allegedly owed to him by Max A. Bowers and J. Wade Bowers. The complaint mistakenly named “Wade J. Bowers” as a party defendant rather than “J. Wade Bowers.” The defendants’ answer was stricken when they failed to appear for a scheduled pre-trial conference on August 27, 1987, and judgment was entered in favor of Weaver in the amount of $18,975.

Weaver attempted to have a fi. fa. issued using the name J. Wade Bowers, instead of Wade J. Bowers, as it appeared on the judgment. When the clerk declined to do so, in December 1991, Weaver filed a motion to correct a scrivener’s error pursuant to OCGA § 9-10-132. It is the denial of that motion, on November 9, 1994, which forms the basis of Weaver’s present appeal.

In a single enumeration of error, Weaver asserts the trial court abused its discretion in improperly failing to grant his motion to correct a scrivener’s error. OCGA § 9-10-132 provides that: “All misnomers, whether in the Christian name or surname, made in writs, pleadings, or other civil judicial proceedings, shall, on motion, be amended and corrected instanter without working unnecessary delay to the party making the same.” (Emphasis supplied.) “ ‘This court has generally held that, unless the context clearly indicates otherwise, the word “shall” is to be read as a word of command.’ [Cit.]” Legum v. Crouch, 208 Ga. App. 185, 188 (3) (430 SE2d 360) (1993). Because application of the word “shall” as mandatory in OCGA § 9-10-132 does not result in any absurd or impractical consequences, we find no compelling reason to give the word anything other than its ordinary meaning in this context. Further, the statute does not, by its own terms, limit the time in which such a motion can be made. See generally Merchants Grocery Co. v. Albany Hardware &c. Co., 44 Ga. App. 112 (5), (6) (160 SE 658) (1931).

The appellees urge us to read OCGA § 9-10-132 in pari materia with OCGA § 9-11-60 (f), “Relief from Judgments,” which states that action under this Code section should be brought within three years of the judgment. This statute was perhaps relevant to appellees’ cross-motion to set aside the judgment which was denied by the trial court in the same November 1994 order, but from which appellees have not appealed. The only trial court ruling under consideration in this appeal does not involve a motion to set aside a judgment but, rather, a motion to correct a scrivener’s error. OCGA § 9-10-132 and OCGA § 9-11-60 (f) contemplate entirely different relief and are not in conflict. There is, therefore, no reason to attempt to harmonize them.

While it is impossible not to notice that this case has not moved rapidly through the judicial system, we nonetheless find that the language of OCGA § 9-10-132 is mandatory and the trial court erred in denying the motion to correct a scrivener’s error.

Judgment reversed.

Birdsong, P. J., and Smith, J., concur.

Decided October 12, 1995.

Wood, Odom & Edge, Jacquelyn L. Kneidel, for appellant.

Kathleen Kessler, for appellees.


author: Birdsong, Presiding Judge.

text:
    A95A1975.
    BOSTON et al. v. ALLSTATE INSURANCE COMPANY.
    (463 SE2d 155)
   Birdsong, Presiding Judge.

Appellants Derek Boston and Melissa Boston filed this action against Timontheus L. Williams to recover damages relating to injuries Derek Boston sustained in a motorcycle accident. They perfected service upon appellee Allstate Insurance Company, the uninsured motorist coverage carrier. Appellants sought uninsured motorist coverage from Allstate based on an insurance policy issued by Allstate to Derek Boston’s stepfather. Concluding that appellant Derek Boston was not a “resident relative” of his stepfather’s household at the time of the accident so as to qualify for coverage within the meaning of the insured’s insurance policy, the trial court granted Allstate’s motion for summary judgment. This appeal followed. Held:

The trial court found that as a matter of law Derek Boston “did not intend to permanently reside or to establish a ‘continuing residence’ with his parents.” The court determined as a matter of law that Derek Boston was not a “resident relative” within the meaning of his stepfather’s insurance policy; therefore, he was not covered by the insurance policy, and Allstate was entitled to summary judgment on all claims.

The Allstate policy provided uninsured motorist coverage for a “resident relative.” The insurance contract defined “resident” or “reside” as follows: “means the physical presence in your household with the intention to continue living there.” In finding as a matter of law that Derek Boston was not a resident relative, the trial court held his conduct to a higher standard than the explicit language of the contract. The contract merely specified “physical presence in your household with the intention to continue living there.” (Emphasis supplied.) The court interpreted Derek Boston’s inability to state with exactitude precisely how long he would be living with his parents to mean he “did not intend to permanently reside or to establish a ‘continuing residence’ with his parents.” The court then concluded as a matter of law that all claims under the policy were barred since Derek Boston was not a “resident relative.”

For the following reasons we find the trial court’s conclusion erroneous. As we have noted in prior cases, “The ordinary and accepted meaning of the phrase ‘one residing in the same household’ in an insurance policy, pertains to one who physically maintains permanent or frequently utilized living accommodations.” Robertson v. Lumbermen’s Mut. Cas. Co., 160 Ga. App. 52, 53 (286 SE2d 305) quoting Southeastern Fidelity Ins. Co. v. McDonald, 125 Ga. App. 394 (188 SE2d 162). According to the record, prior to the accident, Derek Boston had moved in with his parents and maintained a physical presence in his parents’ home and nowhere else. The evidence in the record amply documents that the following four people agreed in their depositions that Derek Boston had vacated his marital residence and had moved in with his parents in early October 1992 about one month before the accident that was the basis for the initial lawsuit: Derek Boston, Melissa Boston, Juanita Piroleau and Anthony Piroleau, who are Derek Boston’s mother and stepfather. Derek Boston had moved to his parents’ home in anticipation of an impending divorce suit his wife had indicated an intent to file. For several months prior to Derek Boston’s departure from his marital home, the appellants had been experiencing serious marital problems. Prior to their separation, the couple had attended approximately five marriage counseling sessions, and Melissa Boston had sought advice from her minister regarding the marriage. Because of their impending divorce and domestic strife, appellant Derek Boston moved into his parents’ home in early October 1992. Upon leaving his marital home, appellant removed virtually everything he owned including a couch, futon, dining table and chairs, television, lamps, tables, chairs, as well as all his clothes and his two vehicles. From the time Derek Boston moved out until after the accident, appellants had no contact with each other. According to Melissa Boston’s deposition testimony, there had never been a previous occasion when her husband had moved out because of their domestic problems, and she testified, “All I knew is he was going to stay with his parents indefinitely.” After her husband moved out, appellant Melissa Boston had the locks changed on their apartment and consulted an attorney on October 12, 1992, concerning a divorce. After leaving his marital residence, Derek Boston spent every night at his parents’ home. After his release from the hospital following the accident in November 1992, Derek Boston returned to his parents’ home where he continued his recuperation until the couple finally reconciled in late February or early March 1993.

The only ambiguous evidence in the record regarding Derek Boston’s residence at the time of the accident was in his stepfather’s deposition. His stepfather commented that his stepson had moved in and out on previous occasions when he and his wife were experiencing marital difficulties. However, this testimony is clarified by his stepfather’s subsequent remarks (see Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680)) and is contradicted by Derek Boston’s mother’s testimony. Counsel asked Anthony Piroleau, the stepfather, “In the weeks preceding this accident that we’ve been discussing today, did you, yourself, consider Derek a resident of your household?” To which he responded, “Yes, I did.” When asked, “So you didn’t know how long he planned to be at your house, is that correct?” He answered, “Exactly. As far as I’m concerned, he was going to be there forever.” Derek Boston’s mother testified that when her son moved in with them in October 1992, he brought everything and that, unbeknownst to her husband, she had granted her son permission to stay “until the divorce was over,” an unknown length of time.

If there was ambiguity regarding the permanence of Derek Boston’s residency at his parents’ home, such ambiguity would merely have created a material question of fact. Scott v. Allstate Ins. Co., 190 Ga. App. 135 (378 SE2d 332). In Scott, we noted that where there was equivocal or contradictory testimony, such ambiguity could be sufficient to create a material question of fact as to whether the person was, indeed, a resident of a household at the time of the accident. Id. at 136. Similarly, in Platt v. Nat. General Ins. Co., 205 Ga. App. 705 (423 SE2d 387), a jury, not the trial court, made the determination of a daughter’s residency status, for insurance contract purposes, where there was conflicting evidence in the record as to whether the insured’s daughter was actually a member of her father’s household. Id. See also Lewis v. Dairyland Ins. Co., 169 Ga. App. 265 (312 SE2d 165) where a son’s use of his father’s address on a college application and son’s denial of living with his father created a question of fact.

The fact that ultimately Derek and Melissa Boston did not divorce and reconciled several months after the accident is not determinative as to whether Derek Boston was a “resident relative” at the time of the accident. Nor would the fact that the Bostons later filed a joint income tax return for tax year 1992 be controlling. Instead, the exact insurance policy language requiring “physical presence in your household with the intention to continue living there” would control. Since the record contains sufficient evidence that Derek Boston was physically present in the insured’s household as a resident and intended to continue to live in the insured’s household until after the divorce was finalized, summary judgment as a matter of law was incorrect. Neither the policy language at issue here nor Georgia law required Derek Boston intend to live with his stepfather permanently in order to qualify as a “resident relative.” OCGA § 33-7-11 (b) (1) (B).

Consequently, because there is ample evidence in the record to create a factual question as to whether Derek Boston was a “resident relative” so as to satisfy the contractual language of the insurance policy, we reverse the court below.

Decided October 12, 1995.

Sherwinter & McElroy, J. Glenn McElroy, for appellants.

Chambers, Mabry, McClelland & Brooks, James T. Budd, for appellee.

Judgment reversed.

Johnson and Smith, JJ., concur.


text:
    A95A1445.
    KEITH v. THE STATE.
    (463 SE2d 51)
   Johnson, Judge.

Hela Ann Keith was convicted of the misdemeanor offense of permitting another to unlawfully operate a vehicle. Keith appeals, arguing that the trial court erred in requiring her to try the case without her attorney present and without a jury when it did not obtain a knowing and voluntary waiver of either right.

1. In her brief, Keith states that when the case was called for trial, she informed the court that her attorney was not present but the court forced her to proceed unrepresented. The proceedings were not transcribed. The state argues that in the absence of a transcript, Keith has failed to meet her burden of showing error by the record. The state is correct that, generally, the burden is on the appellant to show error affirmatively by the record. See, e.g., Hudson v. State, 197 Ga. App. 428, 429 (2) (398 SE2d 779) (1990). However, as discussed below, a transcript is not always necessary to establish certain facts and the burden is not always on the appellant to prove error.

“[I]n instances where the transcript is unavailable and such facts as are necessary for disposition are stated in the brief, and the State concedes such statement is substantially correct, we are permitted to reach a decision upon the agreed upon facts.” (Citation omitted.) Holzmeister v. State, 156 Ga. App. 94 (1) (274 SE2d 109) (1980); see Court of Appeals Rule 27 (b) (1). The state acknowledges in its brief that Keith was unrepresented at trial. While we cannot accept Keith’s statements as to what conversations took place below, we can accept the undisputed statement that she was unassisted by counsel at trial.

“When an accused is placed on trial for any offense, whether felony or misdemeanor, for which he faces imprisonment, the constitutional guarantee of right to counsel attaches. As with all constitutional rights, the accused may forfeit this right by a knowing and intelligent waiver.” (Citation and punctuation omitted.) Jones v. State, 212 Ga. App. 676, 678 (1) (442 SE2d 908) (1994). The right to counsel exists for all charges for which loss of liberty may be imposed, including misdemeanor cases where the accused could be sentenced to prison. Id. Because Keith pled not guilty and went to trial without the benefit of counsel, the burden was on the state to show that her decision to proceed pro se was knowingly and intelligently made. Kirkland v. State, 202 Ga. App. 356, 358 (1) (414 SE2d 502) (1991). “[I]n the absence of a trial transcript the record is silent as to whether that waiver was knowing and voluntary. . . . [W]hen the record is silent, waiver is never presumed and the burden is on the state to present evidence of a valid waiver.” (Citation and punctuation omitted.) Id. at 357 (1). The record in this case is inadequate to show that Keith knowingly and voluntarily waived her right to counsel. See Jones v. Wharton, 253 Ga. 82, 83 (316 SE2d 749) (1984). Therefore, the judgment below must be reversed and the case remanded for further proceedings consistent with this opinion. Kirkland, supra at 358 (1).

2. The record affirmatively shows that Keith’s trial was conducted before the court rather than a jury. The state argues that a statutory provision for the State Court of Clayton County specifies that all criminal cases will be tried by a judge unless a party demands a jury trial in writing at the time of pleading to the accusation. Ga. L. 1964, pp. 2032, 2037, as amended by Ga. L. 1979, pp. 3838, 3841. The state contends that this type of waiver of jury trial statute is constitutional, and cites as authority Fleming v. State, 139 Ga. App. 849 (229 SE2d 800) (1976). In that case, the statute required that a written jury demand be filed at the time the case is called for trial. We held that such a requirement was not unconstitutional where the statute fixes a reasonable time within which the demand must be made and the defendant was represented at the time the case was called for trial. Id. at 850 (1). Even assuming, without deciding, that the requirement of a written demand for jury trial at the time of the plea affords a defendant a reasonable amount of time within which to make the demand, we cannot conclude from the record before us that Keith’s failure to file a written demand within the time prescribed amounted to a valid waiver. The record does not disclose whether Keith was represented by counsel at the time of her plea, which, under the statute, was the deadline for requesting a jury trial. As the Supreme Court stated in Jones v. Wharton, supra, “where the accused is proceeding pro se, a valid waiver of right to trial by jury cannot be found on the sole ground that the defendant failed to request one.” Id. at 84. “[W]hen an appellant questions the purported waiver of his right, it is up to the State to show that the waiver was intelligently made with the accused’s consent. The Supreme Court enunciated two post-trial methods by which the State could successfully carry its burden of proof: (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filing a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.” (Citations and punctuation omitted.) Cooper v. State, 189 Ga. App. 286, 287 (2) (375 SE2d 505) (1988). On remand, the trial court is directed to make inquiry as to whether Keith waived her right to a jury trial, which inquiry must include the question of whether she was represented by counsel at the time of her plea.

Decided October 13, 1995.

H. Darrell Greene & Associates, Patrick H. Head, for appellant.

Keith C. Martin, Solicitor, Michael P. Baird, Assistant Solicitor, for appellee.

Judgment reversed and case remanded with direction.

Birdsong, P. J., and Smith, J., concur.


author: Andrews, Judge.

text:
    A95A1690.
    BAXTER v. MELTON.
    (463 SE2d 53)
   Andrews, Judge.

After Melton’s vehicle struck the rear of Baxter’s vehicle, Baxter sued Melton for damages claiming that Melton’s negligent operation of his vehicle caused the accident. A jury returned a verdict in favor of Melton, and Baxter appeals from the judgment entered on the verdict.

The only issue on appeal is whether the trial court erred by refusing to allow the police officer who investigated the accident to give his expert opinion that Melton was driving too fast for conditions at the time of the accident.

When the opinion at issue was proffered, the police officer had already testified that Melton told him he was traveling about 40 mph at the time of the accident. The officer had further testified that the estimated speed of 40 mph “could fluctuate five miles an hour either way.” The officer also had testified that, although the speed limit was 45 mph, the maximum safe speed at the time of the accident would have been “between thirty and thirty-five miles an hour” given the limited visibility and wet conditions. When asked whether he thought Melton could have avoided the accident had he been traveling between 30 and 35 mph, the officer testified that he was not sure and that “it would all be a guess.” Melton later testified that he was traveling about 30 mph when he came over a rise in the road in heavy rain and saw Baxter stopped in the road ahead of him. He testified that he applied his brakes but was unable to stop his vehicle in time to avoid the accident.

Although the trial court made no express ruling that the officer was an expert in accident investigation and reconstruction, the court implicitly recognized the officer as an expert in sustaining the objection at issue. See Stewart v. State, 246 Ga. 70, 75 (268 SE2d 906) (1980); Howard v. State, 177 Ga. App. 589, 590 (340 SE2d 212) (1986). We find no error in the trial court’s refusal to allow the officer to offer his expert opinion that Melton was traveling too fast for conditions at the time of the accident.

The issue is not whether the officer’s opinion would have invaded the province of the jury on the ultimate issue of negligence in the case, but whether under the circumstances the subject was a proper one for opinion testimony. “Expert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the average layman. . . . However, it is equally clear that the scope of what is admissible as expert opinion testimony is not unlimited. It is the established rule in Georgia, that where (a) the path from evidence to conclusion is not shrouded in the mystery of professional skill or knowledge, and (b) the conclusion determines the ultimate issues of fact in a case, the jury must make the journey from evidence to conclusion without the aid of expert testimony. A party may not bolster his [case] as to the ultimate issue with expert testimony when the jury could reach the same conclusion independently of the opinion of others.” (Citations and punctuation omitted.) Clanton v. Von Haam, 177 Ga. App. 694, 695-696 (340 SE2d 627) (1986).

Here, the officer testified as to his observations at the scene of the accident, testified that Melton’s vehicle was traveling between 35 and 45 mph, and testified that the maximum safe speed for any vehicle under the conditions prevailing at the time of the accident was 30 to 35 mph. “Where ... it is possible for . . . the jury to take the same elements and constituent factors which guide the expert to his conclusions and from them alone make an equally intelligent judgment of their own, independently of the opinion of others, then ... it [is] their province, their right and duty, to form their own conclusions as to the ultimate fact of negligence, uninfluenced by the opinion of the [expert] witness.” (Citations and punctuation omitted.) Cone v. Davis, 66 Ga. App. 229, 236 (17 SE2d 849) (1941). The jurors were fully capable of considering the evidence and drawing their own conclusions as to the ultimate fact of negligence, including whether or not Melton was traveling too fast for conditions, without the aid of the expert opinion. See Emory v. Dobson, 206 Ga. App. 482, 483-484 (426 SE2d 50) (1992); Cone, supra at 234-236.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur in the judgment only.

Decided October 13, 1995.

Craig T. Jones, for appellant.

Downy & Cleveland, Russell B. Davis, for appellee.


text:
    A95A1290.
    REAGIN v. THE STATE.
    (463 SE2d 39)
   McMurray, Presiding Judge.

Defendant Reagin was charged by accusation with the offenses of driving under the influence of alcohol or drugs, violation of the open container law, operating a vehicle without insurance, operating a vehicle without proof of insurance, simple assault, and obstruction of a law enforcement officer. The charge of operating a vehicle without insurance was nolle prossed. Defendant entered a plea of nolo contendere to the charge of operating a vehicle without proof of insurance and was fined. A verdict of not guilty was directed as to the charge of violation of the open container law. The jury returned a verdict of not guilty as to the offenses of driving under the influence of alcohol or drugs and simple assault. Defendant was convicted of the offense of obstruction of a law enforcement officer and appeals that conviction. Held:

1. All of the charges arose from an incident which occurred at a rest stop on an interstate highway. It was approximately 8:50 p.m. when a patrolling police officer saw defendant sitting in a parked car drinking from a can. The officer parked his car and walked over to defendant’s vehicle. Defendant was alone and seated in the driver’s seat of a vehicle with a local license plate. As the officer approached, defendant concealed the can from which he had been drinking. While defendant stated in response to inquiries by the officer that he had not been drinking, the officer observed that defendant had bloodshot eyes, his face was flush, and his breath had a strong odor of alcohol. Defendant also stated that he had been at the rest stop for 15 minutes and that he had driven himself there. The officer then asked defendant to step out of the car and to perform some field sobriety tests. As defendant was exiting the car, the officer saw that the container from which defendant had been drinking was a 16-ounce beer can. The officer then administered the horizontal gaze nystagmus test and found a great deal of jerking motion of defendant’s eyes. After defendant refused to take further field sobriety tests the officer stated his decision to arrest defendant for driving under the influence. Defendant then physically resisted the officer’s attempt to take him into custody, and this resistance to the arrest is the basis of the obstruction charge of which defendant stands convicted and appeals.

The first enumeration of error questions the sufficiency of the evidence to authorize defendant’s conviction of obstruction of the officer. It is an essential element in an obstruction case that the officer was engaged in the lawful performance of his official duties. Wagner v. State, 206 Ga. App. 180, 182 (424 SE2d 861). Defendant maintains that his conviction must be overturned because he was illegally arrested in that the officer had no probable cause to believe that he had been driving while under the influence.

We note here the three levels of encounter between an individual and police. See Exposito v. State, 191 Ga. App. 761, 762 (1) (382 SE2d 412). The lowest level of encounter has no threshold requirement, and indeed the individual may refuse to answer or ignore the request and go on his way. The encounter in the case sub judice was at this lowest level when the officer walked up to defendant and began a conversation with him. After he saw that defendant appeared to be intoxicated and had been told that defendant had recently driven the car, the officer had sufficient articulable suspicion to authorize bringing the encounter to the second level, a brief seizure pursuant to Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889), which began when defendant was ordered from the car. The third level of encounter is arrest which requires probable cause and involves restraint of one’s liberty.

“ ‘ “A ‘warrantless arrest’ is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent (person) in believing that the accused had committed or was committing an offense. (Cits.)” Callaway v. State, 257 Ga. 12 (2) (354 SE2d 118) (1987).’ Gilbert v. State, 212 Ga. App. 308 (1), 309 (441 SE2d 785).” Knox v. State, 216 Ga. App. 90, 91 (1) (453 SE2d 120). The officer had direct knowledge of defendant’s apparent intoxication and had been told by defendant that he drove to the rest stop only 15 minutes before the officer’s arrival. Defendant refused to acknowledge that he had been drinking and attempted to conceal his beer can. That he offered no explanation for the circumstances discovered by the officer provided additional evidence that defendant was driving under the influence. Martin v. State, 214 Ga. App. 614 (1), 616 (448 SE2d 471). “It is not necessary for a conviction of driving under the influence, much less for probable cause, that the driver actually be seen behind the wheel driving the car while under the influence.” Hall v. State, 200 Ga. App. 585 (1), 586 (409 SE2d 221). While it was possible that defendant had driven to the rest stop before becoming intoxicated, the officer could reasonably conclude that under the circumstances known to him, particularly the short time defendant had been at the rest stop, that this was unlikely to be correct. “By considering all the facts available to him and weighing the reasonableness and probabilities of the circumstances, the officer had the requisite probable cause to arrest. State v. Grant, 257 Ga. 123, 125 (1) (355 SE2d 646) (1987). The same strictness of proof required for a finding of guilt is not necessary for probable cause.” Hall v. State, 200 Ga. App. 585, 587 (1), supra. Therefore, it is immaterial to the legality of the arrest that defendant was acquitted of the charge of driving under the influence. Brooks v. State, 166 Ga. App. 704, 706 (305 SE2d 436). The evidence was sufficient to authorize a rational trier of fact to find defendant guilty beyond a reasonable doubt of obstruction of a law enforcement officer. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Dozier v. State, 217 Ga. App. 835, 836 (1) (459 SE2d 463).

Decided October 3, 1995

Reconsideration denied October 16, 1995

Glyndon C. Pruitt, for appellant.

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Jeffrey P. Kwiatkowski, Assistant Solicitors, for appellee.

2. The remaining enumeration of error complains of the trial court’s failure to charge the jury with regard to warrantless arrest. OCGA § 17-4-20 (a). But this issue was not preserved by a written request to charge, objection to the charge made at trial, or reservation of the right to object on motion for new trial or on appeal. The issue, apparently being first raised by defendant’s amended motion for new trial, was not preserved for appellate review. Golden v. State, 263 Ga. 521 (2) (436 SE2d 11); Dowdy v. State, 215 Ga. App. 576, 577 (3) (451 SE2d 528).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


author: Beasley, Chief Judge.

text:
    A95A2055, A95A2056.
    FENIMORE v. THE STATE (two cases).
    (463 SE2d 55)
   Beasley, Chief Judge.

An indictment was returned against Fenimore charging him with multiple counts of financial transaction card fraud (OCGA § 16-9-33 (f)) based on allegations that between December 24, 1992, and January 4, 1993, he had remitted for payment amounts totaling approximately $42,000 for sales not made by the cardholder Ferguson. He was convicted of all counts.

In Case No. A95A2055, he appeals the denial of his motion for new trial, and in Case No. A95A2056, he appeals the denial of his motion for bond pending post-trial relief. He has requested expedited consideration, to which he is entitled because he is incarcerated. OCGA § 5-6-43 (c).

The evidence showed that during the time in question, Fenimore owned a bar featuring adult entertainment. Ferguson, a regular customer, was an active alcoholic who was going through a divorce and was under the care of a psychiatrist. Exorbitant amounts were charged at the bar to Ferguson’s corporate credit card. Prior to trial, he committed suicide.

At the commencement of the trial, the State sought to invoke OCGA § 24-3-1 (b)’s unavailable-witness exception to the hearsay rule as a basis for admitting transcripts of taped statements made by Ferguson. These were created during interviews by a sheriffs department investigator and assistant district attorney on February 26, 1993, and again by the investigator on March 23. Fenimore objected on grounds that the statements were self-serving and not sufficiently trustworthy. The court overruled the objection, stating that the weight and credit to be given such evidence is a question for the jury.

Before each interview, Ferguson was given Miranda warnings by the investigator. During the first interview, he stated that he did not spend as much money at the bar as appeared on the charge slips and that on various of the charge slips his signature had been forged and numbers had been altered. During the second interview, Ferguson was informed that statements he had made in the prior interview had been verified by employees of the bar.

At trial, these employees testified that when Ferguson would come into the bar and “run a tab,” Fenimore would calculate the amount owed. According to these employees, Fenimore would place charges on the card far in excess of the amounts Ferguson had authorized or spent, and he would also alter the amounts of the charges. They testified that when Ferguson signed the charge slips, he was extremely intoxicated, that he signed some charge slips which were in blank, and that some of the signatures on the charge slips were markedly different from Ferguson’s.

Ferguson was terminated from his employment because of his misuse of the corporate credit card. His job supervisor testified that Ferguson approached him about the charges, because they were far beyond what Ferguson remembered spending at the bar and he was not financially able to pay them. This conversation occurred prior to the taped statements. According to the supervisor, Ferguson was instructed that the credit card had been issued to him to pay for business-related travel expenses. An employee could use the card for personal expenses, however, without submitting a request for reimbursement. Ferguson had not sought reimbursement for the charges he had incurred at Fenimore’s bar and was personally liable for them.

Fenimore testified that Ferguson had used the credit card at the bar to spend exorbitant amounts on drinks and tips and that he had received large amounts of cash through the purchase of gift certificates. He denied forging or altering credit card slips or having Ferguson sign slips in blank.

In his sole enumeration of error, Fenimore contends that the court erred in admitting the hearsay declarations made by Ferguson to the law enforcement authorities because there were insufficient guarantees of trustworthiness.

“The two prerequisites for the admission of hearsay because of necessity are 1) necessity, and 2) particularized guarantees of trustworthiness. [Cit.]” Roper v. State, 263 Ga. 201, 202 (2) (429 SE2d 668) (1993).

The first prerequisite is satisfied since the victim is deceased.

As to the second, the declaration is admissible “only if it bears adequate ‘indicia of reliability.’ Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.” (Footnote omitted.) Ohio v. Roberts, 448 U. S. 56, 66 (100 SC 2531, 65 LE2d 597) (1980). In Idaho v. Wright, 497 U. S. 805 (110 SC 3139, 111 LE2d 638) (1990), “[t]he Court held that a finding of trustworthiness must be based on a consideration of the totality of the circumstances, but that ‘the relevant circumstances include only those that surround the making of the statement and that render the declarant worthy of belief.’ Id. 497 U. S. at [819]. . . . The standard is whether ‘the declarant’s truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility.’ Id. at [820].” United States v. Accetturo, 966 F2d 631, 634 (11th Cir. 1992). “ ‘[T]here must be something present which the law considers a substitute for the oath of the declarant and his cross examination by the party against whom the hearsay is offered. . . .’ [Cits.]” (Emphasis omitted.) Higgs v. State, 256 Ga. 606, 607-608 (3) (351 SE2d 448) (1987). The Supreme Court early grounded the exception on “the extreme improbability of [the statement’s] falsity.” Massee-Felton Lumber Co. v. Sirmans, 122 Ga. 297, 299 (50 SE 92) (1905).

The State submits that five indicia of reliability justified admission: (1) Ferguson’s statements to his job supervisor were admissible as declarations against his pecuniary interest in continued employment, OCGA § 24-3-8, and any other statements he made about these credit card charges were admissible since they were intertwined with these admissions against interest; (2) he consistently denied authorizing the amounts and in some cases the existence of the charges at issue; (3) he did not directly point the finger of blame at Fenimore, and where he had no knowledge as to Fenimore’s involvement, he freely admitted such lack of knowledge; (4) he knew that his assertions about these matters would be further investigated; and (5) the manner of questioning was not leading or suggestive.

Ferguson’s denials to law enforcement personnel that he had authorized the charges in the amounts appearing on the credit card slips were not admissible as intertwined with his admission to his job supervisor that he had authorized charges but only in lesser amounts. Even if the employment-related statement was at bottom an admission against interest, it was separate from, independent of, and not entangled with the statements made by him to the law enforcement authorities. There was no bridge on which to export to the latter that higher degree of trustworthiness that does not require the opportunity for cross-examination. Compare Massee-Felton Lumber Co. v. Sirmans, supra, where unfavorable aspects preponderated against favorable aspects so as to allow admission of the decedent’s declaration. Even if the statements to the employer met the balancing test of Massee-Felton, the lack of relation to the other statements precludes admissibility.

Ferguson made the latter statements in the course of being interviewed while a suspect in a criminal investigation. Ferguson could have been held criminally responsible, as well as civilly liable, if he had authorized the credit card charges. His denial that he had authorized them was in both his pecuniary and penal interest and was thus self-serving. “It is a general rule that self-serving declarations — that is, statements favorable to the interest of the declarant — are not admissible in evidence as proof of the facts asserted. . . . The rule which renders self-serving statements inadmissible is the same in criminal prosecutions as in civil actions.” Chrysler Motors Corp. v. Davis, 226 Ga. 221, 224-225 (1) (173 SE2d 691) (1970); compare White v. White, 262 Ga. 168 (415 SE2d 467) (1992); Swain v. C & S Bank of Albany, 258 Ga. 547, 548 (1) (372 SE2d 423) (1988).

Moreover, there are contradictions in Ferguson’s first and second statements to the authorities concerning the amounts he spent at the bar. See Mallory v. State, 261 Ga. 625, 628 (2) (409 SE2d 839) (1991). In addition, one of the employees who testified on behalf of the State contradicted statements by Ferguson as to when he was at the bar as well as how much he had spent. Furthermore, Ferguson told the authorities that he had not conversed with anyone at his company with regard to the intended use of the credit card; his job supervisor denied this.

Decided October 16, 1995

Michael C. Garrett, K. Emerson Gilliard, for appellant.

Daniel J. Craig, District Attorney, Nancy J. Berger, Charles R. Sheppard, Assistant District Attorneys, for appellee.

The totality of the circumstances surrounding Ferguson’s statements to the authorities leave truthfulness in doubt. The State did not carry its burden of showing that these hearsay statements contain circumstantial guarantees of trustworthiness, and the court erred in admitting them.

Although Ferguson’s hearsay statements are corroborated to a degree by the testimony of other witnesses, “the presence of corroborating evidence does not support a determination that a statement possesses sufficient indicia of reliability; instead, such corroborating evidence ‘more appropriately indicates that any error in admitting the statement might be harmless. . . .’ Idaho v. Wright, [supra].” Roper, supra at 203, n. 2. The State does not argue, and we do not find, harmless error. It is true that, as in Mallory, supra at 628, “without the admission the evidence adduced at trial is sufficient to support the verdict of guilty under the standard announced in Jackson v. Virginia, [443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979)]. Nevertheless, we cannot say[, applying the test in Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976),] that this inadmissible hearsay evidence did not influence the jury in reaching its verdict.” We reach this conclusion cognizant of the fact that our ruling does not eliminate the deceased’s statements to his employer.

Because we have decided the main appeal, the appeal from the denial of bond pending post-trial relief is moot. Rottenberg v. State, 184 Ga. App. 331, 332 (3) (361 SE2d 533) (1987).

Judgment reversed in Case No. A95A2055. Appeal dismissed in Case No. A95A2056.

Pope, P. J., and Ruffin, J., concur.

       Although defendant objected at trial without avail to the admission of Ferguson’s hearsay statements to his employer, the issue is not raised on appeal. Consequently, we do not decide it.


author: Blackburn, Judge.

text:
    A95A2135.
    MOBLEY v. THE STATE.
    (463 SE2d 166)
   Blackburn, Judge.

Following a jury trial, the appellant, Allan Mobley, Jr., was found guilty but mentally ill of one count each of burglary, aggravated assault upon a police officer, kidnapping with bodily injury, possession of a firearm during the commission of a felony, fleeing or attempting to elude a police officer, and reckless driving and three counts of kidnapping. The trial court denied Mobley’s motion for new trial, and he now appeals.

The charges arise out of circumstances in which April Daly, a former co-worker at a Gwinnett County movie theater, spurned Mobley’s advances as he sought a romantic relationship with her. Obsessed with Daly and distraught, Mobley kidnapped her and three others at the theater, first holding the group at gunpoint for several hours and then taking Daly alone by gunpoint and driving to South Carolina, Florida, and Tennessee. After returning to Gwinnett County, Mobley, in a car which he forced Daly to drive, was pursued by the police in a high speed chase which ended when Daly lost control, flipped the vehicle, and rammed several police cars.

1. Mobley first asserts that the trial court erred by improperly commenting upon his evidence and certain questions posed by his trial counsel. Mobley cites many such instances in the transcript; however, he does not argue, nor are we able to find, that he timely objected to such comments at trial. “ ‘A party can not during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later. [Cits.]’ ” Johnson v. State, 226 Ga. 511, 514 (175 SE2d 840) (1970). Accordingly, this enumeration of error presents nothing for review.

2. Mobley next contends that the trial court erred by failing to recharge the jury on the issue of insanity. Specifically, Mobley argues that a request from the jury during deliberations asking for copies of the definitions of “insane” and “mentally ill” and a later question asking for a definition of “guilty but mentally ill” obligated the trial court to recharge its entire original charge on insanity to ensure the jury’s understanding of the difference between not guilty by reason of insanity and guilty but mentally ill.

Over objection, the trial court recharged the jury as to the definition of “mentally ill” and “guilty but mentally ill,” observing that “it may confuse the jury more than anything to give them a seven page charge when what they’ve asked for is a two paragraph charge.” Before doing so, the trial court confirmed that the jury desired a recharge only as to the definition of “guilty but mentally ill.” The recharge was given upon cautionary language advising the jury not to give it greater emphasis than the remainder of the charge.

“In determining whether the recharge contain[s] error, it is fundamental that we must look at not only the recharge but the original charge as well, as jury instructions must be read and considered as a whole in determining whether the charges contain error. Where a charge as a whole substantially presents issues in such a way as is not likely to confuse the jury even though a portion of the charge may not be as clear and precise as could be desired, a reviewing court will not disturb a verdict amply authorized by the evidence.” (Citations and punctuation omitted.) Taylor v. State, 195 Ga. App. 314, 315 (393 SE2d 690) (1990). Reviewing the recharge and the charge as a whole, we conclude that the complained of recharge would not mislead a jury of average intelligence. Also, we find the jury’s verdict to be well supported by the evidence. Thus, we find no error.

3. Mobley last enumerates that the trial court improperly put his character in issue by admitting testimony evidencing uncharged misconduct.

Mobley first challenges the testimony given by Matthew C. Brown, one of the group he initially abducted at gunpoint insofar as it indicated that Mobley told him that he had purchased the gun used in the kidnapping from a drug dealer friend for $50. Mobley argues that he was prejudiced by the trial court’s failure to give a curative instruction at the time of his objection. However, contrary to Mobley’s argument, our review of the record indicates that the trial court instructed the jury that it was “to give no weight at all, to this witness’ statement about the defendant’s drug dealing friends, or that he knows what kind of friends he has. Disregard it, entirely.” Mobley timely requested and received an appropriate curative instruction. “[W]e generally will not grant more appellate relief than that actually prayed for at trial.” (Citations and punctuation omitted.) Morrill v. State, 216 Ga. App. 468, 474 (454 SE2d 796) (1995). We decline to do so here.

Mobley next challenges Daly’s testimony that Mobley told her he had gotten his gun from a drug dealer, that he sexually assaulted her, and that he committed an armed robbery while they were in Tennessee during the course of her kidnapping. Mobley failed to object at trial to Daly’s testimony concerning the weapon he used in the commission of the offense and her claim of sexual assault. We do not consider issues raised for the first time on appeal. See Porado v. State, 211 Ga. App. 728, 730 (440 SE2d 690) (1994). Any claim by Mobley of error to such testimony was waived.

Mobley timely objected to Daly’s testimony accusing him of armed robbery while they were in Tennessee; however, such offense occurred “during the commission of one of the offenses for which [Mobley] was indicted and was an integral part of the res gestae. Surrounding circumstances constituting part of the res gestae may always be shown to the jury along with the principal fact, and their admissibility is within the discretion of the trial court. Hence, acts and circumstances forming a part or continuation of the main transaction are admissible as res gestae and it does not matter that the act is another criminal offense. The fact that such part of the res gestae incidentally placed [Mobley’s] character in issue does not render it inadmissible. A trial judge’s determination that evidence offered as part of the res gestae is sufficiently informative and reliable as to warrant being considered will not be disturbed on appeal unless that determination is clearly erroneous.” (Citations and punctuation omitted; emphasis in original.) Belcher v. State, 201 Ga. App. 139, 140-141 (410 SE2d 344) (1991). In light of the foregoing, there is no basis for reversal upon the evidence complained of, and this enumeration of error is without merit.

Decided October 16, 1995.

Robert Greenwald, for appellant.

Daniel J. Porter, District Attorney, Phil Wiley, Neal R. Bevans, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.